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Failure to Trace the Allegedly Separate Funds Used for the Purchase of Property During the Marriage Allows the Court to Treat the Property as Marital

The Second Department found a lot of mistakes in the division of property and the support awards made by Supreme Court.  The discussion of each category of mistake is substantive enough to be instructive.  With respect to an improperly awarded separate property credit, the court explained that a party’s failure to trace the source of the funds for a purchase made during the marriage allows the court to treat the property as marital:

“Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . Here, BSH was formed and the building was acquired during the marriage, and the plaintiff failed to meet his burden of tracing the use of claimed separate funds to establish that they were used for the purchase of his portion of the property’s acquisition costs … . Marital property is to be viewed broadly, while separate property is to be viewed narrowly … . Where, as here, a party fails to trace sources of money claimed to be separate property, a court may treat it as marital property… . Hymowitz v Hymowitz, 2014 NY Slip Op 05306, 2nd Dept 7-16-14

 

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Police Did Not Have Sufficient Information to Justify Request that 12-Year-Old Lift His Shirt–Weapon Recovered After Juvenile’s Refusal (and a Police Pursuit) Should Have Been Suppressed

The Second Department determined the police did not have sufficient information to justify a request that appellant, who was 12 years old, to lift his shirt.  The weapon found on the appellant’s person should have been suppressed:

At issue here is whether the officers could ask the appellant to lift his shirt, even after he refused, and then pursue him as he fled the scene. Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification …, may be asked whether he has weapons, and may be asked to remove his hands from his pockets … . However, asking a person to open his or her coat is an “intrusive step” which requires sufficient evidence of criminal activity to permit more than an inquiry by the police … . Here, the police acknowledge they did not see an object until they took their “intrusive step” of demanding that the appellant lift up the front of his shirt after he refused to do so, whereupon a police officer pursued him with his gun drawn.

The appellant had the “right to be let alone” … . The police may lawfully pursue an individual if they have a reasonable suspicion that he or she has committed or is about to commit a crime … . However, in this case, the police only acquired a basis to pursue the appellant after they took the intrusive step of demanding that he raise the front of his shirt and saw the butt of a gun. Since the pursuit of the appellant was unlawful, the gun which he abandoned in response to the pursuit should have been suppressed… . Matter of Shakir J, 2014 NY Slip Op 05336, 2nd Dept 7-16-14

 

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Where There Has Been a Failure of a Material Condition of a Judicial Instrument of Surrender (of Guardianship and Custody of a Child), the Parent May Bring an Action to Revoke the Surrender Instrument

The Third Department, in a full-fledged opinion by Justice Devine, determined, where a parent agrees to surrender guardianship and custody of a child pursuant to a judicial instrument of surrender, a substantial failure of a material condition of the instrument allows the parent to bring an action to revoke the instrument.  In this case the persons specified in the surrender would not adopt the child:

In Matter of Christopher F. (supra), we were presented with a biological parent’s application to revoke a judicial instrument of surrender. We concluded that, although no procedures beyond notification of the parent were set forth in the statute at that time (see Social Services Law § 383-c [6] [former (c)], as added by L 1990, ch 479, § 2), “based upon our common-sense interpretation of the applicable statutory framework,” the failure of the provision of the surrender instrument conditioning the biological parent’s surrender on adoption of the child by the person specified in the surrender “permitted [the biological parent] to revoke her consent to the adoption” … . Accordingly, we granted the parent’s application for revocation of the judicial surrender. “‘The Legislature is . . . presumed to be aware of the decisional and statute law in existence at the time of an enactment'” … . Since the subsequent statutory amendments did nothing to abrogate or replace the relevant portions of our holding in Matter of Christopher F. (260 AD2d at 99-101), we conclude that, when there has been a substantial failure of a material condition of a judicial instrument of surrender, the procedure we endorsed in Matter of Christopher F. (supra) remains the appropriate procedure. In such a circumstance, the surrendering parent may bring an application before the court — either by petition or by motion — for revocation of the instrument (see id. at 101). Matter of Bentley XX, 2014 NY Slip Op 05222, 3rd Dept 7-10-14

 

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Substantial Evidence Supported Finding that Allowing a Child to Wander Away Near a Four-Lane Highway Constituted Maltreatment

The Third Department determined the Commissioner of Children and Family Services properly denied a petition to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged.  Petitioner called law enforcement because her grandchild had wandered away from her front yard and was found unharmed about 200 yards away.  There was no fence and the home faced a four-lane highway:

Substantial evidence supports the finding of maltreatment. In order to establish maltreatment, the agency was required “to demonstrate by a fair preponderance of the evidence that ‘the child’s physical, mental or emotional condition ha[d] been impaired or [was] in imminent danger of becoming impaired as a result of the [caregiver’s] failure to exercise a minimum degree of care'” in providing the child with appropriate supervision … . Upon review of such an administrative determination, “this Court’s inquiry is limited to whether the decision is rational and supported by substantial evidence” … . A determination is supported by substantial evidence “when reasonable minds could adequately accept the conclusion or ultimate fact based on the relevant proof” … .

Although petitioner’s home is at the end of a dead-end street, testimony by respondent Michelle Kelley, a caseworker for the Saratoga County Department of Social Services, and photographs introduced into evidence established that the home also faces a four-lane divided highway with a speed limit ranging from 45 to 55 miles per hour. Notably, the same evidence showed that there is no fence, or any similar physical barrier, directly between petitioner’s front yard and this highway. Matter of Cheryl Z v Carrion, 2014 NY Slip Op 05226, 3rd Dept 7-10-14

 

As a Matter of Discretion, the Court Can Grant a Separate Property Credit for Property Which Was Originally Separate But Which Was “Transmuted” into Marital Property (Overruling Precedent)—the Credit Was Properly Denied Here

The Third Department determined that, under the facts of the case, Supreme Court properly denied the wife a credit for the marital home which originally was her separate property.  The wife subsequently put the property in both her and her husband’s names and the property was used to consolidate the debts of both husband and wife.  However, the Third Department took the opportunity to explain that property which is originally separate but which is then “transmuted” to marital property can be the basis of a separate-property credit, overruling a case relied upon by Supreme Court to deny the credit.  The credit can be applied as a matter of discretion:

…[T]o the limited extent that Campfield [95 AD3d 1429] may be read to limit a court’s discretion to award a separate property credit to a spouse, like the wife, who transmutes separate property into marital property without changing the nature of the property itself, it should no longer be followed. As we have subsequently noted without reference to the way in which a marital asset was acquired, credits are often given for the value of the former separate property (see Murray v Murray, 101 AD3d at 1321). We have also subsequently explained that the decision to award a separate property origination credit in such a situation is a determination left to the sound discretion of Supreme Court (see Alecca v Alecca, 111 AD3d at 1128; Murray v Murray, 101 AD3d at 1321). Therefore, our own jurisprudence subsequent to Campfield indicates that such credit is not precluded as a matter of law when separate property has been transmuted into marital property. Myers v Myers, 2014 NY Slip Op 05228, 3rd Dept 7-10-14

 

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Child Should Have Been Placed with Grandmother—Placement Criteria Explained

The Second Department determined Family Court should not have denied the petition to place the child with the grandmother.  The court explained the placement procedure and criteria:

Family Court Act § 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home. When the decision to remove the child was made, the DSS was obligated to locate the child’s relatives, including her grandmother, and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child (see Family Ct Act § 1017[1]). The Family Court was then required to determine if the child could suitably reside with any such relative (see Family Ct Act § 1017[1][a], [b]). If a suitable relative existed, the Family Court would either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act § 1017[2][a]). Only if no suitable relative could be located would the Family Court consider whether another placement would be appropriate (see Family Ct Act former § 1017[2][b]). With respect to an out-of-state relative, Social Services Law § 374-a requires that an ICPC home study must first be conducted before placing the child with that individual.

“One purpose of Family Court Act § 1017 is to help safeguard the infant’s physical, mental and emotional well-being. . . Placement with a suitable relative can help the child by maintaining family ties and reducing the trauma of removal. In making a determination of placement [the] Family Court must consider not only the custodian’s ability to provide adequate shelter, but all the facts and circumstances relevant to the child’s best interest” … . Matter of Paige G, 2014 NY Slip Op 05182, 2nd Dept 7-9-14

 

Procedure Used by Family Court in Custody-Modification Proceeding Did Not Meet the Criteria for a Fact-Finding Hearing

The Third Department determined the proceeding Family Court used in a custody-modification proceeding did not meet the criteria for the required fact-finding hearing:

Family Court erred in failing to conduct a fact-finding hearing. The final appearance was not a true hearing; the parties should have been “afforded a full and fair opportunity to be heard” … . While Family Court stated at the outset of the August 2013 appearance that the matter was set for a hearing that day, the court then allowed each party to deliver a long, unsworn narrative comprised mostly of hearsay — as the court had permitted the parties to do at each previous appearance. After the parties had discussed their views of the situation for an extended time, they were asked to swear to the statements they had made, following which the court rendered a determination without any opportunity for the parties to avail themselves of the usual attributes of a hearing, including the opportunity to present opening and closing statements, to present any other evidence or to conduct cross-examination (see id.). Thus, the court erred in modifying the prior order without holding a fact-finding hearing … . Matter of McCullough v Harris, 2014 NY Slip Op 04984, 3rd Dept 7-3-14

 

Summary Judgment Properly Awarded in Derivative Child-Neglect Proceeding

The Third Department determined summary judgment was properly awarded in a derivative child-neglect proceeding, based in large part on findings made in prior neglect proceedings:

“‘Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists'” … . Neglect or abuse of one child typically may not serve as the sole support for a finding of derivative abuse or neglect; however, where the proof of “past neglect and abuse demonstrably ‘evidence[s] fundamental flaws in the respondent’s understanding of the duties of parenthood, proof of abuse or neglect of other children is alone sufficient to sustain a finding of abuse or neglect of another child'” … . A prior determination should be “sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist” …, but “there is no ‘bright-line, temporal rule beyond which we will not consider older child protective determinations'” … .

Here, petitioner established a prima facie case for summary judgment with the affidavit of its counsel setting forth the prior proceedings, the Family Court records of such proceedings and an affidavit from a caseworker. The nature of the acts that Family Court had found in the 2010 proceedings as having been perpetrated upon a child entrusted to respondent’s care established a fundamental defect in respondent’s understanding of parental duties. The caseworker set forth, among other things, respondent’s failure to complete preventive services, including sex offender treatment. Although respondent’s affidavit in opposition offered explanations for his inability to complete some services, he acknowledged that he had not yet completed sex offender treatment. Given the nature of the 2008 acts found in the 2010 proceedings, together with the fact that respondent is still in, but has not yet successfully completed, sex offender treatment, we are unpersuaded that Family Court erred in granting summary judgment… . Matter of Ilonni I…, 2014 NY Slip Op 04987, 3rd Dept 7-3-14

 

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Family Court Should Have Determined Child Eligible to Apply for Special Immigrant Juvenile Status

The Second Department reversed Family Court finding that an order making the requisite Special Immigrant Juvenile Status findings should have been granted:

Here the Family Court properly found that the child is under the age of 21, unmarried, and that it would not be in his best interests to be returned to Honduras … . In addition, inasmuch as the Family Court granted the guardianship petition, the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i)… . However, contrary to the court’s determination, based upon our independent factual review, we find that the record, including detailed affidavits from the child, fully supports the petitioner’s contention that, because his father neglected and abandoned him, reunification with his father is not a viable option … . The fact that the child’s mother did not also neglect and abandon him does not preclude the issuance of the order requested … . Matter of Miguel C, -N, 2014 NY Slip Op 04923, 2nd Dept 7-2-14

Same result in Matter of Gabriela Y U M…, 2014 NY Slip Op 04937, 2nd Dept 7-2-14

 

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Admissible Hearsay Concerning the Child’s Injuries and Evidence Relevant to the Child’s Motivation to Lie Should Not Have Been Excluded from the Neglect Proceeding

The Second Department determined Family Court erred in excluding evidence from a neglect proceeding.  The excluded evidence included hearsay statements by a police officer included in the Investigative Progress notes indicating the child’s (Jonell H’s) bruises were not severe, and evidence relevant to the child’s motivation to lie:

At the fact-finding hearing, the Family Court erred in excluding from evidence Investigation Progress notes dated April 18, 2010, indicating that a police officer had informed a caseworker that the officer had visited Jonell H. shortly after the alleged neglect took place and observed that the bruises on her right arm were “not serious” and that “[t]here [are] not other visible bruises/marks observed” on her. These notes were admissible under the business records exception to the hearsay rule since the caseworker was under a duty to maintain a comprehensive case record for Jonell H., and the officer had a duty to report his or her observations of her condition … .

The Family Court also erred in precluding the mother from calling four particular witnesses to testify. Those witnesses would have given testimony pertaining to Jonell H.’s motivation to lie. Extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground … . Similarly, the court should not have excluded from evidence Family Service Progress notes containing statements by Jonell H.’s foster parents relevant to her motivation to lie. Foster parents are “employees who [are] under a business duty to timely record and report all matters concerning the physical, mental, and emotional conditions of the children in their care to the foster care agency” … .  Matter of Grayson J, 2014 NY Slip Op 04934, 2nd Dept 7-2-14

 

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