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Denial of Mother’s Request to Relocate Reversed, Factors Described

The Second Department reversed Family Court and determined the relocation of the child with the mother was in the best interests of the child.  The mother had remarried, her husband and the child got along well, her husband had a good job and a three bedroom house in Georgia, adequate visitation with the child’s father could be arranged, and the child wished to move to Georgia. The court described the analytical factors:

The Family Court erred in denying the mother’s modification petition so as to allow her to relocate to Georgia with the subject child. A parent’s relocation request must be considered on its own merits with due consideration of all the relevant circumstances, and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child … . Courts are free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and both parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. It is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests … . In relocation proceedings, this Court’s authority is as broad as that of the hearing court. A relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record … . The Family Court’s determination here was not supported by a sound and substantial basis in the record. Matter of Hall v Hall, 2014 NY Slip Op 04487, 2nd Dept 6-18-14

 

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Juvenile Entitled to Petition for Special Immigrant Juvenile Status—Family Court’s Ruling to the Contrary Reversed

The Second Department reversed Family Court and determined the subject child was eligible to petition for special immigrant juvenile status:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is an undocumented resident who is, inter alia, under 21 years of age, unmarried, and “declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States” (8 USC § 1101[a][27][J][i]). For the juvenile to qualify for SIJS status, it must be also determined that reunification with “1 or both” of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (id.), and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]).

Based upon our independent factual review, we find that the record, which includes affidavits from Cristal and her mother, fully supports the conclusion that Cristal was abandoned by her father. Cristal never lived with her father; he visited her only once. He never provided any financial support, and failed to communicate with her. Thus, Cristal established that reunification with her father was not viable due to abandonment … . Accordingly, the Family Court should have granted Cristal’s motion. Matter of Cristal MRM, 2014 NY Slip Op 04496, 2nd Dept 6-18-14

 

Petitioner Was Not Estopped from Denying Paternity—Family Court’s Ruling to the Contrary Reversed

The Second Department reversed Family Court and determined the petitioner was not estopped from denying his paternity of the child. No parental relationship had developed, the child did not know the petitioner and the mother had told the petitioner he was not the child’s father:

“The purpose of equitable estoppel is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position'” … . Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity,” in light of the child’s justifiable reliance upon such representations, and the resulting harm that the man’s denial of paternity would engender … . “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship'” … . The doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child (see Family Ct Act § 418[a]…).

Here, the Family Court improvidently exercised its discretion in concluding that the petitioner was estopped from denying his paternity of the child (see Family Ct Act § 418[a]). The hearing evidence demonstrated that the petitioner did not have a parent-child relationship since the child was approximately three years old at the time when the petitioner learned from the mother that he was not the child’s father and the parties separated. The mother testified that the child did not know the petitioner as his father and that the two had not seen each other in years. There was no evidence that the child would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward … . Matter of Felix M v Leonardo RC, 2014 NY Slip Op 04491, 2nd Dept 6-18-14

 

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Children’s Out-of-Court Statements Sufficiently Corroborated

In upholding a finding of neglect, the Second Department determined the out-of-court statements of the children were sufficiently corroborated to be admissible:

In a child protective proceeding, “[u]nsworn out-of-court statements of the [subject child] may be received and, if properly corroborated, will support a finding of abuse or neglect …  * * *

Here, the out-of-court statements of siblings Alysa and Joseph to the caseworker were corroborated by the caseworker’s personal observations, the two children’s own cross-corroborating statements, confirmation of certain events by their older sister Selena and brother Mateo, and certain statements by the mother, and were properly considered by the Family Court (see Family Ct Act § 1046[a][vi]; …).  Matter of Mateo S. 2014 MY Slip Op 04497, 2nd Dept 6-18-14

Abuse Finding, Based Upon an Unsatisfactory Explanation for the Child’s Injury, Reversed Based Upon the Testimony of Petitioner’s Medical Witness Who Stated the Injury Could Have Been Caused by a Fall and Described the Child as Basically Asymptomatic and Happy at the Hospital

The Second Department reversed Family Court’s finding of abuse and derivative neglect based upon the injury to one child (Janelle P).  The petitioner had alleged the appellants were unable to provide a satisfactory explanation for the child’s injury.  The court noted the testimony of petitioner’s expert, a physician at the hospital where the child was treated, which indicated the injury could have been caused by a fall and the child did not appear to be in any pain and was happy:

A prima facie case of child abuse or neglect may be established by evidence of an injury which ordinarily would not occur absent an act or omission of the responsible caretaker (see Family Ct Act § 1046 [a][ii]…). “If the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of parental culpability,’ although the burden of proof always remains with the petitioner” … .

Here, the evidence presented by the petitioner did not establish a prima facie case of abuse against the appellants. The petitioner’s expert medical witness, a physician at the hospital where Janelle P. was admitted, testified that Janelle P. was diagnosed with a millimeter-sized subdural hematoma and “encephalo hematoma” caused by blunt force trauma. However, he opined that the child’s injury could have been caused by a fall of a couple feet onto a hard surface. Moreover, he testified that there was no discoloration with the swelling, that the child was not in any pain, and that aside from the swelling, the child was asymptomatic. He also testified that when he examined the child, she looked “great,” and was smiling and happy. Matter of Jaylin C, 2014 NY Slip Op 04482m 2nd Dept 6-18-14

 

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Failure to Advise Respondent of His Right to Counsel at a Temporary Removal Hearing Not Condoned—Reversal Not Required Because No Evidence from the Temporary Removal Hearing Was Elicited in the Subsequent Neglect Proceedings

The Third Department determined that Family Court’s failure to advise respondent on his right to counsel in a temporary removal hearing did not require the reversal of a subsequent neglect adjudication.  None of the evidence elicited at the temporary removal hearing was used during the neglect proceedings:

It is well established that failure to fully advise a respondent of his or her right to counsel is a deprivation of a fundamental right that requires reversal of any “resulting adjudication” in a proceeding pursuant to Family Ct Act article 10, whether or not prejudice is shown … . “[A] Family Ct Act § 1022 removal hearing is no exception” to this requirement … . Here, Family Court undisputedly failed to advise respondent of his right to counsel “[w]hen [he] first appear[ed] in court . . . before proceeding” with the temporary removal hearing (Family Ct Act § 262 [a]). We do not condone this failure … .

Nonetheless, we agree with the attorney for the children that the circumstances present here are distinguished from the precedent cited above –not due to the lack of any resulting prejudice, which would not suffice — but rather and specifically relative to whether the determination ultimately rendered after the fact-finding hearing constituted a “resulting adjudication.” Here, the neglect adjudication was based solely upon evidence elicited during the course of the fact-finding hearing; no testimony from the temporary removal hearing — in which respondent did not participate — was introduced. The adjudication following fact-finding did not therefore rely, in any part, on the evidence adduced at the temporary removal hearing … . Matter of Elijah ZZ, 2014 NY Slip Op 04280, 3rd Dept 6-12-14

 

Suspended Judgment Should Not Have Been Granted in Termination-of-Parental-Rights Proceeding

The Second Department, over a partial dissent, determined Family Court should not have granted a suspended judgment in a proceeding for the termination of parental rights:

After a dispositional hearing on a petition to terminate parental rights, a court may dismiss the petition, terminate parental rights and commit guardianship to the agency, or suspend judgment for a period of up to one year (see Family Ct Act §§ 631, 633[b]). “A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords a brief grace period designed to prepare the parent to be reunited with the child'” … . Although this disposition provides a parent with a “second chance,” it is appropriate only where it is also in the best interests of the children … . A suspended judgment is not appropriate where a parent has failed to gain insight into the problems which led to the children’s removal in the first instance … . Moreover, to warrant a suspended judgment, “a parent must demonstrate that progress has been made to overcome the specific problems that led to the removal of the children. Mere attempts are not sufficient” … . Matter of Chanel C, 2014 NY Slip Op 04226, 2nd Dept 6-11-14

 

Mother’s Request to Relocate Properly Granted

The Second Department determined mother had made a sufficient showing to justify relocating with her child to Michigan, where she could afford an apartment based upon her disability payments alone.  The court explained the operative analytic principles:

“When reviewing a custodial parent’s request to relocate, the court’s primary focus must be on the best interests of the child” … . “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child’s best interests” … . “Although each custodial parent’s request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the [child] and each parent, the impact of the move on the quantity and quality of the [child’s] future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the [child] may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the [child] through suitable visitation arrangements” … . In relocation determinations, this Court’s authority is as broad as that of the hearing court … . Thus, a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record … . Ortiz v Ortiz, 2014 NY Slip Op 04202, 2nd Dept 6-11-14

 

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Mother’s Failure to Seek Immediate Medical Assistance for Child Fatally Injured by Her Boyfriend Supported a Severe Abuse Finding and a Derivative Severe Abuse Finding—Amendment to Family Court Act 1051 (e), Removing the “Diligent Efforts” Requirement, Imposed Retroactively to Support Severe Abuse Finding

The Second Department determined an amendment to Family Court Act 1051 (e) could be applied retroactively to support a finding of severe abuse against mother in an article 10 proceeding.  Although the injuries to the child (Anniyah) were inflicted by the mother’s boyfriend, the mother failed to seek immediate medical care and the child died.  The instant proceedings were derivative abuse proceedings involving a sibling (Amira L):

A parent who stands by while others inflict harm may be found responsible for that harm (see Family Ct Act § 1012[e][ii]). And, derivative findings of abuse may be “predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well” … . Accordingly, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct Act § 1046[a][i]… ). Thus, in this proceeding regarding the subject child, Amirah L., proof of the mother’s acts and omissions that ultimately resulted in Anniyah’s death were admissible. * * *

When the fact-finding hearing was held in this case, the Family Court Act did not permit a finding of severe abuse solely on the element of the mother’s conduct (see Social Services Law § 384-b[8][a][i]), but also required a finding as to ACS’s “diligent efforts” or excuse from exercising “diligent efforts” (see Social Services Law § 384-b[8][a][iv]). During the pendency of this appeal, however, the Legislature amended Family Court Act § 1051(e), so that a “diligent efforts” finding is no longer a required element of a finding of severe abuse in the context of a Family Court Act article 10 proceeding (see L 2013, ch 430, § 1; cf. Social Services Law § 384-b[8]). The statutory amendment may be applied retroactively in this case in light of the nature and purpose of the amendment, the Legislature’s expression of urgency in its application, and the absence of any due process violation to the mother in retroactive application …

Accordingly, upon our finding that clear and convincing evidence at the fact-finding hearing established that the mother acted recklessly, under circumstances evincing a depraved indifference to Anniyah’s life, and thereby caused Anniyah’s death, we find that the mother severely abused Anniyah and derivatively severely abused the subject child, Amirah L. Matter of Amirah L, 2014 NY Slip Op 04198, 2nd Dept 6-11-14

 

Priority in Custody Disputes Given to Party Initially Awarded Custody

The Second Department, in affirming Family Court’s denial of a motion to modify a stipulated custody arrangement, noted that priority is given to the parent who was initially awarded custody:

“A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child’s best interests” … . The best interests of the child are determined by a review of the totality of the circumstances … . In this regard, the court should consider whether the alleged changed circumstances indicate that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement … .

” Priority in custody disputes should usually be given to the parent who was first awarded custody . . . because this policy assures stability in the child’s life'” … . “Thus, [w]hen . . . there is no indication that a change of custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his [or her] life'” … . McCance v De Witt, 2014 NY Slip Op 04175, 2nd Dept 6-11-14

 

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