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Petition for Modification of Custody Should Not Have Been Dismissed Without a Hearing

The Fourth Department determined Family Court should not have dismissed mother’s petition for a modification of custody without holding a hearing:

It is well settled that a party seeking a change in an established custody arrangement must show “a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child[ren]” … . Although a “hearing is not automatically required whenever a parent seeks modification of a custody order”… , we conclude that the mother made a sufficient evidentiary showing of a change in circumstances to warrant a hearing … . “[T]he mother’s allegations that [the father] imposed excessive and inappropriate discipline on the subject children, including corporal punishment, [were] sufficient to warrant a hearing” … , as were the mother’s allegations that the father had refused to permit her to exercise visitation with the subject children for four weeks … . Consequently, we agree with the mother that the court erred in dismissing the petition without conducting a hearing.  Matter of Isler v Johnson, 2014 NY Slip Op 04678, 4th Dept 6-20-14

 

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Father’s Parental Rights Should Not Have Been Terminated Pursuant to Social Services Law 384-b Which Is Relevant Solely to Destitute or Dependent Children

The Fourth Department determined father’s parental rights should not have been terminated pursuant to Social Services Law 384-b, which was not applicable:

Social Services Law § 384-b is entitled “Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights” (emphasis added). A destitute child is defined as a child “who is in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care,” does not fit within the definition of an abused or neglected child and is without any parent or caretaker; “a child who is . . . absent from his or her legal residence without the consent of his or her parent, legal guardian or custodian”; “a child . . . who is without a place of shelter where supervision and care are available;” or “a person who is a former foster care youth under the age of twenty-one who was previously placed in the care and custody of [DSS] . . . and who was discharged from foster care . . . , [and] who has returned to foster care” (§ 371 [3] [a] – [d]). A dependent child is defined as “a child who is in the custody of, or wholly or partly maintained by an authorized agency or an institution, society or other organization of charitable, eleemosynary, correctional, or reformatory character” (§ 371 [7]). It is indisputable that the subject child is neither a destitute nor a dependent child. Social Services Law § 384-b is thus inapplicable to the child and may not be invoked by either the mother or DSS as a means to terminate the father’s parental rights. We therefore reverse the order and grant the father’s motion to dismiss the petition. We note, however, that our determination does not leave the mother without a remedy. She may seek to dispense with the father’s consent to adoption pursuant to Domestic Relations Law § 111 (2) (a) … . Matter of Anastasia I, 2014 NY Slip Op 04657, 4th Dept 6-20-14

 

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Party Represented by Counsel at a Scheduled Court Appearance Has Not Failed to Appear

In affirming the termination of mother’s parental rights, the Fourth Department noted that a party who is represented by an attorney at a scheduled court appearance has not failed to appear:

A party who is represented at a scheduled court appearance by an attorney has not failed to appear’ ” … . The mother initially appeared at the fact-finding hearing, and her attorney participated in the hearing by presenting an opening statement and cross-examining the first witness. The mother’s attorney chose not to participate in the remainder of the hearing when the mother left the courtroom after the first witness testified. Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default”… . Matter of Savanna G, 2014 NY Slip Op 04658, 4th Dept 6-20-14

 

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Mother Not Adequately Apprised of Her Right to Counsel—New Hearing Ordered

The Fourth Department determined a new hearing was required because mother was not adequately apprised of her right to counsel:

We agree with the mother that she was denied her right to counsel. The mother was entitled to representation based upon her status as a respondent in a Family Court Act article 6 proceeding and a person alleged to be in willful violation of a court order, and Family Court’s inquiry concerning her decision to proceed pro se was insufficient to enable the court to determine whether she knowingly, intelligently and voluntarily waived her right to counsel… . Matter of Seifert v Pastwick, 2014 NY Slip Op 04677, 4th Dept 6-20-14

 

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

 

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

 

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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

 

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