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Given the Surrounding Circumstances, the Allegation that the Juvenile Was in Possession of a Machete Was Sufficient to Allege the Juvenile Was in Possession of a “Dangerous Knife” within the Meaning of the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined a juvenile delinquency petition which alleged the juvenile was in possession of a machete sufficiently alleged the statutory element of possession of a “dangerous knife:”

The statute does not define the term “dangerous knife.” In Matter of Jamie D. (59 NY2d 589 [1983]), however, this Court held that the term, as used in the statute, “connotes a knife which may be characterized as a weapon” (id. at 592). We explained that certain knives may fall within the scope of the statute based solely on the knife's particular characteristics. For instance,”a bayonet, a stiletto, or a dagger” would come within the meaning of “dangerous knife” because those instruments are “primarily intended for use as a weapon” (id. at 592-93).

We also explained that other knives, which are designed and primarily intended for use as “utilitarian utensils,” may also come within the statutory language in at least two ways (id. at 593). First, a knife may be converted into a weapon, and second, “the circumstances of its possession, although there has been no modification of the implement, may permit a finding that [*4]on the occasion of its possession it was essentially a weapon rather than a utensil” (id. at 593).

A “machete” is generally defined as “a large, heavy knife that is used for cutting plants and as a weapon” (http://www.merriam-webster.com/dictionary/machete). While a machete has utilitarian purposes, under the circumstances of this case, it would be unreasonable to infer from the statement supporting the petition that respondent was using the machete for cutting plants. Rather, the arresting officer's description of the “machete”, with its 14-inch blade, being carried by respondent late at night on a street in Brooklyn, adequately states “circumstances of . . . possession” (Jamie D. at 593) that support the charge that defendant was carrying a weapon. Matter of Antwaine T, 2014 NY Slip Op 04042, CtApp 6-5-14

 

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In the Absence of a Colloquy Conducted by the Court, the Circumstances Indicated that Mother Knowingly, Intelligently and Voluntarily Waiver Her Right to Counsel In a Custody Proceeding

In the course of a decision affirming Family Court’s finding that a change of circumstances warranted modification of the custody arrangement, the Third Department determined the mother had knowingly, intelligently and voluntarily waived her right to counsel.  In the absence of a colloquy conducted by the court, the Third Department found that the relevant circumstances indicated the waiver was valid:

“[A]; party is entitled to self-representation once the court determines that the decision to do so is knowingly, intelligently and voluntarily made. Although it is preferable that the court’s determination be made following an appropriate colloquy with the party on the record, it may also be made upon an examination of all the potential relevant circumstances” .. . Here, at the initial court appearance on April 8, 2011, the mother was represented by an attorney, whom she states was assigned. By the next court date, July 15, 2011, she had terminated the services of the assigned attorney and appeared with a substituted retained attorney. At the next appearance, the father told the court that he was switching attorneys and, at the ensuing appearance on August 10, 2011, the mother informed the court that she wanted to terminate the services of her retained attorney. Her attorney was present and, after confirming that the mother had discussed such action with the attorney, the court permitted the attorney to withdraw.

Noting the multiple adjournments and delays that had occurred by such time, many caused by the switching of attorneys by both parties, the mother was admonished to obtain substitute counsel before the next court date. Over a month later, on September 14, 2011, the mother appeared and stated that she had not been able to retain a new attorney and was involved in a dispute with her former retained attorney about fees. The court stated that it would grant yet another adjournment, but that a trial date would be set with no more adjournments permitted, and the court also reminded the mother that she could apply for assigned counsel. The mother next appeared on November 30, 2011, stating that she was representing herself and that she was ready to proceed with the hearing. The mother had already appeared and prepared documents in many of the proceedings pertaining to the child without an attorney and, among other things, she had obtained subpoenas for several witnesses prior to the hearing. Under all the circumstances, we are satisfied that the record sufficiently reflects that the mother waived her statutory right to counsel knowingly, intelligently and voluntarily… . Matter of Joshua UU v Martha VV, 2014 NY Slip Op 04089, 3rd Dept 6-5-14

 

Mother’s Consent to Adoption Not Required

The Third Department determined mother’s consent to adoption was not required due to her failure to seek treatment for drug and alcohol problems and lack of contact with the child:

“Consent to adoption is not required of a parent who ‘evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so'” … . “Once the petitioner makes such a showing by clear and convincing evidence, the burden shifts to the parent to demonstrate sufficient contact or an inability to engage in such contact”… . * * *

The record not only reflects that the mother failed to demonstrate an acceptable reason for the absence of contact or communication for over six months, but also that the impediments contributing to such absence of contact resulted from the mother’s own acts and lack of effort … . Matter of Lori QQ, 2014 NY Slip Op 04105, 3rd Dept 6-5-14

 

Domestic Relations Order Must Conform to Stipulation of Settlement

The Second Department noted that a domestic relations order must conform to any relevant stipulation.  If it does not conform, it must be amended to conform:

“Where a [domestic relations order]; is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the [domestic relations order]; to accurately reflect the provisions of the stipulation pertaining to the pension benefits” … . “A proper [domestic relations order]; obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment”… . Mondshein v Mondshein, 2014 NY Slip Op 03806, 2nd Dept 5-28-14

 

Father’s New York Custody Petition Not Preempted by Dominican Republic Court’s Denial of Father’s Application for Return of the Child

The Second Department determined Family Court should not have dismissed father’s petition for custody, despite a Dominican Republic court-ruling denying father’s application for return of the child. The application for return of the child was made pursuant to the Convention on the Civil Aspects of International Child Abduction (Convention). The father’s petition for custody in New York was deemed proper under the Uniform Child Custody Jurisdiction and Enforcement Act.  The New York custody petition was not preempted by the court ruling in the Dominican Republic:

The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court’s jurisdiction in international child custody matters (see Domestic Relations Law § 75-d). Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this Sate has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (see Domestic Relations Law § 76[a]). “Home state” is defined [*2]as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (see Domestic Relations Law § 75-a[7]). While “state” is defined as a “state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States” (Domestic Relations Law 75-a[15]), pursuant to Domestic Relations Law § 75-d, a “court of this state shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75-d[1]).

The Convention, “done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights” (42 USC § 11601[a];[4]). “The Convention seeks to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States” … . The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply … . Return is not required, for example, if the abducting parent can establish that there is a grave risk that the child’s return would expose him or her “to physical or psychological harm or otherwise place the child in an intolerable situation” … . A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence … .

Here, it is undisputed that the United States was the child’s country of habitual residence, and that, at the time the petition was filed, New York was the child’s “home state.” Thus, the Family Court had jurisdiction to determine the father’s petition for custody (see Domestic Relations Law § 76[a]). Moreover, the denial, by the court in the Dominican Republic, of the father’s application for a return of the child pursuant to the Convention, did not preempt his custody proceeding … . Accordingly, the Family Court erred in dismissing the father’s petition. Matter of Katz v Katz, 2014 NY Slip Op 03841, 2nd Dept 5-28-14

 

Derivative Neglect Finding Reversed—Operative Principles Explained

The Third Department reversed Family Court, finding the evidence insufficient to support an allegation of derivative neglect. The theory below was that the alleged abuse of one child, Dominick, was serious enough to warrant a finding of derivative neglect with respect to a child (Brad) who had not been born at the time of the alleged neglect of Dominick.  In the course of the decision, the court explained the operative principles:

Pursuant to Family Ct Act § 1046 (a) (i), “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 . . . the respondent.” However, “[e]vidence of neglect of one child typically may not serve as the sole basis for a finding of neglect [of another child, unless] the nature of the direct [neglect], notably its duration [and] the circumstances surrounding its commission[,] . . . evidence[s] fundamental flaws in the respondent’s understanding of the duties of parenthood” … . — flaws that are “so profound as to place any child in his or her care at substantial risk of harm” … . Contrary to the father’s assertion, petitioner’s failure to commence a direct neglect proceeding against him with respect to Dominick does not bar petitioner from maintaining this derivative neglect proceeding against him with respect to Brad. Similarly, the fact that Brad had yet to even be conceived — much less born — at the time of the home invasion or the search of the father’s residence is not dispositive, as the relevant inquiry is whether the evidence of the direct neglect of one child, i.e., Dominick, “is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … . Matter of Brad I (Tiana K), 2014 NY Slip Op 03555, 3rd Dept 5-15-14

 

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Civil Contempt Finding Appropriate—Defendant Failed to Comply With Order to Pay Attorney’s Fees

The Second Department explained the criteria for civil contempt.  The order which was not complied with here required defendant to pay attorney’s fees in a divorce proceeding:

To prevail on a motion to punish for civil contempt, the movant must establish (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The movant has the burden of proving contempt by clear and convincing evidence … . Here, where it is undisputed that the defendant did not comply with the clear mandate of the court’s order …, the plaintiff met his burden on the motion … . Moreover, under the circumstances of this case, less drastic enforcement measures than seeking to hold the defendant in contempt would have been ineffectual … . Hayes v Barroga-Hayes, 2014 NY Slip Op 03488, 2nd Dept 5-14-14

 

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Court Should Have Granted an Adjournment in Contemplation of Dismissal In a Juvenile Delinquency Proceeding

The First Department, over a dissent, determined that an adjournment in contemplation of dismissal (ACD) was the least restrictive dispositional alternative in a juvenile delinquency proceeding:

An adjournment in contemplation of dismissal would have been the least restrictive dispositional alternative consistent with appellant’s needs and the community’s need for protection … . This was appellant’s first offense. She admitted the allegations of the petition but asserted, as did her mother, that the incident resulted from her having been bullied by the complainant with no corrective action taken by appellant’s school. While appellant had truancy issues at school, at the time of the disposition she was employed, was being treated for depression, and was generally making progress. Based on all these factors, there is no reason to believe that appellant needed any supervision beyond that which could have been provided under an ACD. It should also be noted that under the terms of an ACD, the court could have required the Probation Department to monitor appellant, and her observance of a curfew and other requirements. Matter of Clarissa V, 2014 NY Slip Op 03431, 5-13-14

 

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Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision

The First Department determined Family Court had properly adjudicated the appellant a juvenile delinquent, despite the relatively minor offense, because the appellant was in need of residential supervision:

The court properly exercised its discretion in adjudicating appellant a juvenile delinquent. Although the underlying offense was not serious, appellant was in need of a residential, nonsecure placement under the Close to Home Initiative program. The court properly declined to adjudicate appellant a person in need of supervision … , particularly since appellant had already demonstrated, following a prior proceeding brought by her mother, that such a disposition would not control appellant’s behavior. Accordingly, a juvenile delinquency adjudication was necessary to ensure appellant’s compliance with residential treatment. “[T]he irony is presented that while the court may direct the PINS youth not to abscond, the statutory authority constraining the court essentially precludes an effective remedy should the youth abscond” … . Matter of Amari D, 2014 NY Slip Op 03452, 1st Dept 5-13-14

 

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Facts Did Not Support Family Court’s Dismissal of a Petition to Terminate Parental Rights of Both Parents—Permanent Neglect Finding Was Warranted by the Facts

The First Department reversed Family Court, based on the appellate division’s own findings of fact, and found that neither parent had made realistic plans for the child’s future, constituting clear and convincing evidence of permanent neglect:

There is no dispute that the agency has met the threshold requirement in a permanent neglect proceeding of showing it discharged its statutory obligation to exert diligent efforts to encourage and strengthen the parental relationships (see Social Services Law § 384-b[7][a]…). However, contrary to the findings by Family Court, there is clear and convincing evidence, the standard of proof required …, that despite the agency’s diligence, neither parent has, “for a period of either at least one year or fifteen out of the most recent twenty-two months following the date [the] child came into the care of an authorized agency,” shown sufficient planning for the child’s future, as described in the Social Services Law, to warrant continuing parental rights (see Social Services Law § 384-b[7][a]…).

Planning for the future of the child under the Social Services Law requires that the parent take “necessary [steps] to provide an adequate, stable home and parental care for the child within a period of time which is reasonable”; at the very least, the parent must take steps to “correct the conditions” that resulted in the initial removal of the child from the home … . Matter of Selvin Adoph F v Thelma Lynn F, 2014 NY Slip Op 03432, 1st Dept 5-13-14

 

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