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Neglect Finding Can Be Based Upon a Single Incident of Excessive Corporal Punishment

The Second Department noted that a finding of neglect can be based upon a single incident of excessive corporal punishment:

Neglect may be established by even a single incident of excessive corporal punishment … . The Family Court’s assessment of the credibility of witnesses is entitled to considerable deference … .Here, contrary to the appellant’s contention, the Family Court’s finding of neglect of the child Shervon M., based on excessive corporal punishment, was supported by a preponderance of the evidence (see Family Ct Act § 1012[f][i][B]…). The Family Court’s finding that the appellant engaged in excessive corporal punishment when he struck the child Shervon M. several times with a belt, causing raised red marks on her arm and legs, is supported by the evidence presented at the fact-finding hearing. Shervon’s out-of-court statements that the appellant struck her with a belt were sufficiently corroborated by the caseworker’s observations of Shervon’s injuries and the appellant’s admission to the caseworker that he had struck Shervon with a belt in the past (see Family Ct Act § 1046[a][vi]…).  Matter of Nurridin B, 2-14 NY Slip Op 02431, 2nd Dept 4-9-14

 

Mother’s Interference With Relationship Between Father and Child Warranted Modification of Custody Arrangement Entered Into by Stipulation

The Second Department determined father had made a sufficient showing of a change in circumstances to justify a modification of custody arrangements created by stipulation:

Here, the father established that there had been a sufficient change in circumstances since the time of the stipulation. Specifically, he demonstrated that the mother had interfered with his relationship with the child, such that a modification in the custody arrangement was in the best interests of the child. The mother’s unfounded allegations of sexual abuse of a child that she made against the father were an act of interference with the parent-child relationship so inconsistent with the best interests of the child as to raise a strong probability that the mother is unfit to act as custodial parent … . The mother’s conduct here in making these unfounded allegations demonstrated a purposeful placement of her self-interest above the interests of others … . The record shows that the father is more likely than the mother to foster a relationship between the child and the noncustodial parent … . The mother’s unfounded allegations of sexual abuse of a child, along with her other acts of interference in the relationship between the father and child since the stipulation, established a sound and substantial basis for the Family Court’s determination that there had been a sufficient change in circumstances warranting a modification of the custody arrangement in the child’s best interests. Matter of Fargasch v Alves, 2014 NY Slip Op 02435, 2nd Dept 4-9-14

 

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Children’s Out-Of-Court Statements May Corroborate One Another

The Second Department noted that out-of-court statements by children can corroborate one another in a sexual abuse case:

The Family Court’s determination that the maternal stepgrandfather sexually abused the subject children was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[e], [g]; 1046[b][i]…).  “It is well established that the out-of-court statements of siblings may properly be used to cross-corroborate one another” … . Here, the evidence presented at the fact-finding hearing established that, in May 2011, then-10-year-old Naziya D. and 3-year-old Jada A. made independent and consistent out-of-court statements to several individuals describing similar incidents of sexual abuse by the maternal stepgrandfather. Further, the children’s statements were corroborated by the petitioner’s progress notes and the mother’s testimony as to the children’s statements … .Additionally, where, as here, the Family Court is primarily confronted with issues of credibility, its findings must be accorded deference on appeal, as they were supported by the record … .The Family Court, upon a finding of abuse pursuant to Family Court Act § 1012(e), must make a further finding of the specific sex offenses that were committed, as defined in Penal Law article 130 … .  Even if the Family Court fails to make such a finding, this Court can make the finding that the Family Court should have made… . Matter of Jada A, 2014 Slip Op 02430, 2nd Dept 4-9-14

 

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Gabriela A’s Actions Constituted Disobedience Under PINS Criteria, Not Criminal Actions (Resisting Arrest/Obstruction of Governmental Administration) Under Juvenile Delinquency Criteria

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined, under the facts,  a “Person In Need of Supervision (PINS)” should not have been adjudicated a juvenile delinquent.  Gabriela A., a PINS who had left the non-secure facility where she was placed, apparently resisted to some extent when police officers came to return her to the facility. After the fact-finding hearing, Gabriela A was placed in a secure facility pending disposition. Family Court ultimately determined Gabriela A was a juvenile delinquent finding Gabriele A had committed acts, which, if committed by an adult, would constitute the criminal offenses of obstruction of governmental administration and resisting arrest. The Court of Appeals did not rule out the procedure used by Family Court, which essentially converted a PINS proceeding to a Juvenile delinquency proceeding. Rather, the court determined, under the facts, Gabriela A’s behavior was properly characterized as PINS behavior, not criminal behavior:

The crime of resisting arrest requires that a person intentionally prevent “an authorized arrest” (Penal Law § 205.30). The restraint of a PINS pursuant to Family Court Act § 718, however, is not the same as a criminal arrest … . A PINS proceeding is fundamentally civil in nature. … Thus, a PINS who resists being restrained or transported back to a placement facility is not resisting arrest within the meaning of Penal Law § 205.30.

Next, a person is guilty of the misdemeanor of obstructing governmental administration when he or she “intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference” (Penal Law § 195.05). Probation officers qualify as “public servants” within the broad definition supplied in the Penal Law (see Penal Law § 10.00 [15]), and Gabriela A. admitted that she wanted to “make it hard” for Officer Flores and the other probation officers to handcuff and take her to the non-secure facility. On the other hand, the legislature has defined a PINS to include someone who is “habitually disobedient and beyond the lawful control of . . . lawful authority” (Family Court Act § 712 [a]). Thus, a PINS’s disobedience and obstruction of “lawful authority” is not necessarily the same as an adult’s. Since Family Court Act §§ 720 (1) and (2) forbid placement of a PINS in a secure facility, the legislature surely did not intend the type of behavior that might cause a child to be designated a PINS in the first place to become the basis for secure detention … .  Matter of Gabriela A, 2014 NY Slip Op 02376, CtApp, 4-8-14

 

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Application for “Special Immigrant Juvenile” Status Need Only Assert Reunification with One Parent Is Not Possible

The Second Department reiterated  that an application for “special immigrant juvenile” status need only be supported by the allegation that reunification with one parent is not possible:

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 juvenile” is a resident alien 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 [*2]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 a juvenile to qualify for SIJS status, it must also be 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]). As previously determined by this Court, the “1 or both” language requires only a finding that reunification is not viable with one parent … .  Matter of Gabriel HM…, 2014 NY Slip Op 02587, 2nd Dept 4-16-14

 

Inadequate Supervision and Unsanitary Living Conditions Warranted a Neglect Finding

The Fourth Department reversed Family Court and found the three and a half year old child to be neglected.  The child wandered off out of the house and was found by a neighbor one and a half blocks away .  And the child had been living in highly unsanitary conditions:

…[A] neglected child is defined as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof” (Family Ct Act § 1012 [f] [i] [B]). As the Court of Appeals has explained, “[t]he statute . . . imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” … . Moreover, it is well established that “the statutory requirement of imminent danger . . . does not require proof of actual injury” …, and that “[a] single incident where the parent’s judgment was strongly impaired and the child exposed to a risk of substantial harm can sustain a finding of neglect” … . * * *

As relevant to the second basis for neglect alleged in the petition, a neglected child is defined as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, [or] shelter . . . though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). We conclude that the court’s determination that the child was not neglected based on the condition of the mother’s apartment lacks a sound and substantial basis in the record. * * * Under the … circumstances, we conclude that the unsanitary and unsafe condition of the mother’s apartment posed an imminent danger of impairment to the child’s physical, mental, or emotional condition … . Matter of Raven B, 77, 4th Dept 3-28-14

 

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Child’s Out-of-Court Statements Corroborated by Child Abuse Expert/Hearsay Provided Adequate Basis for Finding of Abuse

The Second Department determined Family Court properly ruled that a child’s out-of-court statements were corroborated by a child abuse expert:

A child’s prior out-of-court statements may provide the basis for a finding of abuse, “provided that these hearsay statements are corroborated, so as to ensure their reliability” … . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). Validation testimony from an expert that the child’s psychological and behavioral characteristics lead the expert to conclude that the child was sexually abused may supply the corroboration of the child’s out-of-court statements necessary to make out a prima facie case of sexual abuse … . However, as with any expert opinion, the validation testimony must meet a threshold of reliability … . “The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated” … . The Family Court’s credibility findings must be accorded considerable deference on appeal … .Contrary to the father’s contention, the record supports the Family Court’s determination that the testimony of the petitioner’s child sexual abuse expert sufficiently corroborated Alexis S.’s out-of-court disclosures so as to establish a prima facie case of sexual abuse against the father… . Matter of Alexis S 2014 NY Slip Op 01759, 2nd Dept 3-19-14

 

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Mother Entitled to Hearing/Children May Be Eligible for Special Immigrant Status

The Second Department reversed Family Court and sent the mother’s custody petition back for a hearing.  The mother alleged father had abandoned the children and the children, due to their immigration status, could be returned to El Salvador where they could be victimized by family and gangs. Mother argued the children could apply for special immigrant status if she were awarded custody:

The Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70[a]; Family Ct Act § 511…). According to the petitioner, the children’s father has abandoned the children and, due to their immigration status, they could be returned to El Salvador where they have been subjected to abuse by family members and threats by gang members. The petitioner has alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status… . Matter of Sanchez v Bonilla, 2014 NY Slip Op 01761, 2nd Dept 3-19-14 

 

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Supreme Court Should Not Have Reformed Settlement Agreement/Criteria for “Mutual Mistake” Not Met

The Second Department determined Supreme Cout should not have found that mutual mistake required reformation of a settlement agreement.  The court explained the operative criteria:

“Marital settlement agreements are judicially favored and are not to be easily set aside” … . Although a mutual mistake by the parties may form the basis for reformation of a marital settlement agreement, “the mistake must be so material that . . . it goes to the foundation of the agreement'” … . “[T]o overcome the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties, evidence of a very high order is required” … . The party seeking reformation must show clearly and beyond doubt that there has been a mutual mistake, and must show “with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties'” … . Hackett v Hackett, 2014 NY Slip Op 01715, 2nd Dept 3-19-14

 

Father Estopped from Moving to Vacate Order of Filiation Entered Upon Consent Despite “Somewhat Limited” Parent-Child Relationship

The Second Department determined father was estopped from challenging an order of filiation even though there was evidence the parent-child relationship was “somewhat limited:”

Here, the order of filiation was entered approximately 10 years prior to the instant petition, and the father had been paying child support during that time. In addition, the father sought, and was granted, visitation with the subject child, which he exercised, although sporadically. The father attended some of the child’s school functions and parent-teacher conferences, had telephone contact with the child, and saw the child on some of her birthdays. The child, who was 15 years old at the time the father’s petition was filed, was acquainted with some of the father’s family members, considered the father to be her father, and had never known any other father. Under these circumstances, the Family Court properly invoked the doctrine of equitable estoppel to preclude the father’s challenge to the order of filiation …, and “the evidence indicating that the parent-child relationship was somewhat limited did not preclude the application of [that] doctrine” … . Matter of Shawn H v Kimberly F, 2014 NY Slip Op 01610, 2nd Dept 3-12-14

 

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