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EVIDENCE FATHER POSSESSED COCAINE WITH INTENT TO SELL WAS NOT SUFFICIENT TO SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE FATHER USED DRUGS, EXPOSED THE CHILDREN TO DRUG-DEALING, OR STORED THE DRUGS WHERE THE CHILDREN COULD ACCESS THEM (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence that father possessed four ounces of cocaine did not support the neglect finding. There was no evidence the children were exposed to drug-dealing and the drugs were stored above where the children could access them:

Family Court’s finding that the father neglected the children was not supported by a preponderance of the evidence … . … [Father’s] intent to sell these illicit drugs was insufficient, without more, to warrant a finding of neglect. The record … contained no evidence establishing that the father engaged in drug transactions within the house or that he otherwise exposed the children to drug-trafficking activities … . Nor was there evidence adduced at the hearing as to whether the father regularly engaged in the sale of drugs, or the manner in which he intended to sell the cocaine. Moreover, although the officers discovered the cocaine within the father’s bedroom closet, it was located on a five- or six-foot-high shelf and was otherwise stored in a manner that was not readily accessible to the children … . Finally, there was no indication in the record that the father ever used cocaine or any other illicit drugs. Absent evidence that the father’s conduct caused the requisite harm to the children or otherwise placed them in imminent danger of such harm, the court should not have found that he neglected them … . Matter of Jefferson C.-A. (Carlos T.-F.), 2024 NY Slip Op 02701, Second Dept 5-15-24

Practice Point: Storing four ounces of cocaine in a closet where the children could not access it, without more, is not sufficient for a neglect finding against father. Although there was evidence father intended to sell the drugs, there was no evidence father used drugs or exposed the children to drug-dealing.

 

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A STIPULATIION OF SETTLEMENT DOES NOT IMPOSE A DUTY UPON A PERSON NOT A PARTY TO THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a person who was not a party to the stipulation of settlement in a divorce action (Kamaras) cannot be sued for an alleged violation of the stipulation:

The plaintiff opposed Kamaras’s motion for summary judgment, contending, among other things, that Kamaras knew of the stipulation and its terms and that Kamaras had a “duty” to “have [Chantal] execute the transfer documents to the marital property and return same to [Walner’s counsel].” … .

“‘A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation'” … . “It is well-settled law that parties to a contract cannot, under its terms, impose any liability upon a stranger to that contract” … . “One cannot be held liable under a contract to which he or she is not a party” … .

Here, Kamaras demonstrated his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by demonstrating that he was not a party to the stipulation and had not assumed any obligations under the stipulation … . Tema v Tema, 2024 NY Slip Op 02720, Second Dept 5-15-24

Practice Point: Even if a person is aware of the terms of a stipulation of settlement, if that person is not a party to the stipulation, the stipulation does not impose a duty to act on them.

 

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THE CHILD’S FOSTER PARENTS WERE PERSONS LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND WERE ENTITLED TO A HEARING BEFORE THE CHILD WAS REMOVED FROM THEIR CARE (SECOND DEPT).

The Second Department, reversing Family Court, determined the foster parents, as persons legally responsible for the care of the child, were entitled to a hearing before the child was removed from their care:

Family Court Act § 1028(a) provides that “[u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part . . . , the court shall hold a hearing to determine whether the child should be returned,” with two exceptions not relevant here … . Family Court Act § 1028(a) further provides that “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

The phrase “person legally responsible” “includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time” … . “The Court of Appeals, in interpreting Family Court Act § 1012(g), has held that ‘the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents'” … . Further, “a person may act as the functional equivalent of a parent even though that person assumes temporary care or custody of a child,” as long as “the care given the child [is] analogous to parenting and occur[s] in a household or ‘family’ setting” … . “Factors to be considered in determining whether an applicant is a person legally responsible for the care of a child include ‘(1) the frequency and nature of the contact, (2) the nature and extent of the control exercised by the [applicant] over the child’s environment, (3) the duration of the [applicant’s] contact with the child, and (4) the [applicant’s] relationship to the child’s parent(s)'” … .

Here, the evidence in the record was sufficient to support a determination that the foster parents were persons legally responsible for the care of the child. The evidence demonstrated that the child, eight years old at the time of the foster parents’ application, had been under the foster parents’ care for most of his life. . Matter of Samson R. (Christopher R.), 2024 NY Slip Op 02710, Second Dept 5-15-24

Practice Point: Here the foster parents had cared for the eight-year-old for most of his life. They were “persons legally responsible for the care of the child” and therefore were entitled to a hearing before removal of the child.

 

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MOTHER’S INCONSISTENT STATEMENTS AND EVASIVE TESTIMONY DID NOT AMOUNT TO “FRIVOLOUS CONDUCT” WARRANTING THE AWARD OF ATTORNEY’S FEES AS A SANCTION (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded petitioner attorney’s fees as a sanction against mother based on mother’s testimony in the proceedings: Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a):

Pursuant to 22 NYCRR 130-1.1(a), the court is authorized to award a party in a civil action “reasonable attorney’s fees . . . resulting from frivolous conduct.” Conduct is frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule” … .

Here, the petitioner failed to demonstrate that the mother engaged in frivolous conduct within the meaning of the rule. Contrary to the Family Court’s determination, the mother’s inconsistent statements and evasive testimony were not frivolous conduct within the meaning of 22 NYCRR 130-1.1 … . Matter of Edwin C. v Fenny C., 2024 NY Slip Op 02700,, Second Dept 5-15-24

Practice Point: Here in this Family Court proceeding petitioner was awarded attorney’s fees as a sanction pursuant to 22 NYCRR 131-1.1(a) based on mother’s “inconsistent statements” and “evasive testimony.” Mother’s conduct was not “frivolous” within the meaning of 22 NYCRR 131-1.1(a). The petition should not have been granted.

 

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FAMILY COURT SHOULD NOT HAVE SUSPENDED FATHER’S VISITATION WITHOUT MAKING FINDINGS OF FACT, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have suspended father’s visitation without making findings of fact:

The father … contends that the court failed to make any factual findings whatsoever to support the determination to suspend the father’s visitation with the child, and that the matter should be remitted to allow the court to make such findings. We agree. It is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its determination … , either with respect to whether there had been a change in circumstances … or the relevant factors that it considered in making a best interests of the child determination … . “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the amended order and remit the matter to Family Court to make a determination on the petition including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Miller v Boyden, 2024 NY Slip Op 02648, Fourth Dept 5-10-24

Practice Point: Here Family Court should not have suspended father’s visitation without making findings of fact because appellate review is impossible; matter remitted.

 

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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint:

“A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint … . The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with the instant action. There was no motion to dismiss the complaint in its entirety or to change venue before the court … . Ivashchenko v Borukhov, 2024 NY Slip Op 02526, Second Dept 5-8-24

Practice Point: This decision illustrates the appellate-courts’ discomfort with sua sponte dismissals of complaints (dismissal in the absence of a motion requesting it).

 

MOTHER’S LEAVING THE CHILD WITH THE PETITIONERS, THE CHILD’S BROTHER AND SISTER-IN-LAW, FOR A LITTLE MORE THAN A MONTH DID NOT MEET THE “EXTRAORDINARY CIRCUMSTANCES” STANDARD FOR THE AWARD OF JOINT CUSTODY TO MOTHER AND PETITIONERS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the award of joint custody of the child shared by mother and the child’s brother and sister-in-law (petitioners). The extraordinary circumstances required to award custody to nonparents were not demonstrated. Mother had left the child with the petitioners for a little more than a month before seeking the child’s return:

… [T]he court’s determination to award petitioners joint custody of the child along with herself and the father lacks a sound and substantial basis in the record inasmuch as petitioners failed to establish the existence of extraordinary circumstances. ” ‘[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . “A finding of extraordinary circumstances is rare, and the circumstances must be such that they ‘drastically affect the welfare of the child’ ” … . Such circumstances are not established by a mere showing that the nonparent “could do a better job of raising the child” … . Where a nonparent fails to establish extraordinary circumstances, “the inquiry ends” … .

… We conclude that petitioners failed to meet their burden of establishing that the mother “relinquished her superior right to custody” … . … [T]he mother’s decision to leave the child with petitioners for a little over a month before seeking his return did not amount to the type of prolonged separation that would evidence the mother’s abandonment of the child or her intent to do so … . Matter of Adams v John, 2024 NY Slip Op 02404, Fourth Dept 5-3-24

Practice Point: Here the child’s brother and sister-in-law were awarded joint custody of the child with mother after mother left the child with the petitioners for a little more than a month. The “extraordinary circumstances” standard for the award of custody to nonparents was not met.

 

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TERMINATION OF FATHER’S PARENTAL RIGHTS AFFIRMED; TWO DISSENTERS ARGUED THERE WAS NO ADMISSIBLE PROOF FATHER FAILED TO PLAN FOR THE CHILDREN’S FUTURE FOR ONE FULL YEAR (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, affirmed the termination of father’s parental rights. The dissenters argued there was no admissible proof that father failed to plan for the children’s future for one full year:

From the dissent:

We agree with the majority that petitioner met its burden of establishing that respondent father failed to plan for the children’s future from April 2021—when the father began hearing voices but failed to disclose it—through December 2021. However, inasmuch as petitioner failed to meet its burden of establishing by clear and convincing evidence that the father failed to plan for the children’s future for one full year …, we respectfully dissent.

To that end, the only evidence of a failure to plan for the children’s future from December 2020 to April 2021 was petitioner’s exhibit 5, a medical record that referenced the father’s admission to continued use of synthetic marihuana. However, that exhibit was withdrawn by petitioner as not properly authenticated and was thereafter never entered into evidence or placed into the record. Inasmuch as the record lacks other admissible evidence that the father failed to plan for the children’s future from December 2020 to April 2021, Family Court’s improper reliance upon facts outside the record is not harmless … , and petitioner failed to meet its burden by clear and convincing evidence … . Therefore, we would reverse the order and dismiss the petition against the father. Matter of Tori-Lynn L. (Troy L.), 2024 NY Slip Op 02440, Fourth Dept 5-3-24

Practice Point: One element of the proof necessary to terminate parental rights is the parent’s failure to plan for the children’s future for one full year.

 

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PETITIONER DEMONSTRATED THE CHILD WAS NEVER HARMED AND SHE HAD MADE SERIOUS AND SUCCESSFUL EFFORTS AT REHABILITATION; RE: PETITIONER’S EMPLOYMENT IN THE CHILDCARE FIELD, RESPONDENT NYS OFFICE OF CHILDEN AND FAMILY SERVICES IS PRECLUDED FROM INFORMING ANY PROVIDER OR LICENSING AGENCY THAT PETITIONER IS THE SUBJECT OF A CHILD MALTREATMENT REPORT (FOURTH DEPT).

The Fourth Department, in an Article 78 proceeding transferred by Supreme Court, determined the respondent NYS Office of Children and Family Services should not have ruled that “petitioner’s acts of child maltreatment are relevant and reasonably related to employment in the childcare field.” The Fourth Department therefore directed that respondent “shall be precluded from informing a provider or licensing agency which makes an inquiry that petitioner is the subject of an indicated child maltreatment report.” No child had ever been harmed by petitioner and petitioner demonstrated serious and successful rehabilitative efforts.

… [T]he record establishes that petitioner had taken actions to show that she “[is] able to deal positively with [the] situation or problem that gave rise to the previous incident(s) of child . . . maltreatment” … . As petitioner contends, the ALJ [Administrative Law Judge] failed to consider the evidence of psychological rehabilitation showing that she could deal positively with the trauma she suffered as a result of the domestic violence inflicted upon her by the father, which precipitated the indicated report. Petitioner’s marriage and family therapist submitted a letter explaining that petitioner had suffered from post-traumatic stress disorder “as a result of the relationship” with the father, but that petitioner “ha[d] made an enormous amount of progress and ha[d] reached her treatment goals,” and “in no way presented as an unfit parent” during the course of her treatment. The psychologist who performed a comprehensive evaluation and testing of petitioner opined that, despite having been “aggressively abused” by the father, there was no indication that petitioner harbored “resentments toward others,” petitioner showed “no defensiveness or tendency to distort the facts of the situation,” and petitioner scored “unusually low” on the potential for abuse scale, which demonstrated that petitioner had “none of the characteristics, personal status or problems with the child or family members that would raise the question of abusive potential on her part.” Petitioner also had a “significantly elevated score on the scale indicating . . . the tendency to maintain emotional stability and to adequately deal with interpersonal exchanges.” Moreover, the ALJ ignored petitioner’s testimony about her improved ability to deal positively with emotionally challenging situations and the letters from other individuals attesting to petitioner’s ability to properly parent the child. The record therefore indisputably establishes that petitioner is able to deal positively with the situation or problem that gave rise to the indicated report. Matter of Hastings v New York State Off. of Children & Family Servs., 2024 NY Slip Op 02436, Fourth Dept 5-3-24

Practice Point: A person who has been found to have committed acts of child maltreatment can petition the NYS Office of Children and Family Services for a ruling precluding the agency from informing any childcare provider of licensing agency of the maltreatment, thereby clearing the way for that person’s employment in the childcare field.

 

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