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Neglect Finding Cannot Be Based Upon Theoretical Future Harm

The Fourth Department determined that a finding of neglect “cannot be based upon the child’s possible reaction to future harm:”

…DSS failed to meet its burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of respondent’s failure to exercise a minimum degree of care … .  The court’s finding of neglect hinges of the testimony of DSS’s expert psychologist that respondent’s dismissive response to the child’s allegations that she had been sexually abused by her eight-year-old cousin put the child at risk of harm because such response would cause the child to be reluctant to report future allegations of abusive contact.  The evidence did not establish that the child was in fact sexually abused, and we therefore conclude that the court erred in finding that respondent is chargeable with neglect for failing to protect the child from actual harm … .  Moreover, the finding of neglect cannot be based upon the child’s possible reaction to future harm.  “[A] finding of neglect will not be based on a failure to prevent theoretical future harm which never occurred” … .  Matter of Lebraun H … 1203, 4th Dept 11-15-13

 

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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

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Cause of Action for Breach of “Sharing Assets” Agreement Entered Into During an 18-Year “Committed Same-Sex Relationship” Reinstated

In a full-fledged opinion by Justice Austin, over a dissent, the Second Department determined plaintiff had stated a cause of action for breach of contract based upon an agreement made during an 18-year “committed, same-sex relationship.” The complaint alleged that the partners had entered an oral “joint venture/partnership” agreement involving sharing assets, including retirement contributions and earnings, in exchange for plaintiff’s leaving her full-time job to care for the partners’ children. Supreme Court had dismissed the complaint. The Second Department reinstated the breach of contract cause of action but affirmed the dismissal of the constructive trust, unjust enrichment and accounting causes of action.  With respect to breach of contract, the court wrote:

[The] factual allegations adequately set forth the existence of a contract pursuant to which the plaintiff would quit working full-time, thereby ceasing to earn money toward her own retirement plan, and pursue part-time work enabling her to stay home to care for the parties’ children, in exchange for a one-half share in the defendant’s retirement accounts accrued during those years that the plaintiff refrained from working at a job which provided retirement benefits.

The alleged contractual agreement between the parties was supported by consideration. “Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]” … . The consideration here for the alleged contract is the forbearance of the plaintiff’s  career, the inability to continue to save toward her retirement during that forbearance, and her maintenance of the household in return for a share in the defendant’s retirement benefits and other assets earned during the period of forbearance … . Since the plaintiff also alleged that the defendant breached the alleged agreement and that she has sustained damages as a result of that breach, at this pleading stage, the eighth cause of action must survive dismissal … .

The fact that the alleged agreement was made by an unmarried couple living together does not render it unenforceable. “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together, provided only that illicit sexual relations were not part of the consideration of the contract'” … . “[W]hile cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law” … . Dee v Rakower, 2013 NY Slip Op 07443, 2nd Dept 11-13-13

 

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Prior Stipulation Based Upon Inaccurate Information Properly Vacated

In a divorce proceeding, the Fourth Department upheld Supreme Court’s vacating the child support and maintenance provisions of a prior stipulation, finding that the wife had not disclosed all of her assets and earnings at the time the stipulation was entered.  The Fourth Department also upheld $50,000 of imputed annual income assigned to the wife by Supreme Court:

… [T]he court did not err in vacating the child support and maintenance provisions of the parties’ October 2009 stipulation.  In that stipulation, the parties had agreed to impute income to the wife in the amount of $15,000, and the husband had agreed to maintenance and child support awards to the wife based on that imputed income.  Although “[s]tipulations of settlement are favored by the courts and not lightly cast aside” (…see generally CPLR 2104), “[a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse’s overreaching” … .  We agree with the court that “a reasonable inference exists that the [wife did not] fully disclose[] h[er] financial assets . . . , and, as a result, the terms of the agreement were so inequitable as to be manifestly unfair to the [husband]” … . …[T]he wife had over $100,000 more in income than was imputed to her in the stipulation, and her income was more than two times what the husband had earned in any of the years before the stipulation.  We thus conclude that, regardless whether the wife can be said to have committed fraud, the wife’s failure to disclose her earnings in the stock market resulted in an agreement that was manifestly unfair to the husband.  Marlinski v Marlinski, 979, 4th Dept 11-8-13

 

Visitation Details Should Not Have Been Left to Supervising Agency

The Fourth Department determined Family Court erred by delegating its authority with respect to the visitation schedule and sibling visits to the agency supervising the mother’s visitation:

…[T]he court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” … .  By ordering only that visitation “shall take place through the Catholic Charities Therapeutic Supervised Visitation program,” the court improperly delegated its authority to the supervising agency … .  We note in addition that the court erred in merely indicating that “access should include the child’s siblings, if that can be accommodated by the program.”  If the court determined that sibling visitation is indeed in the best interests of the child, the court should specify in its order that the agency or organization designated to supervise visitation must be able to accommodate sibling visits.  We therefore modify the order accordingly, and we remit the matter to Family Court to determine the access schedule and whether sibling visitation shall occur. Matter of Green v Bontzolakes, 1034, 4th Dept 11-8-13

 

Burden of Proof for Relocation with Child Not Met

In reversing Family Court, the Second Department determined there was not a sound and substantial basis for granting the mother’s request to return to South Africa with the couple’s child.  The court explained the analytical criteria for relocation:

A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests … . In determining whether relocation is appropriate, the court must consider a number of factors, which include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial 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”… . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . However, “the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” … . “In the end, 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” … .

… [T]he record is devoid of evidence that he has ever harmed the child or directed his anger toward her, and many of the incidents described by the mother involved the father’s suicidal ideation and infliction of harm upon himself. Significantly, the court-appointed psychologist found that the father was currently emotionally and mentally stable, and at low risk of neglectful or abusive behavior toward the child. Moreover, the record shows that the mother sought permission to relocate primarily because she feels lonely and isolated in the United States, and not to escape domestic violence … . The record also establishes that the father consistently exercises his right to visit the child twice a week, and that he desires to spend more time with her …. Further, there is no economic necessity for the proposed relocation because the mother has been steadily employed as a payroll analyst for more than six years.  Matter of Francis-Miller v Miller, 2013 NY Slip Op 07177, 2nd Dept 11-6-13

 

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Child Qualified as “Special Immigrant;” Abandoned by One Parent

In reversing Family Court, the Second Department determined the subject child, Brenda, qualified as a “special immigrant” who could apply for lawful permanent residency in the US because she had been abandoned by one (not both) of her parents:

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 a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (see 8 USC § 1101[a][27][J][i]…), and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]…).

Brenda is under the age of 21 and unmarried. Inasmuch as the Family Court placed Brenda under her mother’s custody, Brenda has been “legally committed to, or placed under the custody of . . . an individual or entity appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i)…). Based upon our independent factual review, we find that the record, which includes a detailed affidavit from Brenda, fully supports Brenda’s contention that, because her father neglected and abandoned her, reunification with her father is not a viable option … . Contrary to the Family Court’s determination, the fact that Brenda’s mother did not also neglect and abandon her does not preclude the issuance of the order requested … . Lastly, the record reflects that it would not be in Brenda’s best interests to be returned to El Salvador… .  Matter of Maria PEA v Sergio AGG, 2013 NY Slip Op 07168, 2nd Dept 11-6-13

For a similar case with the same result, see Matter of Karen C, 2013 NY Slip Op 07170, 2nd Dept 11-6-13

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Neglect Allegations Not Proven by Hearsay Testimony Based On Statements Made by Mother

The Third Department affirmed the dismissal of a neglect petition after a hearing where the only evidence was the hearsay testimony of the caseworker based on what the caseworker was told by the mother:

“To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child’s physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care”… . At a fact-finding hearing, only “competent, material and relevant evidence” may be admitted (Family Ct Act § 1046 [b] [iii]…).Here, the only proof offered by petitioner was the testimony of its caseworker, who had no personal knowledge of the events that led to the filing of the petition.  Rather, the caseworker’s testimony concerning the alleged acts constituting neglect consisted entirely of what he was purportedly told by the mother.  Upon our review of the record and notwithstanding the absence of any contrary testimony, we discern no error in Family Court’s determination that the testimony of the caseworker was insufficient to sustain petitioner’s burden of proof… .  Matter of Lydia DD…, 515237, 3rd Dept 10-31-13

 

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Abuse Was Not Demonstrated; Non-Testifying Child’s Out-Court-Statements Not Corroborated by Witnesses Who Testified About What the Child Told Them

The Third Department affirmed Family Court’s determination that the petitioner had not met its burden of proof that respondent had abused a child (Kaelynn).  The child did not testify and petitioner relied entirely on the testimony of four people to whom the child had disclosed abuse, and the observations of the child’s demeanor during the disclosures. No medical proof was submitted.  In finding the out-of-court allegations made by the child had not been corroborated, the court explained:

…[T]he record contains insufficient evidence to corroborate Kaelynn’s allegations.  Significantly here, a child’s uncorroborated unsworn allegations of abuse alone are insufficient to sustain a finding of abuse (see Family Ct Act § 1046 [a] [vi]) and, although “a child’s out-of-court statement ‘may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings'” …, there is “a threshold of reliability that the evidence must meet” … .  “Whether this corroboration requirement has been satisfied is a ‘fine judgment’ entrusted in the first instance to Family Court, which has the advantage of having heard and seen the various witnesses” … .

Under established law, Kaelynn’s repetition of the allegations of abuse to the testifying witnesses, however consistent and believable, is not sufficient to corroborate these prior out-of-court statements … .  Petitioner presented no expert testimony to “objectively validate [Kaelynn’s] account” or to “relate[] any of her past or present conduct or characteristics to the alleged sexual abuse” … .  While a police investigator who interviewed Kaelynn testified that he conducted a “truth versus lie” inquiry of her and concluded that she understood the consequences of lying, he did not explain his methodology for reaching this conclusion nor did he relate whether her account fit any profile for truthful testimony from abused children … .  Moreover, there was no physical evidence of sexual abuse …, and Kaelynn – in light of her young age — did not give sworn testimony nor was she questioned in camera … . Matter of Dezarea T …, 514693, 3rd Dept 10-31-13

 

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Abuse Not Demonstrated; Conflicting Expert Testimony

In upholding Family Court’s determination that petitioner had not demonstrated the child (Sincerity) was abused when the child was in the custody of the mother, in the face of expert testimony the child suffered forceful blunt trauma within 24 hours of death, the Second Department explained:

The Family Court Act defines an “[a]bused child,” inter alia, as “a child less than eighteen years of age whose parent or other person legally responsible for his [or her] care (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death [or] (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death” (Family Ct Act § 1012[e][i], [ii]). The petitioner may establish a prima facie case of abuse through a method of proof “closely analogous to the negligence rule of res ipsa loquitur” (…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 … .

The Family Court’s assessment of witnesses’ credibility is accorded deference and will not be disturbed unless clearly unsupported by the record … . Where there is conflicting testimony and the matter primarily turns on an assessment of witnesses’ credibility, we accord great weight to the Family Court’s factual findings … . * * *

The mother’s expert witness, the forensic pathologist who conducted the autopsy on Sincerity’s body, testified that based upon a microscopic examination of the brain injury, Sincerity sustained the brain injury a few days to one week prior to her death. Notably, the petitioner did not present evidence establishing that Sincerity was exclusively in the mother’s care for a period of time greater than 24 hours before her death. Moreover, the forensic pathologist testified that she could not determine whether Sincerity died from blunt force trauma to the head or by accidental asphyxiation caused by being placed to sleep on her side and wrapped in a blanket on the mother’s futon. Matter of David T…, 2013 NY Slip Op 07049, 2nd Dept 10-30-13

 

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