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Disposition of Juvenile Delinquency Proceeding Reversed; Purpose Is Not to Punish

Over a dissent, the First Department reversed Family Court’s juvenile delinquency disposition which was based on the findings that, had the juvenile been an adult, he would have been guilty of two counts of sexual abuse 2nd and two counts of forcible touching 3rd.  The First Department eliminated the 12-month period of probation and granted an adjournment in contemplation of dismissal.  The juvenile was 13 years old at the time of the incident.  It was alleged the juvenile grabbed the 12-year-old complainant from behind by pulling on her backpack and, as she tried to get away, touched and squeezed her breasts and the right side of her buttocks.  He then tried to kiss her, ignored her when she said she needed to go to class, and demanded a hug in order to let her go.  The First Department noted that this was the juvenile’s first contact with the justice system, that he and his mother had been cooperative throughout, and that he was a good student (among other factors).  The court wrote:

…[T]the totality of appellant’s course of conduct, and his statements to the complaining witness, support the inference that he acted for the purpose of sexual gratification … . The court’s findings that appellant committed an act, that, if committed by an adult, would constitute a crime, was, therefore, based on legally sufficient evidence and not against the weight of the evidence … .

A juvenile delinquency adjudication, however, requires both a determination that the juvenile committed an act, that, if committed by an adult, would constitute a crime and a showing, by the preponderance of the evidence, that the juvenile needs supervision, treatment or confinement (Family Ct Act §§ 345.1, 350.3, 352.1). Although the seriousness of the juvenile’s acts is an extremely important factor in determining an appropriate disposition …, it is not the only factor. The disposition is not supposed to punish a child as an adult, but provide effective intervention to “positively impact the lives of troubled young people while protecting the public” .. .

While the trial court properly found that appellant committed a delinquent act, there was insufficient support for its decision that appellant needed supervision, treatment or confinement (Family Ct Act §§ 352.1, 350.3). In addition, 12 months probation was not the least restrictive available alternative that would have adequately served the needs of appellant and society (Family Ct Act § 352.2…). Matter of Narvanda S, 2013 NY Slip Op 05855, 1st Dept 9-17-13

 

Child Should Not Have Been Removed from Foster Parents in Favor of Maternal Uncle

In reversing Family Court’s determination the child should move to the home of her maternal uncle rather than remain with her foster parents for adoption, the Second Department wrote:

Once parental rights have been terminated, there is no presumption favoring the child’s biological family … . Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart … . Here, as the children never shared a household, the Family Court erred in concluding that this consideration outweighed the benefit to Orianne of remaining in her foster home, where she has resided since infancy … . The record clearly reflects that Orianne has bonded with her foster family, and is healthy, happy, and well provided for … . Accordingly, the Family Court erred in determining that it was in Oriane’s best interests to move to the home of her maternal uncle rather than remain with her foster parents for the purpose of adoption, which, the record indicates, is the foster parents’ intent… . Matter of Ender MZ-P…, 2013 NY Slip Op 05829, 2nd Dept 9-11-13

 

Grant of Custody to Maternal Grandparents Rather than Parent Reversed

In reversing Family Court’s grant of custody to maternal grandparents, the Second Department wrote:

“In a custody proceeding between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances” … . “For a third-party nonparent to gain custody of a child, he or she must first prove that extraordinary circumstances exist such that a parent has relinquished his or her superior right to custody” … . “Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody” … .  * * *

We agree with the Family Court that the petitioners, the maternal grandparents of the subject children, satisfied their burden of demonstrating the existence of “extraordinary circumstances,” necessitating a determination as to the best interests of the children … . However, considering the totality of the circumstances in this case .., we find that the Family Court’s determination awarding … custody … to the maternal grandparents is not supported by a sound and substantial basis in the record. The mother’s testimony indicated that, at the time of the hearing, she had abstained from drug use for more than 2½ years. The mother’s testimony also indicated that there were no recent incidents of domestic violence between her and Tardo [the father of one of the children]. Indeed, the Family Court noted in its order that the mother and Tardo are now “clean and sober,” three years having passed between their last instances of drug use and the date of the order, and that “there have been no reports of aggression.” The Family Court placed undue emphasis on the forensic evaluation, which was completed almost two years prior to the court’s determination. Additionally, while the Family Court did acknowledge the nature of James’s wishes, we conclude that the court failed to adequately consider those preferences … . We further note that the attorney for the children supports the mother’s position on appeal, at least insofar as advocating for the mother to have joint custody of both children. Matter of Noonan v Noonan, 2013 NY Slip Op 05824, 2nd Dept 9-11-13

 

 

Maintenance Should Not Have Been Granted in Absence of Proof of Standard of Living and Need for Maintenance

The Second Department determined Supreme Court abused its discretion by awarding maintenance in the absence of evidence of the parties’ standard of living and the plaintiff’s need for maintenance:

…[T]he Supreme Court’s award of maintenance to the plaintiff was an improvident exercise of its discretion since the award was made in the absence of any evidence of the parties’ standard of living during the marriage, and in the absence of evidence that the plaintiff, who is otherwise self-supporting, needs maintenance to sustain his pre-divorce standard of living. Additionally, the defendant’s reasonable needs preclude an award of maintenance to the plaintiff. Under these circumstances, the plaintiff should not have been awarded maintenance… .  Lucere v Lucere, 2013 NY Slip Op 05801, 2nd Dept 9-11-13

 

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Temporary Maintenance Award Not Waived by Prenuptial Agreement Waiving Only the Final Award of Alimony or Maintenance

The First Department held that Supreme Court properly awarded temporary maintenance to the wife (defendant) even though the wife waived alimony and maintenance in the prenuptial agreement:

We reject plaintiff’s argument that defendant waived temporary maintenance in the parties’ prenuptial agreement. Notwithstanding that defendant waived any claim to a final award of alimony or maintenance in the prenuptial agreement, the court was entitled, in its discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance… . Lennox v Weberman, 2013 NY Slip Op 05766, 1st Dept 9-3-13

 

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Criteria for Imposing Order of Protection for Longer than Two Years Based on Family Offense Involving Aggravating Circumstance (Use of Weapon Here) Explained

The Second Department, in a family offense proceeding involving the use of a weapon, explained the criteria for issuing an order of protection for a period longer than two years:

To issue an order of protection with a duration exceeding two years on the ground of aggravating circumstances, the Family Court must set forth “on the record and upon the order of protection” a finding of such aggravating circumstances as defined in Family Court Act § 827(a)(vii) (Family Ct Act § 842). The statutory definition of “aggravating circumstances” includes five distinct situations, set forth in the disjunctive: (1) “physical injury or serious physical injury to the petitioner caused by the respondent,” (2) “the use of a dangerous instrument against the petitioner by the respondent,” (3) “a history of repeated violations of prior orders of protection by the respondent,” (4) “prior convictions for crimes against the petitioner by the respondent,” “or” (5) “the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]…),

A finding of aggravating circumstances under the fifth situation set forth in Family Ct Act § 827(a)(vii) must be supported by a finding of “an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]; …). To the extent that certain language in Matter of Clarke-Golding v Golding (101 AD3d at 1118) might suggest that the “immediate and ongoing danger” requirement pertains to the other four situations enumerated in Family Court Act § 827(a)(vii) as well, it is not to be construed as such. Where the aggravating circumstances involve the use of a dangerous instrument (cf. Penal Law § 10.00[13]…), the “immediate and ongoing danger” requirement does not apply (Family Ct Act § 827[a][vii]… .  Matter of Kondor v Kondor, 2013 NY slip Op 05747, 2nd Dept 8-28-13

 

 

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Wife’s Concealment of Terminal Cancer Did Not Warrant Rescission of Divorce Settlement Agreement

The Second Department determined the wife’s concealment of the condition of her health (terminal cancer) during the negotiation of a divorce did not constitute actionable fraud.  The husband sought to rescind the agreement after learning of his wife’s illness (after her death), alleging he would not have entered the agreement had he been aware of it:

While a party’s health is material to the equitable distribution of marital assets (Domestic Relations Law § 236[B][5][d][2]…), the plaintiff does not challenge the manner in which the parties agreed to distribute the marital assets … . Rather, the plaintiff only claims that he would not have agreed to settle with the wife at all had he known of her condition. Contrary to the plaintiff’s contention, the wife’s alleged misrepresentations or omissions concerning her health were not material to the plaintiff’s decision as to whether to enter into any settlement agreement at all with the wife and, thus, would not warrant the equitable remedy of rescission … . To hold otherwise would be to recognize, contrary to public policy favoring settlement and fair dealing …, that the plaintiff was entitled to a “fair” opportunity to stall in settling the action with the goal of retaining all of the marital assets upon the wife’s death. Equity is not served by permitting the plaintiff to rescind the separation agreement for lack of this opportunity.  Petrozza v Franzen, 2013 NY Slip Op 05739, 2nd Dept 8-28-13

 

Three-Step Analysis for Child Support Under Child Support Standards Act

The Second Department explained the three step analysis for the determination of child support obligations pursuant to the Child Support Standards Act (the parents in this case had a combined annual income of more than $700.000.00):

Under the first step of the analysis, a court must determine the parties’ combined parental income … . …Under the second step of the analysis, pursuant to Domestic Relations Law § 240(1-b)(c)(1), we multiply so much of the combined parental income up to $80,000.00—which was the “statutory cap” in effect on the date of the 2008 Judgment …—by the applicable statutory child support percentage, or 29% for the parties’ three children (see Domestic Relations Law § 240 [1-b][c][2]…). We then allocate the resulting amount … between the parties according to their pro rata share of the combined parental income (see Domestic Relations Law § 240 [1-b][c][2]). The third step in the analysis applies where, as here, the combined parental income exceeds the applicable statutory limit of $80,000.00. In this situation, “courts [have] the discretion to apply the [sub]paragraph (f)’ factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000” … . As applicable here, the subparagraph (f) factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed had the marriage or household not been dissolved (see Domestic Relations Law § 240[1-b][f][1][3]). These factors further the objectives of the CSSA, which include “the assurance that both parents would contribute to the support of the children” and that the court consider “the total income available to the parents and the standard of living that should be shared with the child” … .  Beroza v Hendler, 2013 NY Slip Op 05607, 2nd Dept 8-14-13

 

Criteria for Determining Whether Relocation of Custodial Parent is in Best Interests of the Children Explained

The Second Department explained the criteria for determining whether relocation of the custodial parent would be in the best interests of the children as follows:

In determining whether relocation is appropriate, the court must consider a number of factors, including the child’s relationship with each parent, the effect of the move on contact with the noncustodial parent, and each parent’s motives for seeking or opposing the move … . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . “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” … .

…The Family Court found credible the mother’s testimony at trial that, if she were permitted to relocate with the children to Florida, the children’s quality of life would be significantly improved on a day-to-day basis because the cost of living would be less than it is in New York, where she was struggling financially, and the mother would have several close family members in the vicinity of her new home to offer her support. Significantly, it was undisputed that the mother was the children’s primary caregiver, and that the father was minimally involved in the children’s lives.  Matter of Davis v Ogden, 2013 NY Slip Op 05626, Second Dept 8-14-13

 

Excessive Corporal Punishment Constituted Neglect and Derivative Neglect

In affirming Family Court’s determination that excessive corporal punishment constituted neglect and derivative neglect, the Second Department wrote:

Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect (…Penal Law § 35.10; Family Ct Act § 1012[f][i][B]). The Family Court’s finding of neglect as to the child Briana M., based upon the mother’s use of excessive corporal punishment, is supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]). The evidence demonstrated that the mother struck then-eight-year-old Briana with a belt numerous times, causing marks on her back and arms … .

The evidence, which established that the mother inflicted excessive corporal punishment on Briana, was sufficient to support the Family Court’s determination that the children Matthew M. and Alexis M. were derivatively neglected… . Matter of Matthew M (Fatima M), 2013 NY slip Op 05573, 2nd Dept 8-7-13

 

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