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Juvenile Delinquency Petition Jurisdictionally Defective; Insufficient Allegations that Pills Were a Controlled Substance

The Fourth Department determined a juvenile delinquency petition was jurisdictionally defective because it included only the conclusory allegation that the juvenile possessed Adderall without any evidentiary facts to support it:

The petition alleged that respondent knowingly and unlawfully sold a controlled substance, i.e., Adderall (see Penal Law § 220.31).The Court of Appeals has made clear that “[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement” … . Petitioner must provide factual allegations that establish a reliable basis for inferring the presence.  The petition here is supported by only the conclusory statements of respondent’s classmate and an officer that the substance was Adderall. Their statements are not “supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually[Adderall]” … .  Matter of Brandon A, CAF 12-01651, 231, 4th Dept, 4-26-13

 

Mental Health Counseling Can Not Be Made a Condition of Visitation and Court Can Not Delegate Authority to Determine When Visitation Should Be Resumed

In upholding Family Court’s denial of visitation to the mother, the Fourth Department noted:  “The court erred, however, in directing the mother to engage in mental health counseling as a condition of visitation and in delegating its authority to the children’s counselor to determine when a resumption of visitation would be appropriate … .”  Matter of Roskwitalski, v Fleming, CAF 12-01090, 370, 4th Dept, 4-26-13

 

Hearsay Evidence in Neglect Proceeding Was Not Admissible—Petition Dismissed

In reversing Family Court and dismissing a neglect petition against the father, the Fourth Department determined the hearsay evidence presented against the father was inadmissible:

At the fact-finding hearing…, “only competent, material and relevant evidence may be admitted” (§ 1046 [b] [iii]). Here, “[t]he evidence offered in support of the petition against the father consisted almost entirely of out-of-court statements made by the mother to a police officer and caseworker[s] concerning a domestic dispute” …. Those statements were not admissible against the father in the absence of a showing that they came within a statutory or common-law exception to the hearsay rule … Contrary to the statement of Supreme Court, we conclude that the hearsay statements were not admissible “under article 10” of the Family Court Act (see generally § 1046 [a]). Matter of Nicholas C, CAF 11-01532, 305, 4th Dept, 4-26-13

 

Father Whose Parental Rights Had Been Terminated Had Standing to Seek Modification or Vacatur of Order of Protection

The Fourth Department determined that a father whose parental rights had been terminated had standing to seek modification or vacatur of a ten-year-old order of protection.  The Fourth Department wrote:

Pursuant to Family Court Act § 656, the court may issue an order of protection in conjunction with any other order issued pursuant to article 6, i.e., an order terminating parental rights. We conclude that the order terminating the father’s parental rights is separate and distinct from the order of protection entered in conjunction with that termination order. Thus, the father has standing to challenge the validity of that separate order of protection.  Matter of Anna B …, CAF 12-00562, 303, 4th Dept, 4-26-13

 

Incarcerated Father Entitled to Reinstatement of His Petition for Visitation

In reversing the dismissal of an incarcerated father’s petition for visitation with his nine-year-old child, the Fourth Department wrote:

Here, we conclude that “the record is not sufficient to determine whether visitation [with the father] would be detrimental to [the child’s] welfare” …  Additionally, neither the mother nor the [attorney for the child] presented any evidence rebutting the presumption that visitation with the father is in the child’s best interests, and the record does not otherwise contain any evidence rebutting that presumption … .  Matter of Brown v Divelbliss, CAF 12-00555, 234, 4th Dept, 4-26-13

 

Inability of One of Two Children to Get Along with Custodial Parent Was a Sufficient Changed Circumstance to Justify the Award of Custody of that One Child to the Other Parent

The Fourth Department affirmed Family Court’s ruling that the father had demonstrated a change of circumstances warranting the change of custody for one of two children based upon the mother’s strained relationship with that one child:

Here, the parties vary only in their ability “to provide for the child’s emotional and intellectual development” …, and the court implicitly concluded that the mother was the less fit parent with respect to that factor …. The court determined that it was in Kaitlyn’s best interests to reside with the father because of the stress caused by the mother’s interactions with her, but that it was in Danielle’s best interests to continue residing with the mother because she had learned to cope with her mother’s personality. “Although the separation of siblings is unfortunate” …, here the children have different needs.  Indeed, this “is one of those rare cases where the breakdown in communication between the parent and child that would require a change of custody is ‘applicable only as to the best interests of one of [two] children’ ” …. Matter of O’Connell, v O’Connell, CAF 12=01649, 232, 4th Dept, 4-26-13

 

Family Court Failed to Apply Equitable Distribution to Marital Assets and Failed to Give Wife Credit for Enhanced Earnings Generated by Husband’s Master’s Degree

The Fourth Department determined the trial court erred in failing to equitably distribute all or portions of an investment account, a 403-b deferred compensation account and preretirement death benefits.  In addition the Fourth Department determined the wife was entitled to a portion of her husband’s enhanced earnings from his master’s degree.  The underlying principles and authority for the wife’s entitlement to these assets and earnings are described in the decision.  Lauzonis v Lauzonis, CA 12-00188, 209, 4th Dept, 4-26-13

 

Father’s Consent to Adoption Not Required

In affirming Family Court’s determination the father’s consent to adoption was not required, the Fourth Department explained the analytical criteria:

“[T]here are two steps in determining whether the biological father’s consent may be dispensed with in a proceeding seeking approval of the adoption of his child[ren]” … “Using the guidelines set forth in Domestic Relations Law § 111 (1) (d), [Family C]ourt must first decide whether the father has demonstrated a substantial relationship with his child[ren] conferring [on him] the right to consent” to the adoption ….“Only after the [biological] father establishes his right of consent to the adoption . . . does the court proceed to determine [pursuant to section 111 (2) (a)] whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and obligations as manifested by his . . . failure for a period of six months to visit the child[ren] and communicate with the child[ren] or person having legal custody of the child[ren], although able to do so’ ” ….  Matter of Adoption…, CAF 12-00393, 33, 4th Dept, 4-26-13

 

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“Depraved Indifference to Human Life” Defined Differently in Family Law, as Opposed to Criminal Law, Context​

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law.  In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent.  Judge Read wrote:

Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct.  Matter of Dashawn W …, No 71, CtApp, 4-25-13

 

Grant of Visitation to Grandmother Reversed

In reversing Family Court’s grant of visitation rights to the children’s grandmother (more than what the mother wanted to allow), the Third Department wrote:

Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which “equity would see fit to intervene,” i.e., that equitable circumstances exist (Domestic Relations Law § 72 [1]…). * * * Upon our review of the testimony, we conclude that petitioner  did  not  establish  equitable  circumstances  that  justify according her standing to force the mother to accept visitation outside parameters  within which  she is comfortable as a fit and responsible parent … .  “[C]ourts should  not  lightly intrude on  the family  relationship  against  a  fit parent’s  wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” …  Matter of Hill v Juhase, 514036, 3rd Dept, 4-25-13

 

 

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