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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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THE SPEEDY TRIAL REQUIREMENTS FOR A JUVENILE DELINQUENCY PROCEEDING WERE VIOLATED (THIRD DEPT).

The Third Department, reversing the juvenile delinquency adjudication and dismissing the petition, determined the speedy trial requirements were violated:

“Where [a] juvenile is not detained, an adjudication on the merits of the petition’s charges, known as the ‘fact-finding’ phase of the process, ‘shall commence not more than [60] days after the conclusion of the initial appearance,’ subject to adjournments for good cause and special circumstances” (…Family Ct Act § 340.1 [2]). A court may adjourn a fact-finding hearing “on its own motion or on motion of the presentment agency for good cause shown for . . . not more than [30] days if the respondent is not in detention” and “[t]he court shall state on the record the reason for any adjournment of the fact-finding hearing” … . However, “a judicial referral for adjustment under Family C[t] Act § 320.6 operates to toll the limitations period set forth in Family C[t] Act § 340.1” … . “Efforts at adjustment . . . may not extend for a period of more than three months without leave of the court, which may extend the period for an additional two months” … .

Here, the record establishes that the initial appearance on the petition was on February 1, 2021, at which time respondent appeared with counsel, was arraigned and entered a general denial to the petition (see Family Ct Act §§ 320.1; 320.4). Measured from the February 1 initial appearance date, 273 days passed before the scheduled November 1, 2021 fact-finding hearing.[FN3] Of the 273 days, tolling for the entire adjustment period of 153 days[*3], leaves 120 days before the scheduled fact-finding hearing, well-beyond the initial 60-day speedy trial period, as well as the 90-day speedy trial period, assuming without deciding that the 30-day adjournment was properly granted (see Family Ct Act § 340.1 [4], [5]). As such, the speedy trial requirements relative to juvenile delinquency proceedings were violated and the petition must be dismissed. Matter of Zachary L., 2023 NY Slip Op 03735, Third Dept 7-6-23

Practice Point: The speedy trial requirements for a juvenile delinquency proceeding, explained in this decision, were violated.

 

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AT THE TIME OF THE JUVENILE’S ADMISSION TO POSSESSION OF STOLEN PROPERTY THE JUDGE DID NOT INFORM HIM OR HIS MOTHER OF THE EXACT NATURE OF HIS “PLACEMENT OUTSIDE THE HOME OR ITS POSSIBLE DURATION” AS REQUIRED BY FAMILY COURT ACT SECTION 3213(1); ORDER REVERSED (THIRD DEPT).

The Third Department, reversing the juvenile’s admission in this juvenile delinquency proceeding, determined the juvenile and his mother were not adequately informed of the consequences of the admission to possession of stolen property:

… [T]he allocution in which respondent admitted to [possession of stolen property] was fatally defective because Family Court … failed to comply with the requirements of Family Ct Act § 321.3 (1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home . . . for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” … . “Inasmuch as the provisions of Family Ct Act § 321.3 (1) are mandatory and cannot be waived, the order must be reversed” … . Matter of Tashawn MM., 2023 NY Slip Op 03745, Third Dept 7-6-23

Practice Point: At the time of a juvenile’s admission in a juvenile delinquency proceeding, the juvenile must be informed of the exact nature of any “placement outside of the home and its possible duration.” The failure to so inform the juvenile requires reversal of the placement order.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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MOTHER WAS AWARE OF THE GROUND FOR DISQUALIFYING FATHER’S ATTORNEY FOR YEARS BEFORE THE MOTION TO DISQUALIFY WAS MADE; MOTHER THEREBY WAIVED ANY OBJECTION TO FATHER’S COUNSEL (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined mother’s motion to disqualify father’s attorney should not have been granted because mother was aware of the ground for the motion in 2019 and did not move to disqualify until 2022. She was deemed to have waived any objection to father’s attorney:

The Family Court improvidently exercised its discretion in granting that branch of the mother’s motion which was to disqualify the father’s attorneys on the basis that the father’s current wife, the children’s stepmother, works as a paralegal in the law office that employs the father’s attorneys. * * *

Where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time … . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation … . …

Here, the mother was aware of the employment of the father’s current wife at the law firm representing the father since 2019. Accordingly, the mother’s failure to move to disqualify the father’s attorneys until April 2022 constituted a waiver of her objection to the father’s legal representation … . In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There is no evidence that during the course of her employment, the father’s current wife worked on the father’s case or that she otherwise communicated with the children about the case … . Matter of Marotta v Marotta, 2023 NY Slip Op 03694, Second Dept 7-5-23

Practice Point: If a party is aware of the ground for disqualification of the opposing party’s counsel but does not make a timely motion to disqualify (here years had passed), the moving party will be deemed to have waived any objection to opposing counsel.

 

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RESPONDENT JUVENILE WAS NOT INFORMED THE FACT FINDING HEARING IN THIS JUVENILE DELINQUENCY PROCEEDING WOULD GO FORWARD IN HIS ABSENCE (THE PARKER WARNING); THEREFORE RESPONDENT DID NOT WAIVE THE RIGHT TO BE PRESENT AND THE ADJUDICATION WAS REVERSED BECAUSE OF HIS ABSENCE (FOURTH DEPT). ​

​The Fourth Department, reversing Family Court in this juvenile delinquency proceeding, determined that the respondent juvenile was not informed that the fact finding hearing would proceed in his absence. Therefore he did not not waive his right to be present at the hearing:

Respondent contends that the court violated his constitutional and statutory right to be present at the fact-finding hearing. We agree, and we therefore reverse the order and remit the matter to Family Court for further proceedings on the petition. “[R]espondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings … . Respondents “may, however, waive the right to be present at such proceedings” … . ” ‘In order to effect a voluntary, knowing and intelligent waiver, the [respondent] must, at a minimum, be informed in some manner of the nature of the right to be present at [the fact-finding hearing] and the consequences of failing to appear’ for that hearing” … . Here, the court did not advise respondent that he had a right to be present at the fact-finding hearing and that the consequence of his failure to appear would be that the fact-finding hearing would proceed in his absence (see generally People v Parker, 57 NY2d 136, 141 [1982]). We therefore conclude on this record that there is no voluntary, knowing, and intelligent waiver of respondent’s right to be present at the hearing … . Matter of Timar P. (James B.), 2023 NY Slip Op 03654, Fourth Dept 6-30-23

Practice Point: The Parker warning is required in juvenile delinquency proceedings in Family Court.

 

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THE NOTICE OF CLAIM IN THIS CHILD VICTIMS ACT CASE SUFFICIENTLY ALLEGED CLAIMANT’S INJURY, DEFENDANT’S FAILURE TO PROTECT CLAIMANT WHILE IN FOSTER CARE AND THE TIME THE CLAIM AROSE (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined the Notice of Claim in this Child Victims Act proceeding sufficiently described claimant’s injury, the state’s failure to protect claimant while in foster care, and the time when the claim arose:

… [T]he claim sufficiently provided the defendant with a description of the manner in which the claimant was injured, and how the defendant was negligent in allegedly failing to protect the claimant from sexual abuse while a resident in a state-certified foster care facility. The claimant is not required to set forth the evidentiary facts underlying the allegations of negligence in order to satisfy the section 11(b) “nature of the claim” requirement … . As the claim is sufficiently detailed to allow the defendant to investigate and ascertain its liability, it satisfies the nature of the claim requirement of Court of Claims Act § 11(b)… .

… The claim alleges that the claimant was sexually abused repeatedly in 1992 and 1993, on numerous and regular occasions, including conduct taking place in his room three to four times a week. This Court has stated recently in the context of the CVA, that “[w]e recognize that in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … . Thus a claimant commencing a claim pursuant to the CVA is not required to allege the exact date on which the sexual abuse occurred … . As the claim here sufficiently alleges the time when the abuse occurred, the Court of Claims properly declined to dismiss the claim on that ground … . Davila v State of New York, 2023 NY Slip Op 03451, Second Dept 6-28-23

Practice Point: In this Child Victims Act case against the state alleging the failure to protect claimant in foster care, the Notice of Claim sufficiently alleged the injury, defendant’s negligence and the time the claim arose.

 

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AN ATTORNEY’S REFERENCE IN AN EMAIL TO A NONPARTY AS A “WIFE BEATER” WAS ABSOLUTELY PRIVILEGED AS PERTINENT TO THE DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a statement in an email written by an attorney in a divorce action, referring to plaintiff as a wife beater, was pertinent to the divorce action and was absolutely privileged:

The defendant Dina S. Kaplan is an attorney who represented the defendant Eric Dorfman in a divorce action (hereinafter the divorce action). Kaplan allegedly represented to the court in the divorce action, including court personnel, that the plaintiff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about the plaintiff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys. * * *

… [U]nder the extremely liberal test of pertinency, Kaplan’s statement allegedly referring to the plaintiff as a “wife beater . . . who is in criminal prosecution” was pertinent to the divorce action and, thus, is absolutely privileged. The email exchange between Kaplan and Adler was initially focused on a dispute over Dorfman’s financial ability to pay his wife maintenance and child support. The conversation turned, however, to the behavior of the parties to the divorce action while caring for their children, and Kaplan’s statement that the plaintiff is a “wife beater . . . who is in criminal prosecution” was responsive and therefore relevant to the issue of the parties’ behavior … . Under the circumstances, it cannot be said that the statement was “so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” the plaintiff, who was not among the participants in the conversation, was not otherwise mentioned in the email exchange, and was not even directly identified in the statement … . Davidoff v Kaplan, 2023 NY Slip Op 03450, Second Dept 6-28-23

Practice Point: If a defamatory statement made by a divorce attorney is pertinent to the divorce action, the statement is absolutely privileged.

 

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NO APPEAL LIES FROM AN ORDER ISSUED ON DEFAULT, A MOTION TO VACATE IS THE ONLY REMEDY; NO APPEAL LIES FROM AN ORDER ISSUED ON CONSENT (FIRST DEPT).

The First Department, dismissing the appeal in this custody case, determined (1) no appeal lies from an order issued on mother’s default, and (2) no  appeal lies from an order entered with mother’s consent:

Because the fact-finding order was issued on the mother’s default, it is not appealable as of right and her remedy was to move to vacate (CPLR 5511 …). Although the mother appeared on the final date of the inquest after petitioner’s witnesses had testified, she was not present during the majority of the fact-finding hearing, and her counsel was not authorized to proceed in her absence … . The mother also did not offer any evidence or seek to testify.

Furthermore, no appeal lies from the dispositional order, as it was entered on the mother’s consent and she is therefore not an aggrieved party under CPLR 5511 … .  Matter of P. A. (Joseph M.), 2023 NY Slip Op 03432, First Dept 6-27-23

Practice Point: No appeal lies from an order issued on default. The only available remedy is a motion to vacate the default.

Practice Point: No appeal lies from an order issued on consent because the consenting party is not “aggrieved.”

 

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IN A PROCEEDING SEEKING FINDINGS TO ENABLE A CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) THE SUBMISSION OF CERTIFIED COPIES OF BIRTH CERTIFICATES OR DEATH CERTIFICATES IS NOT REQUIRED; THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Family Court, determined this proceeding seeking findings to enable the child to apply for special immigrant juvenile status (SIJS) should not have been dismissed on the ground that certified copies of birth certificates and/or death certificates were not submitted:

… [P]etitioner … commenced this proceeding pursuant to Family Court Act article 6 to be appointed as the guardian of the child. Thereafter, the petitioner moved for the issuance of an order … making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). … Family Court dismissed the petition and denied the petitioner’s motion. …

… [T]here is no express requirement to submit certified copies of birth certificates or death certificates in a proceeding such as this pursuant to Family Court Act § 661(a) … . …[S]ince the court dismissed the petition without conducting a hearing or considering the child’s best interests, we remit the matter to the Family Court … . Matter of Anuar S. A. O. (Yari C. B. M. Lizeth O. M.), 2023 NY Slip Op 03353, Second Dept 6-21-23

Practice Point: Certified copies of birth certificates or death certificates need not be submitted in a proceeding for findings enabling a child to apply for special immigrant juvenile status (SIJS). Here the proceeding should not have been dismissed on that ground and the matter was remitted for a determination on the merits.

 

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