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IN THIS CHILD VICTIMS ACT LAWSUIT ALLEGING PLAINTIFF WAS ABUSED BY A SCHOOL JANITOR, THE SOCIAL SERVICES LAW 413 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE JANITOR WAS NOT “A PERSON LEGALLY RESPONSIBLE” FOR PLAINTIFF’S CARE; THEREFORE THE SCHOOL HAD NO DUTY TO REPORT THE ABUSE PURSUANT TO THE SOCIAL SERVICES LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Social Services Law cause of action in this Child Victims Act complaint should have been dismissed. Plaintiff alleged she was abused by a school janitor and the defendant school violated Social Services Law 413 by not reporting the abuse. Social Services Law 413 applies only to a “person legally responsible” for the plaintiff’s care:

… [T]he Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging a violation of Social Services Law § 413. Since the janitor was not a “person legally responsible” for the plaintiff’s care within the meaning of Family Court Act § 1012(e), the defendants had no duty under Social Services Law § 413(1)(a) to report the alleged abuse of the plaintiff by the janitor (see Social Services Law § 412[1] …). Sullivan v Port Wash. Union Free Sch. Dist., 2023 NY Slip Op 01022, Second Dept 2-22-23

Practice Point: Pursuant to Social Services Law 413 a school is under a duty to report abuse by a person legally responsible for a student’s care. That statute did not apply here in this Child Victims Act lawsuit alleging abuse by a school janitor.

 

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FAMILY COURT SHOULD NOT HAVE RELINQUISHED TEMPORARY EMERGENCY JURISDICTION OVER THE NEGLECT PROCEEDING UPON LEARNING FATHER HAD COMMENCED A CUSTODY PROCEEDING IN TEXAS; THERE WAS NO ASSURANCE FROM THE TEXAS COURT RE: SAFEGUARDING THE CHILD (FIRST DEPT).

The First Department, reversing Family Court in this neglect proceeding, determined the judge should not have relinquished temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) when father commenced custody proceedings in Texas:

Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and Family Court’s order fails to state any basis for finding, that the Texas court had “home state” jurisdiction, since the child had not resided there for six months immediately preceding commencement of the father’s Texas custody proceeding (Domestic Relations Law §§ 75-a[7]; 76[1][a]). Second, the record and Family Court’s order are also devoid of any factual basis for finding that any of the alternative jurisdictional bases applied to Texas. There is no evidence that the child at that time had a “significant connection” with Texas or that “substantial evidence . . . concerning the child’s care, protection, training and personal relationships” was available in Texas (Domestic Relations Law § 76[1][b]). Finally, given the allegations in the neglect petition and the fact that Family Court had been informed … that the Texas Department of Family and Protective Services would not investigate whether the father was a danger to the child because the mother and child resided in New York, Family Court should not have relinquished emergency jurisdiction “in the absence of any orders from the Texas court safeguarding the child[]” … .

Moreover, it is not clear whether New York might have had jurisdiction to make an initial custody determination under Domestic Relations Law § 76(1)(b), given that the child had not lived in Texas for the preceding six months, had lived in New York with his mother when the father filed his Texas custody petition, and was receiving medical care, attending daycare, and receiving services through ACS here. Accordingly, Family Court should not have denied the mother’s motion without first holding a hearing. Matter of Nathaniel H. (Nathaniel H.–Dayalyn G.), 2023 NY Slip Op 00927, First Dept 2-16-23

Practice Point: The judge in this neglect proceeding should not have relinquished temporary emergency jurisdiction upon learning of father’s custody proceeding in Texas. Findings of fact required by the Domestic Relations Law were not made and there was no assurance the Texas court would safeguard the child.

 

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THE JUDGE IN THIS CUSTODY PROCEEDING SHOULD NOT HAVE SUSPENDED FATHER’S PARENTAL ACCESS WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have suspended father’s parental access without holding a “best interests of the child” hearing:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required”… .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ children … . Moreover, the court’s mere reliance upon “adequate relevant information,” as opposed to admissible evidence, was improper … . Matter of Dysko v Dysko, 2023 NY Slip Op 00863, Second Dept 2-15-23

Practice Point: Here in this custody action the judge should not have suspended father’s parental access without holding a “best interests of the child” hearing.

 

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THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS CUSTODY CASE PRECLUDED APPELLATE REVIEW; MATTER REMITTED (FOURTH DEPT),

The Fourth Department, remitting the matter to Family Court, determined the judge’s failure to make findings of fact in this custody case precluded appellate review:

The court, in the order on appeal, however, failed to make any factual findings whatsoever to support the award of primary physical custody. 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 initial custody determination … , nor did it make any findings with respect to 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” … . Matter of Ianello v Colonomos, 2023 NY Slip Op 00767, Fourth Dept 2-10-23

Practice Point: Here in this custody case the judge did not make findings of fact, which precluded appellate review. The case was sent back.

 

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THE JUDGE SHOULD NOT HAVE LEFT IT TO THE AGENCY TO DETERMINE FATHER’S VISITATION AND SHOULD NOT HAVE MADE THERAPEUTIC COUNSELING A PREREQUISITE FOR VISITATION (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court determined (1) the judge should not have left it to the agency to decide whether father should receive visitation, and (2) father’s participation in therapeutic counseling should not have been made a prerequisite to unsupervised overnight weekend visitation:

… [T]he court erred in failing to set an appropriate supervised visitation schedule by implicitly leaving it to the agency to determine whether the father would receive any such visitation … .

… “Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Matter of Bonilla-Wright v Wright, 2023 NY Slip Op 00756, Fourth Dept 2-10-23

Practice Point: Family Court cannot delegate its authority to determine whether father will receive visitation or its authority to set up a visitation schedule. Therapeutic counseling can not be made a prerequisite for visitation or custody.

 

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THE JUDGE FAILED TO INQUIRE FURTHER DURING THE PLEA ALLOCUTION WHEN DEFENDANT SAID HE DID NOT VIOLATE THE ORDER OF PROTECTION INTENTIONALLY; THERE IS NO NEED TO PRESERVE A DEFECTIVE-ALLOCUTION ERROR; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of an aggravated family offense by guilty plea, determined the judge should have inquired further when defendant stated he did not intend to violate the order of protection when he sent a letter to the protected person. A defective allocution will be considered on appeal in the absence of preservation:

… [A]fter acknowledging his awareness of the valid and effective order of protection directing him to have no contact with the protected person, defendant stated that he “didn’t intentionally violate” the order of protection by sending the protected person a letter and instead asserted that any violation “was unintentional.” Following an off-the-record discussion between defendant and defense counsel, defendant admitted that sending the letter did, in fact, violate the order of protection, but the court did not inquire, and defendant never clarified, whether his conscious objective was to disobey the order of protection … . Contrary to the People’s assertion, which “conflates the culpable mental states for acts done ‘intentionally’ … and those done ‘knowingly’ … , this is not a case in which defendant’s “further statements removed any doubt regarding th[e requisite] intent” … . People v Vanwuyckhuyse, 2023 NY Slip Op 00754, Fourth Dept 2-10-23

Practice Point: The defendant said he did not intend to violate the order of protection during the plea allocution and the judge did not make the required inquiry. An allocution error need not be preserved for appeal by moving to withdraw the plea. The conviction was reversed.

 

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ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).

The Fourth Department determined Family Court did not have the authority to make mother’s compliance with drug-test, medication and counseling directives a prerequisite for visitation:

… [T]he court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with the children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation … . We therefore modify the orders accordingly, and we remit the matters to Family Court to fashion schedules for the mother’s therapeutic visitation with each child. Matter of Sharlow v Hughes, 2023 NY Slip Op 00518, Fourth Dept 2-3-23

Practice Point: Family Court can direct mother to submit to drug tests, engage in counseling and take medication but it cannot make the directives a prerequisite for visitation.

 

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FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have proceeded without a searching inquiry into whether father was making an intelligent waiver of his right to counsel:

At an appearance before the Family Court on the mother’s petition, the court advised the father of his right to counsel, and the father requested an adjournment to obtain an attorney. The court stated that it would email the father contact information for Legal Aid and scheduled a date for a virtual hearing on the petition. On the scheduled hearing date, the father appeared without counsel and the court did not inquire whether the father was waiving his right to counsel. The court commenced the hearing with the father proceeding pro se. By order … , the court, after the hearing, among other things, awarded the mother primary physical custody of the child, with parental access to the father. The father appeals.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel … . “A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel” … . “[T]o determine whether a party has validly waived the right to counsel, a court must conduct a searching inquiry to ensure that the waiver has been made knowingly, voluntarily, and intelligently” … .

Here, the Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Mercado v Arzola, 2023 NY Slip Op 00321, Second Dept 1-25-23

Practice Point: Here father, the respondent in a custody proceeding, had a right to counsel. The judge should not have proceeded with the hearing without making a searching inquiry into whether father was knowingly, intelligently and voluntarily waiving his right to counsel.

 

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THE ABANDONMENT PETITION SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE RESPONDENT FATHER INTENDED TO FOREGO HIS PARENTAL RIGHTS AND, IN FACT, PETITIONER AFFIRMATIVELY INTERFERED WITH FATHER’S ATTEMPTS TO MAINTAIN CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the petitioner (Schenectady County Department of Social Services) did not demonstrate father (respondent) had abandoned the children and, in fact, had improperly prevented father from visiting the children. The abandonment petition should have been dismissed:

… [P]etitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights … . The record demonstrates that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent has been an active participant during the entire proceeding … . Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The record further reflects that respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic.

… There are several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with [*3]the children due to his late confirmation of the scheduled visit or arrival — including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. * * *

Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker — who relied on text messages from the coordinator, who did not testify at the hearing — petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children. Matter of Syri’annah PP. (Sayyid PP.), 2023 NY Slip Op 00252, Third Dept 1-19-23

Practice Point: Here the caseworkers took steps to affirmatively prevent father from seeing his children. The abandonment petition should have been dismissed for failure to demonstrate father’s intent to forego his parental rights.

 

ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s custody modification petition should not have been dismissed. Mother’s allegations that father had not abided by the visitation terms (visits must be in a public place) and father used drugs during visitation adequately alleged a change in circumstances:

To establish a change in circumstances, the party must demonstrate “new developments or changes that have occurred since the previous custody order was entered” … . Testimony at the fact-finding hearing established, by a preponderance of the evidence … that the father was not abiding by the visitation terms as set forth in the prior order…. . Specifically, although the prior order required that the father’s visitation occur in a public place, the preponderance of the proof demonstrated that much of it was occurring in private residences or hotels. Moreover, there was also testimony that the father was using drugs during the child’s visits. Given the circumstances of this case, the father’s failure to comply with the visitation terms as set forth in the prior order constitute a change in circumstances … . Matter of Harvey P. v Contrena Q., 2023 NY Slip Op 00257, Third Dept 1-19-23

Practice Point: Failure to abide by visitation terms can constitute a change in circumstances which will support a modification of custody.

 

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