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THE RESPONDENT IN THIS JUVENILE DELINQUENCY PROCEEDING WAS ENTITLED TO IMPEACHMENT EVIDENCE CONCERNING THE ARRESTING OFFICERS TO THE EXTENT ALLOWED UNDER CRIMINAL PROCEDURE LAW (CPL) 245.20 (FIRST DEPT).

The First Department, reversing Family Court, determined the respondent-appellant in this juvenile delinquency proceeding was entitled to impeachment evidence concerning the arresting officers to the extent authorized by Criminal Procedure Law (CPL) 245.20:

While not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws (US Const, 14th Amend; NY Const, art I, § 11 …).

A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant … , and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Matter of Jayson C., 2021 NY Slip Op 06794, First Dept 12-7-21

 

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DOUBLE HEARSAY SUPPORTED THE DENIAL OF THE APPLICATION TO HAVE A REPORT MAINTAINED BY THE CENTRAL REGISTRY OF CHILD ABUSE AND MALTREATMENT AMENDED TO BE UNFOUNDED AND EXPUNGED (THIRD DEPT).

The Third Department determined that double hearsay supported the denial of petitioner’s application to have a report maintained by the Central Register of Child Abuse and Maltreatment amended to be unfounded and expunged:

… [O]ur review of the record confirms that the double hearsay evidence introduced at the expungement hearing was sufficiently relevant and probative to the inquiries of whether petitioner drove under the influence of alcohol with the children in the car and whether she failed to exercise a minimum degree of care in providing the children with proper supervision and guardianship by misusing alcohol to the extent of losing control of her actions … . Specifically, statements made to the investigating caseworker by the oldest and middle children, which were memorialized in the indicated report, supported the conclusion that petitioner drove under the influence of alcohol with the children in the car on at least two occasions in May 2019. Such statements were corroborated by petitioner’s admissions that, after roughly five years of sobriety, she relapsed in or around mid-May and that she “had a buzz” while driving the children. Further, the oldest child reported to the caseworker that, on the evening of May 29, 2019, she observed petitioner to be intoxicated, “sick” and “throwing up,” which prompted her to call her maternal grandparents. The oldest child’s account was corroborated by the maternal grandfather, who stated that he believed petitioner to have been intoxicated on the night in question and that it was “an ongoing concern.” Matter of Elizabeth W. v Broome County Dept. of Social Servs., 2021 NY Slip Op 06732, Third Dept 12-2-21

 

THE BIOLOGICAL FATHER’S CONSENT TO THE ADOPTION OF HIS CHILD WAS NOT REQUIRED BECAUSE HE FAILED TO SUPPORT THE CHILD DESPITE THE MEANS TO DO SO (SECOND DEPT). ​

The Second Department determined father’s consent to the adoption of his child is not required where the father has not maintained contact with the child:

“A biological father’s consent to adopt a child over six months old who was born out of wedlock is required only if the father ‘maintained substantial and continuous or repeated contact with the child as manifested by’ payment of reasonable child support and either monthly visitation or ‘regular communication’ with the subject child[ ] or custodian” … . “Domestic Relations Law § 111(1)(d) imposes a dual requirement upon the biological father, and the father’s unexcused failure to satisfy either of these requirements is sufficient to warrant a finding that his consent to the proposed adoption[ ] is not required” … .

Here, the Family Court properly determined that the father, by failing to financially support the child, despite having the means to do so, did not maintain substantial and continuous or repeated contact with the child in accordance with Domestic Relations Law § 111(1)(d) … . Matter of Raniah M. K. (Joma K.), 2021 NY Slip Op 06616, Second Dept 11-24-21

 

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THE CHILD IN THIS CUSTODY MATTER RESIDED IN ITALY, THEREFORE NEW YORK WAS NOT THE CHILD’S “HOME STATE” AND NEW YORK DID NOT HAVE JURISDICTION; FATHER’S APPLICATION FOR SUBSTITUTE SERVICE IN ITALY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court in this custody matter, determined: (1) New York was not the child’s “home state” because the child had resided in Italy for the 10 months before the action was commenced (therefore New York did not have jurisdiction): and (2) father’s application for substitute service in Italy should not have been granted because he did not make the required showing of the “impracticality” of the method of service required by the Hague Convention:

Applying the proper standard set forth in Domestic Relations Law § 76 (1) (a), it is incontrovertible that Italy, not New York, is the child’s home state. The child moved to Italy with the wife in July 2019 in accordance with the separation and settlement agreement, which clearly demonstrated the parties’ intention that the child live with the wife in Italy for a period of roughly three years. The child continued to live in Italy from July 2019 through this action’s commencement in June 2020. Although the child visited the husband in New York twice between July 2019 and February 2020, first for a period of about three weeks and later for a period of about six weeks, those periods merely constituted temporary absences that do not interrupt the six-month residency period required by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] for home state status … . * * *

In support of his application for substituted service, the husband failed to come forward with sufficient proof demonstrating an actual effort to effectuate service upon the wife at her residence in Italy. The only proof submitted by the husband was an email — dated August 12, 2020, more than two months after commencement of the action — from an associate at a process service company that the husband’s counsel often used for service of process. The email estimated that service upon the wife in Italy in accordance with the Hague Convention would take roughly 18 to 20 weeks in total, which included “a few days” for Italian translation, 10 to 14 weeks for service and an additional two to four weeks for return of the proof of service. Although we are mindful that the COVID-19 pandemic remained an issue at the time of the August 2020 email, there was no indication in the email that the 18 to 20-week estimate was atypical or that the COVID-19 pandemic rendered service of process under the Hague Convention impracticable. Joseph II. v Luisa JJ., 2021 NY Slip Op 06586, Third Dept 11-24-21

 

THE WIFE’S TEMPORARY MAINTENANCE ARREARS SHOULD HAVE BEEN CALCULATED FROM THE DATE OF THE WIFE’S APPLICATION FOR MAINTENANCE, NOT THE PRIOR DATE WHEN SHE BECAME UNEMPLOYED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the temporary maintenance awarded the wife should have commenced on the date of her application for temporary maintenance, not the prior date when she became unemployed:

We … agree with the husband that Supreme Court erred in ordering him to pay arrears retroactive to the wife’s date of unemployment, rather than the date of her application for temporary maintenance. The submissions demonstrated that the wife lost her job and the court made temporary maintenance retroactive to that date, November 26, 2019, yet the wife did not file her motion seeking temporary maintenance until April 2020. As applications for pendente lite relief are to be calculated from the date of the application …, the court’s calculation of arrears from the date of the wife’s unemployment was error. Carter v Fairchild-Carter, 2021 NY Slip Op 06594, Third Dept 11-24-21

 

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IN THIS POST-DIVORCE ACTION, THE PROCEEDS OF THE SALE OF THE PARTIES’ REAL PROPERTY SHOULD NOT HAVE BEEN DISTRIBUTED WITHOUT A FULL EVIDENTIARY HEARING (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the court should have conducted a hearing before distributing the proceeds of the sale of the parties’ farm in this post-divorce action:

… [T]he court erred in deciding the value of plaintiff’s credits without a full evidentiary hearing permitting the parties to offer proof of valuation … . Plaintiff offered no direct proof of the value of the relevant assets, and defendant was not afforded an opportunity to cross-examine the court-appointed appraiser or review the appraisals … . The court’s decision also failed to articulate the factors it considered or the reasons for its determination to partially grant certain credits to plaintiff and deny others … . … [W]e remit the matter to Supreme Court for a hearing and appropriate findings of fact and conclusions of law with respect to the parties’ entitlement to credits. Edwards v Edwards, 2021 NY Slip Op 06504, Fourth Dept 11-19-21

 

MOTHER TIMELY REVOKED HER EXTRA-JUDICIAL SURRENDER OF HER CHILD FOR ADOPTION; FAMILY COURT SHOULD NOT HAE DENIED MOTHER’S MOTION TO DEEM THE SURRENDER A NULLITY AND SHOULD NOT HAVE CONDUCTED A BEST INTERESTS HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother properly revoked her extra-judicial surrender of the child for adoption and Family Court should not have denied mother’s motion to deem the surrender a nullity and should not have conducted a best interests hearing:

… [T]he plain language of Social Services Law § 383-c (6) (a) mandates that a timely revocation shall render the extra-judicial surrender a nullity and that the child shall be returned to the care and custody of the authorized agency, and the statute contains no language providing for a best interests hearing in the event of such a timely revocation … . * * *

… [T]he court here had no statutory basis for refusing to deem the surrender a nullity, denying the birth mother’s motion, and instead conducting a best interests hearing. Matter of Tony S.H. (Katrina F.), 2021 NY Slip Op 06238, Fourth Dept 11-12-21

 

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FAMILY COURT SHOULD NOT HAVE RETURNED THE CHILD TO THE PARENTS’ CUSTODY AFTER THE CHILD HAD BEEN TEMPORARILY REMOVED BECAUSE OF APPARENT ABUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parents’ application for the return of their child after a temporary removal pursuant to Family Court Act article 10 should not have been granted:

“An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child’s life or health'” … . * * *

The petitioner established a prima facie case of child abuse against the parents by presenting evidence that injuries Ezara sustained would not ordinarily occur absent an act or omission of the caregiver, and that the parents were the caregivers of Ezara during the relevant time period … . Specifically, the petitioner’s expert in child abuse pediatrics testified that the then two-month-old Ezara had multiple rib fractures, which appeared to have been sustained at different times, as well as fractures in his legs and a laceration of his spleen, and further testified within a reasonable degree of medical certainty that these injuries were caused by non-accidental trauma. The parents failed to rebut the presumption of culpability with a reasonable and adequate explanation for Ezara’s injuries … . Further, the petitioner established that the parents demonstrated such an impaired level of parental judgment with respect to Ezara so as to create a substantial risk of harm to any child in their care … . Matter of Chase P. (Maureen Q.), 2021 NY Slip Op 06173, Second Dept 11-10-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new custody hearing, determined the judge did not make the required inquiry before allowing defendant to waiver her right to counsel:

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262[a][v]; see Judiciary Law § 35[8] …). A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right … . Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order … . Wondemagegehu v Edem, 2021 NY Slip Op 06213, Second Dept 11-10-21

 

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THE INSTRUCTION THAT MOTHER NOT “EXPOSE” THE CHILD TO ACTIVITIES NOT IN KEEPING WITH THE CHILD’S FAITH, WHICH IMPLICITLY REQUIRED THAT THE CHILD NOT BE “EXPOSED” TO MOTHER’S LGBTQ IDENTITY, IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the instruction that mother not “expose” the child to activities not in keeping with religious requirements during periods of her parental access was unenforceable. Mother identified as a member of the LGBTQ community, and considered herself an Orthodox Jew:

… [A] court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. “… ‘[I]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'” … . A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely” … . Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken … .

… [T]he challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access. … [T]he provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith has the same effect … . The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. … The defendant [father] was especially concerned that the child would be exposed to people involved in a “gay lifestyle” … . Such restrictions on a parent’s ability to “express oneself and live freely” go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights … . Weichman v Weichman, 2021 NY Slip Op 06211, Second Dept 11-10-21

 

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