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INFANT PLAINTIFF, H.M., WAS INJURED BY HOT WATER IN THE SHOWER; THE PROPERTY OWNER WHO REPLACED THE WATER HEATER MAY BE LIABLE; THE FOSTER-CARE SERVICE WHICH PLACED H.M. IN THE HOME, HOWEVER, COULD NOT HAVE FORESEEN THE INCIDENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the property owner could be liable for injury to a child, H.M. caused by hot water in the shower. The defendant placement service (Leake) had placed H,M. in the foster care of defendant Butler who lived in a home owned by Alicea. Butler had turned on the shower and was picking up H.M.’s clothes when H.M. climbed into the tub. There was a question of fact whether the property owner, Alicea, was liable because of conflicting expert evidence about the danger posed by the temperature of the water. However, the incident was not foreseeable from the perspective of the placement agency (Leake). Therefore, Leake’s motion for summary judgment should have been granted:

… [T]here is an issue of fact as to whether [Alicea] created the dangerous hot water temperature when he replaced the home’s hot water heater prior to the accident. …

Leake demonstrated prima facie entitlement to summary judgment dismissing the negligent supervision claim against it because it established that it did not have “sufficiently specific knowledge or notice of the dangerous conduct which caused injury,” and “[t]he scalding hot bath water was an intervening act or event that is divorced from and not the foreseeable risk associated with. . .defendant’s alleged negligence” … . The excessively hot water was not the foreseeable risk associated with Leake’s alleged negligence in placing more than five children in the home, and the momentary inattention of Butler was not an act that should have been foreseeable by Leake in the exercise of reasonable care … . H.M. v City of New York, 2021 NY Slip Op 03376, First Dept 5-27-21

 

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FAMILY COURT PROPERLY CONSIDERED THE BEST INTERESTS OF THE TWO CHILDREN IN ITS PLACEMENT DECISION; STRONG TWO-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined Family Court properly considered the best interests of two children in deciding where the children should be place. The dissent disagreed. The decision is too detailed and fact-specific to fairly summarize here:

At its essence, this appeal presents a circumstance where everyone involved—the foster mother, the godmother, the attorney for the child, ACS, and the Family Court—agreed that the child and his half-sibling should be kept together. The court found that both the godmother’s home and the foster mother’s home were entirely suitable, but in choosing between the two, properly noted that the half-sibling’s father did not consent to the half-sibling being placed anywhere except with the godmother. The court’s consideration of that fact did not mean that the child’s best interests were not globally considered, but was instead a relevant and necessary fact that the court needed to take into account in determining how to best promote the child’s best interests and the obvious benefit to him of keeping the two half-siblings together as each other’s sole living, known, biological relatives. It was not error for the court to do so, and in fact, the court would have been derelict in its duties had it failed to do so. Matter of Adonnis M. (Kenyetta M.), 2021 NY Slip Op 03322, Second Dept 5-26-21

 

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FAMILY COURT SHOULD NOT HAVE ORDERED THE PARTIES TO EQUALLY SHARE THE COSTS OF FATHER’S SUPERVISED VISITATION WITHOUT EVALUATING THE PARTIES’ FINANCES (SECOND DEPT).

The Second Department determined Family Court properly found father had committed the family offense of harassment and properly ordered therapeutic supervised parental access for father. However, Family Court should not have order the parties to equally share the expense of supervised parental access without evaluating the parties’ ability  to pay:

The Family Court should not have directed the parties to equally share the costs of the father’s supervised parental access, without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit … . Accordingly, we remit the matter to the Family Court, Orange Country, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access. Matter of Livesey v Gulick, 2021 NY Slip Op 03321, Second Dept 5-26-21

 

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FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s ability to bring future custody petitions should not have been condition upon father’s undergoing counseling or treatment:

A court deciding a custody proceeding may “direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . “A court may not, however, order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights” … . Here, the Family Court erred in conditioning the filing of any future petitions by the father to modify parental access upon his successful completion of an anger management class and a negative drug test, and we modify the order so as to eliminate that condition. Matter of Hardy v Hardy. 2021 NY Slip Op 03320. Second Dept 5-26-21

 

IN A COMPLEX MARITAL-PROPERTY, MAINTENANCE AND CHILD-SUPPORT ANALYSIS TOO DETAILED AND COMPREHENSIVE TO SUMMARIZE HERE, THE COURT NOTED THAT, ABSENT A VOLUNTARY AGREEMENT, A PARENT MAY NOT BE DIRECTED TO SUPPORT A CHILD AFTER THE AGE OF 21 (SECOND DEPT).

The Second Department, in an extensive marital-property, maintenance and child-support decision too detailed and comprehensive to fairly summarize here, noted that a parent is not obligated to support a child over the age of 21:

The defendant … contends that the Supreme Court improperly directed him to pay basic child-support and add-on expenses for the child after she reaches the age of 21. A parent has no legal obligation to provide for or contribute to the support of a child over the age of 21 … . “In the absence of a voluntary agreement, a parent may not be directed to pay support or to contribute to the college education of a child who has attained the age of 21 years, and has no obligation to continue the support of a child after the child reaches the age of 21 years” … . Here, there was no voluntary agreement, and accordingly, the court should not have directed the defendant to pay basic child support and add-on expenses for the child after she reaches the age of 21. Sinnott v Sinnott, 2021 NY Slip Op 03073, Second Dept 5-12-21

 

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THE USUAL STRICT CRITERIA FOR VACATING A DEFAULT ORDER ARE RELAXED IN CHILD CUSTODY PROCEEDINGS; MOTHER’S MOTION TO VACATE THE DEFAULT ORDER AWARDING CUSTODY TO FATHER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the default order granting custody to father should have been granted. The usual strict criteria for a default order are relaxed in child custody matters:

The determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … . “A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense” … . However, “the law favors resolution on the merits in child custody proceedings,” and thus the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … . Matter of Williams v Worthington, 2021 NY Slip Op 03040, Second Dept 5-12-21

 

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NEW YORK DID NOT HAVE JURISDICTION OVER THE FLORIDA CHILD SUPPORT ORDER, EVEN THOUGH FATHER’S CHILD SUPPORT OBLIGATION HAD TERMINATED BY THE TERMS OF THE ORDER (SECOND DEPT).

The Second Department, reversing Family Court, determined Florida, which issued the child support order and where father resides, continued to have jurisdiction over the child support order, even though the child support obligation had terminated. Therefore the New York child support order was not a “de novo” order. Rather, it was a modification of the Florida order over which New York did not have jurisdiction:

After relocating to New York, the daughter applied for and began receiving public assistance in Nassau County. In July 2019, the Nassau County Department of Social Services (hereinafter DSS) filed the instant petition for support on behalf of the daughter. At a hearing on the petition before a support magistrate, the father moved to dismiss the petition for lack of subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act (hereinafter UIFSA), arguing that Florida retained exclusive jurisdiction over his child support obligation to the daughter, and that under Florida law, his obligation to support the daughter ceased when she turned 18. The Support Magistrate denied the motion, finding that the subject application was not seeking to modify the father’s existing child support obligation in Florida, but, instead, was a de novo application for support. …

“Under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” ( … cf. Family Ct Act § 580-205). “Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction” … . …

Since the father still resides in Florida, that state has continuing, exclusive jurisdiction of the child support order, despite the termination of his obligations under that order, and New York does not have subject matter jurisdiction to modify that order … . Matter of Nassau County Dept. of Social Servs. v Ablog, 2021 NY Slip Op 03035, Second Dept 5-12-21

 

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FATHER’S MOTION TO VACATE THE DEFAULT ORDER TERMINATING HIS PARENTAL RIGHTS SHOULD HAVE BEEN GRANTED; FATHER ATTEMPTED TO ATTEND THE HEARING, BUT WAS LATE; FATHER WAS ENTITLED TO COUNSEL BUT NONE HAD BEEN ASSIGNED; AND THERE WAS EVIDENCE HE DID NOT ABANDON THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the default order terminating his parental rights should have been granted. Father had appeared on the day of the hearing but it had concluded. In addition father was entitled to counsel and there was evidence father had not abandoned the child:

A parent seeking to vacate an order entered upon their default in a termination of parental rights proceeding must establish a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition (see CPLR 5015[a][1] …).

Here, the father presented a reasonable excuse for his failure to timely appear at the May 28, 2019 fact-finding hearing. The father did in fact appear in court on the hearing date, but the proceedings had already concluded. This was the father’s first appearance in the proceeding, and there is no indication that the father was notified by the Family Court or counsel of the hearing … . Indeed, the father was unrepresented by counsel at that time, and claims that he was not offered assigned counsel on May 28, 2019. The father had a right to the assistance of counsel in this proceeding, in which he faced a potential termination of his parental rights … . Parental rights may not be curtailed without a meaningful opportunity to be heard, which includes the assistance of counsel … .

… Social Services Law § 384-b(5)(a) provides that “a child is ‘abandoned’ by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency.” Abandonment must be proven by clear and convincing evidence … . Termination of parental rights is authorized by Social Services Law § 384-b(4)(b) when the parent abandoned the child for a period of six months immediately prior to the date of the filing of the petition. Here, the father’s allegations regarding his attempts to contact the agency and visit with the child potentially extend into the relevant six-month period prior to the October 2018 petition. Matter of Jonathan N., Jr. (Jonathan N., Sr.), 2021 NY Slip Op 03034, Second Dept 5-12-21

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Family Court, determined the court should have made findings which would allow the subject child to apply for special immigrant juvenile states (SIJS);

The Family Court erred in failing to make the specific finding that reunification with the father is not viable due to abandonment. Based upon our independent factual review, the record supports the requisite finding that reunification with the child’s father is not viable due to parental abandonment … . The record demonstrates that even though the child’s father knew where he lived, the father never visited him. The child has never met his father, his father has never supported him and has never sent gifts or cards, and his father’s whereabouts are unknown.

Moreover, the record supports a finding that it would not be in the best interests of the child to be returned to Nicaragua, his previous country of nationality and last habitual residence, as there is no one to care for him or protect him in that country … . The record reflects that it would not be in the child’s best interests to return to Nicaragua as he would be separated from his mother who has consistently cared for and supported him. In Nicaragua, there is no one who can care for him or support him; as previously set forth, his father has abandoned him. The child’s maternal grandparents, with whom he lived after his mother left Nicaragua, are elderly and began to struggle to care for him and protect him. Moreover, the child faces harm from gang violence in Nicaragua, having been threatened by gang members and been kidnapped by them once for approximately eight days. Matter of Rosa M. M.-G. v Dimas A., 2021 NY Slip Op 03033, Second Dept 5-12-21

 

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FAMILY COURT SHOULD NOT HAVE FOUND NEW YORK DID NOT HAVE JURISDICTION OVER THIS CUSTODY DISPUTE WITHOUT HOLDING A HEARING PURSUANT TO THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT TO DETERMINE WHETHER NEW YORK OR YEMEN WAS THE CHILDREN’S HOME STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have found New York did not have jurisdiction over this custody dispute without holding a hearing pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The issue is whether New York or Yemen was the children’s home state:

Pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award . . . custody of such child to either parent.” Here, since the children reside outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A; hereinafter UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a] …). The UCCJEA defines “home state” as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]).

Here, the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there are disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen … . Matter of Kassim v Al-Maliki, 2021 NY Slip Op 02800, Second Dept 5-5-21

 

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