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THE GENETIC MARKER TESTING TO ESTABLISH PATERNITY SHOULD NOT HAVE BEEN ORDERED IN THE ABSENCE OF A HEARING TO DETERMINE THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department. reversing Family Court, determined genetic marker testing to establish paternity should not have ordered without holding a hearing to determine if the testing is in the best interests of the child:

We agree with the mother that the court erred in ordering genetic marker testing without first holding a hearing to determine whether testing was in the best interests of the child. It is undisputed that, at the time of the child’s birth, respondents were married to one another, and respondents alleged that they had access to each other during the relevant time frame such that the presumption of legitimacy would apply. Although the court has the authority to order genetic marker and DNA testing in order to establish paternity, “[n]o such test shall be ordered . . . upon a written finding by the court that it is not in the best interests of the child on the basis of . . . the presumption of legitimacy of a child born to a married woman” … . On this record, “[t]here was insufficient evidence before the court to determine the child’s best interests,” and we thus conclude that, before ordering the genetic marker test, the court should have conducted a hearing to determine whether it was in the best interests of the child to do so, based on the presumption of legitimacy … . Matter of Kirk M.B. v Rachel S., 2021 NY Slip Op 01602, Fourth Dept 3-19-21

 

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FAILURE TO TIMELY FILE THE OBJECTIONS TO THE SUPPORT MAGISTRATE’S DETERMINATION DID NOT WARRANT DISMISSAL OF THE OBJECTIONS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined that the failure to time file proof of service of respondent’s objections to the determination of the Support Magistrate did not warrant dismissal of the objections:

Family Court Act § 439 (e) provides that a party filing objections to the determination of the Support Magistrate must serve those objections upon the opposing party, and that proof of service “shall be filed with the court at the time of filing of objections.” Here, the record indicates that respondent timely filed his objections and served a copy of those objections upon petitioner on the same day, but respondent failed to file proof of service with Family Court until two days later.

Under the particular circumstances of this case, we substitute our discretion for that of Family Court and conclude that dismissal of respondent’s objections is not warranted … . Although respondent failed to comply with the statutory deadline for filing proof of service, ” ‘[s]trict adherence to this deadline is not required,’ ” and courts have ” ‘discretion to overlook a minor failure to comply with the statutory requirement’ ” … . Here, there is no dispute that petitioner was not prejudiced by the late filing inasmuch as she was served with a copy of respondent’s objections within the statutory time period (see Family Ct Act § 439 [e]). Indeed, the record shows that petitioner filed a rebuttal to respondent’s objections. Matter of Sigourney v Santaro, 2021 NY Slip Op 01591, Fourth Dept 3-19-21

 

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PETITIONER DID NOT DEMONSTRATE THE NEGLECT PETITION WAS PROPERLY MAILED TO MOTHER AND MOTHER PRESENTED EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT; A HEARING ON WHETHER MOTHER WAS PROPERLY SERVED IS REQUIRED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a hearing on whether mother was properly served with the neglect petition was necessary:

… [P]etitioner failed in the first instance to establish that the documents were mailed to the mother’s ” ‘last known address’ ” inasmuch as “[t]he affidavit of service says that the [papers] were mailed [by prepaid, first class mail] . . . , without identifying th[e] address” to which they were mailed … . In any event, even assuming, arguendo, that the process server’s affidavit was sufficient to create the presumption of valid service, we conclude that the mother’s submissions were sufficient to rebut that presumption.

The mother’s attorney submitted an affidavit from his legal assistant establishing that the person who accepted service mistakenly thought the papers were for his daughter, who shared the same first name as the mother. That person also informed the legal assistant that the mother had never resided at that address and that the mother’s father, with whom petitioner believed the mother was residing, “had moved out of the home months earlier.” We thus conclude that the mother rebutted any presumption that she was properly served at her “actual place of business, dwelling place or usual place of abode so as to satisfy the requirements of CPLR 308 (2) [or (4)]” … . Additionally, we note that petitioner’s own submissions in the application for an order of substituted service raise a question whether the mother ever resided at the address listed in the affidavit of service inasmuch as that address was not among the numerous identified addresses for her. Matter of William A. (Jessica F.), 2021 NY Slip Op 01580, Fourth Dept 3-19-21

 

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FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT MAKING A DETERMINATION ON THE MERITS, MATTER REMITTED; THE USUAL PROOF REQUIREMENTS FOR AWARDING CUSTODY TO A NONPARENT DO NOT APPLY TO A TEMPORARY PLACEMENT WITH A NONPARENT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined father’s petition for modification of custody should not have been dismissed as moot without making a determination of the merits. The court noted that the usual requirements for awarding custody to a nonparent did not apply to the maternal aunt in this case because she did not petition for custody and the children were merely placed with her temporarily:

The father initially filed a petition for modification of custody and visitation against the mother, seeking primary residential custody of their three children. Petitioner Genesee County Department of Social Services then commenced a neglect proceeding against the mother, and the mother consented to the entry of orders finding the subject children to be neglected children. Family Court held a joint hearing regarding the neglect petition and the father’s custody petition … , after which the court placed the children with their maternal aunt with the mother’s consent but over the father’s objection, and dismissed the father’s custody petition as moot.

… [W]e agree with the father that the court erred in dismissing his petition for modification of custody and visitation as moot without making a determination on the merits of his petition pursuant to Family Court Act article 6 … . We further agree with the father that, ” ‘[a]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Nevertheless, on the facts of this case, we conclude that the maternal aunt did not have the burden of making a showing of extraordinary circumstances inasmuch as she did not file a petition in this matter and was not awarded custody of the children, but rather the children were placed with her for the pendency of the article 10 proceeding pursuant to Family Court Act § 1017 … . Matter of Michael J.M. v Lisa M.H., 2021 NY Slip Op 01573, Fourth Dept 3-19-21

 

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RESPONDENT JUVENILE WAS DENIED HER RIGHT TO A SPEEDY TRIAL IN THIS JUVENILE DELINQUENCY PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent juvenile was denied her right to a speedy trial in this juvenile delinquency proceeding. The respondent initially waived her speedy trial rights to allow a diagnostic evaluation, which would take 90 days. Before the evaluation was complete, in response to allegations that respondent was acting aggressively in the nonsecure facility where she was detained, Family Court ordered respondent to a secure facility, thereby making the diagnostic evaluation impossible. At that point respondent rescinded her speedy trial waiver:

… [A]lthough respondent waived her right to a speedy fact-finding hearing during the first appearance held on April 4, 2019, the waiver was expressly limited to the time necessary to complete the diagnostic evaluation. By entering an order on June 26, 2019 directing respondent’s transfer from Elmcrest Children’s Center to a secure facility, Family Court knowingly eliminated the possibility that the diagnostic evaluation would be continued and completed. Under such circumstances, respondent’s waiver of her speedy trial rights effectively expired on June 26, 2019. Consequently, Family Court should have commenced a fact-finding hearing within three days of June 26, 2019 or, alternatively, brought the parties before it and either obtained a further waiver of respondent’s speedy trial rights or set forth on the record its reasons for adjourning the fact-finding hearing beyond the prescribed three-day period … . Inasmuch as Family Court failed to do any of the foregoing and instead did not commence the fact-finding hearing until August 15, 2019, some 50 days after the expiration of respondent’s speedy trial waiver, we find that Family Court violated respondent’s right to a speedy fact-finding hearing … . Matter of Erika UU., 2021 NY Slip Op 01543, Third Dept 3-18-21

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE MOTHER’S PARENTAL ACCESS; THE JUDGE LEFT IT TO MOTHER AND HER CHILD TO DETERMINE MOTHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not not have left it to mother and her child to determine when mother will have parental access. The child lives with stepmother who is married to father. Father, who is incarcerated, did not want mother to have parental access:

“A court may not delegate its authority to determine parental access to either a parent or a child” … . “While a child’s views are to be considered in determining custody or parental access, they are not determinative” … . Moreover, “[a]n access provision which is conditioned on the desires of [a] child[ ] tends to defeat the right of parental access” … .

Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditions the mother’s parental access on the child’s wishes and leaves the determination as to whether there should be any parental access at all to the child. Moreover, the Family Court’s directive as to parental access creates the potential for influence upon the child, since the stepmother, with whom he lives, is married to the father, who is opposed to the mother having any parental access with the child. Thus, the court’s directive as to parental access must be set aside … . Matter of Clezidor v Lexune, 2021 NY Slip Op 01409, Second Dept 3-10-21

 

THE PETITION SEEKING TO TERMINATE FATHER’S PARENTAL RIGHTS, WITH THE GOAL OF FREEING THE CHILD FOR ADOPTION, AND THE CONCURRENT PERMANENCY PLAN TO RETURN THE CHILD TO THE CUSTODY OF MOTHER, HAD CONFLICTING END GOALS; THE PETITION TO TERMINATE FATHER’S PARENTAL RIGHTS SHOULD THEREFORE HAVE BEEN DIMSISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the end goals of two concurrent proceedings were contradictory and therefore the petition to terminate father’s parental rights should have been dismissed. The abandonment/termination of parental rights petition, which sought to free the child for adoption, was brought in the face of a permanency plan which sought to return the child to the custody of mother:

Respondent [father] contends that the abandonment proceeding, seeking to terminate his parental rights, was improperly brought against him as the permanency plan in place at the time of the hearing with respect to the mother was to return the child to the mother. We agree. … The statutory purpose of an abandonment proceeding is to free the child for adoption by terminating the parents’ rights to the child. Because this proceeding sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, it did not serve that purpose. In circumstances such as this, dismissal of the petition is mandated … . Matter of Xavier XX. (Godfrey YY.), 2021 NY Slip Op 01295, Third Dept 3-4-21

 

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PLAINTIFF HUSBAND IN THIS DIVORCE ACTION INSTALLED SPYWARE WHICH INTERCEPTED DEFENDANT WIFE’S PHONE CALLS AND THEN DESTROYED THE CONTENTS OF THE INTERCEPTION; THE INTERCEPTION VIOLATED DEFENDANT WIFE’S ATTORNEY-CLIENT PRIVILEGE; SANCTIONS FOR SPOLIATION OF EVIDENCE PROPERLY INCLUDED STRIKING THE CAUSES OF ACTION FOR SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION AND ATTORNEY’S FEES (SECOND DEPT).

The Second Department determined plaintiff husband in this divorce action was properly sanctioned for spoliation of evidence by striking from the complaint the causes of action seeking spousal support, equitable distribution and attorney’s fees. The husband had installed spyware which allowed interception of defendant wife’s phone calls. Evidence of what was intercepted was destroyed. It was assumed that the interceptions violated defendant wife’s attorney-client privilege:

… Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable … the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. “Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” … . … ” …  Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” … . C.C. v A.R., 2021 NY Slip Op 01243, Second Dept 3-3-21

 

FATHER PROPERLY FOUND TO HAVE SEVERELY ABUSED ALL THE CHILDREN IN THE HOME; DESPITE THE WORDING OF THE SEVERE ABUSE STATUTE, WHICH USES THE TERM “PARENT,” THE COVERAGE OF THE STATUTE IS NOT LIMITED TO BIOLOGICAL CHILDREN (THIRD DEPT).

The Third Department, on February 23, 2021, vacated and replaced the opinion in this case which was originally released on February 18, 2021. In the vacated opinion the court held father could not be deemed to have severely abused the children who were not his biological children because the severe abuse statute uses the term “parent.” However, in the replacement opinion, the court ruled father was properly found to have severely abused all of the children in the home. Father was present when mother severely beat her daughter, who subsequently died:

With respect to the father, although he is only the biological father of the younger daughter and the younger son, he lived with and had been in a relationship with the mother for approximately five years and, in his statement to police, referred to the all of the children in the home as “[o]ur kids.” The older daughter and the older son, moreover, refer to him as “dad” and there is no dispute that he was a person legally responsible for the subject children’s care at all relevant times (see Family Ct Act §§ 1012 [a]; 1051 [e]). Thus, as the deceased child’s brutal beating occurred while the father was present in the downstairs of the home, at a time when the mother’s yelling and the deceased child’s screaming could be heard throughout the house, we are satisfied that the father’s conduct in failing to intervene or otherwise take any action to provide the deceased child with life-saving medical care satisfied the elements of severe abuse as against her (see Social Services Law § 384-b [8] [a] [i]; Family Ct Act § 1051 [e] … ). The father’s conduct also evinced “such an impaired level of parental judgment as to create a substantial risk of harm for any child in [his] care” … . Accordingly, we discern no reason to disturb Family Court’s finding that the father derivatively severely abused the four surviving children … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01155, Third Dept 2-18-21

 

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ALTHOUGH FATHER WAS CULPABLE IN THE SEVERE BEATING BY MOTHER AND THE SUBSEQUENT DEATH OF THE CHILD, THE SEVERE ABUSE STATUTE APPLIES ONLY TO “PARENTS” AS OPPOSED TO “PERSONS LEGALLY RESPONSIBLE;” BECAUSE FATHER WAS NOT THE BIOLOGICAL FATHER OF THE CHILD BEATEN BY MOTHER, THE SEVERE ABUSE ADJUDICATION WAS REVERSED (THIRD DEPT).

ON FEBRUARY 23, 2021, THIS OPINION WAS VACATED AND THE SEVERE ABUSE FINDINGS AGAINST FATHER WERE UPHELD FOR ALL FOUR CHILDREN, NOT JUST FATHER’S BIOLOGICAL CHILDREN. REVISED DECISION-SUMMARY TO FOLLOW.

The Third Department, in a full-fledged opinion by Justice Egan, reversing the severe abuse and derivative severe abuse adjudications against the father regarding mother’s biological children, otherwise affirmed the abuse and severe abuse and derivative abuse and derivative severe abuse adjudications, The severe abuse statute, unlike the abuse statute, permits only a finding against a parent (as opposed to a person legally responsible for the child). Because father was not the biological father of the child who died after a severe beating by mother, the severe abuse statute did not apply:

… [W]ith respect to Family Court’s determination that the father severely abused the deceased child and derivatively severely abused the older daughter and the older son, we are reluctantly constrained to reverse said findings. As this Court has previously made clear, and as petitioner and the attorney for the child concede, unlike findings of abuse and neglect, which may be made against “any parent or other person legally responsible for a child’s care” (Family Ct Act § 1012 [a] …), the current statutory language contained in Social Services Law § 384-b (8) (a) (i) only permits a finding of severe abuse to be made against a child’s “parent” … . Although we are satisfied that the evidence at the fact-finding hearing demonstrates, by clear and convincing evidence, that the father’s failure to intervene to stop the brutal beating of the deceased child or thereafter take any action to provide her with life-saving medical care would otherwise satisfy the elements of severe abuse as against her … and, consequently, derivative severe abuse as against the older daughter and the older son … , because he is not the biological father of these children, Family Court was statutorily precluded from rendering such findings and we, therefore, are constrained to reverse same … . Matter of Lazeria F. (Paris H.), 2021 NY Slip Op 01096, Third Dept 2-18-21

 

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