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THE SUPPORT MAGISTRATE SHOULD HAVE INQUIRED FURTHER WHEN FATHER SAID HE WISHED TO HAVE AN ATTORNEY BUT COULD NOT AFFORD ONE; THE SUPPORT MAGISTRATE TOLD FATHER HE WAS NOT ENTITLED TO APPOINTED COUNSEL BECAUSE HE WAS WORKING; FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court, determined the Support Magistrate should have inquired further when father said he wanted an attorney but could not afford one. The Support Magistrate told father he was not entitled to an appointed attorney because he was employed:

The Support Magistrate should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses because the father expressed a desire to have an attorney appointed … . Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel … . Here, despite the father’s statements at the pretrial appearance that he could not afford to hire private counsel and would like to have an attorney appointed, the Support Magistrate adjourned the matter for a hearing. Under these circumstances, the father was deprived of his right to counsel and reversal is required … . Matter of Goodine v Evans, 2020 NY Slip Op 02668, Second Dept 5-6-20

 

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DENIAL OF FATHER’S PETITION FOR CUSTODY WAS NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, held that the denial of father’s petition for a change in custody (from mother to father) was not supported by the evidence:

Here, the only factor that weighs in favor of respondent mother is the existing custody arrangement, which had been in place for a lengthy period of time … . Although the subject child has a brother at the mother’s house, that is not a factor that favors the mother because “both parties have other children, [and thus] an award of [primary residential] custody to either party would necessarily separate the child at issue from some of her siblings” … .

The remaining factors favor awarding primary residential custody to the father. During the time that the mother had primary residential custody, the child performed poorly at school and experienced a significant increase in her depression … . Additionally, due to the mother’s work schedule, the child was required to arise before 5:00 a.m. and to thereafter be taken to a relative’s house, where the child stayed for two hours before going to school. Also, the mother is admittedly unable to assist the child with school work, or to schedule or attend the child’s medical and mental health counseling appointments. The father, in contrast, is able to provide a more stable home for the child and is currently helping the child with those measures.

Furthermore, the child expressed a desire to reside with the father. Although the “[c]ourt is . . . not required to abide by the wishes of a child to the exclusion of other factors in the best interests analysis” … , we conclude that “the wishes of the [14]-year-old child are . . . entitled to great weight where, as here, the age and maturity [of the child] would make [her] input particularly meaningful” … . In addition, although the position of the AFC is not determinative, it is a factor to be considered … , and the AFC here has supported the child’s wish to live with the father both in Family Court and on appeal. Matter of Alwardt v Connolly, 2020 NY Slip Op 02574, Fourth Dept 5-1-20

 

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FATHER WAS DENIED DUE PROCESS WHEN THE COURT TOOK SIX MONTHS TO HOLD A POST-DISPOSITIONAL HEARING AFTER A FAILED TRIAL DISCHARGE OF THE CHILDREN TO FATHER; THE CHILDREN WERE FINALLY RETURNED TO FATHER AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that father was entitled to an expedited post-dispositional hearing after the children were removed from the father’s custody based upon a failed trial discharge. The children were eventually returned to father, but the hearing took six months and the children were not returned to father until eight months after the decision was issued. The First Department ruled on the appeal as an exception to the mootness doctrine, finding that this situation was likely to recur. The court held that father was entitled to an “expedited hearing” after the children were removed under due process principles:

We find that a parent’s private interest in having custody of his or her children, the children’s private interest in residing with their parent, and the undisputed harm to these interests are factors that merit equal consideration. On this record, ACS [Administration for Children’s Services]  fails to establish that the lengthy delay was related to its interest in protecting the children. Rather, the hearing was prolonged over six months because of the court’s and attorneys’ scheduling conflicts. There is no indication that the completion of the hearing was caused by difficult legal issues, or by the need to obtain elusive evidence, or by some other factor related to an accurate assessment of the best interest of the children … .

Even though this is a post-dispositional matter, the father is entitled to the strict due process safeguards afforded in neglect proceedings. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State” … . This rationale equally applies to the primacy of a parent’s fundamental liberty interest, and the importance of procedural due process in protecting that interest, particularly when a parent and child are physically separated … . Accordingly, we find that a parent is entitled to a prompt hearing on the agency’s determination to remove the children from his or her physical custody through a failed trial discharge. Matter of F.W. (Monroe W.), 2020 NY Slip Op 02385, First Dept 4-23-20

 

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EVIDENCE OF DOMESTIC VIOLENCE AND MARIJUANA USE WAS NOT SUFFICIENT TO FIND THAT FATHER NEGLECTED THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the neglect finding against father based upon domestic violence and marijuana use:

… ” [A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence'”… . However, “exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment” … . Here, we agree with the father’s contention that, with respect to that allegation, the preponderance of the evidence did not establish that he neglected the child … .

The father contends, and ACS [Administration of Children’s Services] concedes, that the evidence of the father’s use of marijuana was insufficient to establish that the child was neglected. We agree. The evidence failed to demonstrate that the father’s marijuana use caused impairment, or an imminent danger of impairment, to the physical, mental, or emotional well-being of the child … . Matter of Simone C.P. (Jeffry F.P.), 2020 NY Slip Op 02270, Second Dept 4-9-20

 

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PETITIONER HAD THE BURDEN TO PROVE RESPONDENT WAS SERVED; THE SUPPORT MAGISTRATE REVERSED THE BURDEN OF PROOF; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined the Support Magistrate did not apply the correct standard to whether respondent (father) was served with the petition seeking an order of filiation and child support. The burden of proof of proper service was on mother:

The Support Magistrate did not apply the correct standard in weighing the evidence adduced at the hearing. “It is well established that it is the plaintiff [or the petitioner] who bears the ultimate burden of proving by preponderating evidence that jurisdiction over the defendant [or the respondent] was obtained” … . The plaintiff or the petitioner may sustain that burden, inter alia, by introducing the affidavit of service and the testimony of the process server, or evidence demonstrating that the process server is unavailable or that diligent efforts were made to locate the process server to no avail … . Here, the mother, as the party who commenced this proceeding, was the party who bore the burden of proving that jurisdiction was obtained over the father. At the conclusion of the hearing, however, the Support Magistrate denied that branch of the father’s motion which was pursuant to CPLR 5015(a)(4) to vacate the order of support, finding that he failed to credibly meet his burden of proving that he was not served with the petition … . Matter of Kathleen T.K. v Eric C.S., 2020 NY Slip Op 02266, Second Dept 4-9-20

 

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FAMILY COURT SHOULD HAVE REOPENED THE NEGLECT HEARING WHEN MOTHER ARRIVED AT COURT SHORTLY AFTER SUMMATIONS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have reopened the neglect hearing when mother arrived just after summations:

The Family Court conducted a fact-finding hearing over the course of several days, during which the mother was present, and the maternal grandmother and a DSS caseworker testified. On the fifth day of the hearing, the mother was late in arriving to court because she allegedly was traveling by bus from Georgia to New York, and the bus was delayed. The mother’s counsel notified the court of the mother’s transportation issue, and of her intention to testify, and requested an adjournment. The court denied the adjournment request and directed that the hearing proceed as scheduled. The mother arrived shortly after summations, but the court did not reopen the hearing to afford the mother the opportunity to testify.

Following the hearing, the Family Court found that the mother neglected the child. …

A finding of neglect constitutes “a permanent and significant stigma” which might indirectly affect the mother’s status in future proceedings … . The Family Court has the authority to reopen a Family Court Act article 10 proceeding to allow a party to present additional testimony at a fact-finding hearing … .

Under the circumstances of this case, the Family Court should have exercised its discretion to reopen the fact-finding hearing to afford the mother the opportunity to present her case. Matter of Katie P.H. (Latoya M.), 2020 NY Slip Op 02265, Second Dept 4-9-20

 

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BECAUSE MOTHER’S ATTORNEY APPEARED MOTHER WAS NOT IN DEFAULT; FAMILY COURT’S REFUSAL TO ADMIT DOCUMENTARY EVIDENCE OFFERED BY MOTHER’S ATTORNEY DEPRIVED MOTHER OF DUE PROCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was not in default because her attorney appeared and the court’s refusing to admit documentary evidence offered by mother’s attorney deprived mother of her right to due process of law:

The mother failed to appear … when continued fact-finding on the permanent neglect petition was scheduled, and an adjournment was granted. When the mother failed to appear on the next hearing date, … the mother’s counsel stated that she would be participating in the proceeding on the mother’s behalf and sought to admit into evidence certain documents. … [T]he mother was, therefore, not in default with respect to the fact-finding hearing … .

The Family Court’s refusal to permit the mother’s counsel to admit into evidence the documentary evidence on behalf of the mother based upon the mother’s failure to appear … , violated the mother’s right to due process. ” A parent has a right to be heard on matters concerning her [or his] child and the parent’s rights are not to be disregarded absent a convincing showing of waiver'” … . Matter of Amira W.H. (Tamara T.H.), 2020 NY Slip Op 02264, Second Dept 4-9-20

 

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FATHER SHOULD NOT HAVE BEEN DIRECTED TO COMPLY WITH THE ‘CULTURAL NORMS’ OF HASIDIC JUDAISM WHEN THE CHILDREN STAY WITH HIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined father should not have been directed to comply with the “cultural norms” of Hasidic Judaism when the children stay with him:

We agree with the father that, by directing him to comply with the “cultural norms” of Hasidic Judaism during his periods of parental access, the Supreme Court ran afoul of constitutional limitations by compelling the father to himself practice a religion, rather than merely directing him to provide the children with a religious upbringing (see Cohen v Cohen, 177 AD3d at 852; Weisberger v Weisberger, 154 AD3d at 53). While the court referred to the “cultural norms” by which the children were raised, the testimony at the hearing made clear that the “cultural norms” referenced were that each parent would comply with the religious requirements of Hasidic Judaism. Under this Court’s decisions in Weisberger and on the prior appeal, the court’s directive that the father himself comply with these religious practices was an unconstitutional modification of the religious upbringing provision in the judgment of divorce, which must be reversed … . Cohen v Cohen, 2020 NY Slip Op 02263, First Dept 4-9-20

 

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ATTORNEY FOR THE CHILD PROPERLY ALLOWED TO ADOPT THE NEGLECT PETITION AFTER THE PETITIONER REQUESTED THE WITHDRAWAL OF THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court, determined the attorney for the child (AFC) was properly allowed to proceed with the neglect petition after the petitioner requested to withdraw the petition. However the evidence of educational and medical neglect was insufficient:

… [W]e perceive no error or abuse of discretion in Family Court declining to dismiss the petitions and allowing the attorney for the children to adopt the petitions and proceed on them (see Family Ct Act § 1032 [b] …). Turning to the merits, as relevant here, a party seeking to establish neglect must prove, by a preponderance of the evidence, that a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying [him or her] with adequate . . . education in accordance with the provisions of part one of article [65] of the [E]ducation [L]aw, or medical . . . care, though financially able to do so or offered financial or other reasonable means to do so” … . Matter of Abel XX. (Jennifer XX.), 2020 NY Slip Op 02129, Third Dept 4-2-20

 

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DENYING VISITATION TO MOTHER WHO HAD NOT SEEN THE CHILD IN NINE YEARS BUT HAD GAINED EMPLOYMENT AND STOPPED ABUSING DRUGS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE; FAMILY COURT GAVE UNDUE WEIGHT TO THE FORENSIC EVALUATOR’S FINDINGS AND TO MOTHER’S EMOTIONAL OUTBURSTS AT THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the denial of visitation to mother in this modification-of-visitation proceeding was not supported by the evidence. Mother had not seen the child in nine years but demonstrated she was employed and had stopped abusing drugs. Family Court gave undue weight to the findings of a forensic evaluator and to mother’s emotional state during the hearing:

In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.In our view, the forensic evaluator essentially acquiesced to the father’s preferences that the child have no contact with the mother and, in effect, gave them a higher priority over any court directive. Any unwillingness by the father to facilitate visitation does not demonstrate that the child’s welfare would be placed in harm if visitation between the mother and the child occurred and in no way rebuts the presumption that visitation with the mother is in the best interests of the child. In view of the flaws in the forensic evaluator’s report, it should have been given minimal consideration.

Family Court also found that the mother could not control her emotions during the trial. Although we do not discount a parent’s emotional stability as one factor in the best interests analysis, there was little evidence, if any, indicating that the mother displayed the same emotional outbursts either with the children that she had just regained custody of or outside the courtroom setting. Accordingly, under the circumstances of this case, any inability of the mother to control her emotions at the hearing has little relevance … . Matter of Jessica D. v Michael E., 2020 NY Slip Op 02133, Third Dept 4-2-20

 

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