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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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ON APPEAL, THE ATTORNEY FOR THE CHILD DID NOT FULFILL HIS OBLIGATION TO CONSULT WITH THE CHILDREN TO DETERMINE THEIR WISHES OR TO ADEQUATELY EXPLAIN WHY CONSULTATION WAS NOT POSSIBLE; HE WAS RELIEVED OF HIS ASSIGNMENT (THIRD DEPT).

The Third Department, relieving the attorney for the child (AFC) of responsibility for the appeal, determined the AFC did not fulfill his responsibilities under the Rules of the Chief Judge (22 NYCRR 7.2):

The Rules of the Chief Judge require that an AFC in a custody or visitation proceeding “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]; see 22 NYCRR 7.2 [c]), and further provide that, “[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” … . The Rules establish only two circumstances in which an AFC may adopt a position that does not reflect the child’s wishes — specifically, when he or she “is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . …

The AFC here wholly failed to fulfill the obligations imposed by these provisions upon this appeal. The only stated basis for his determination to advocate for the children’s best interests rather than for their wishes was their ages. However, it was the AFC’s obligation to “consult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities” … . At 10, the older child was certainly old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age, but also upon such individual considerations as her level of maturity and verbal abilities … . … Here, the AFC’s brief is devoid of any indication of the children’s wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child’s wishes … . …

Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal … . Matter of Jennifer VV. v Lawrence WW., 2020 NY Slip Op 02136, Third Dept 4-2-20

 

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JUDGE EXHIBITED BIAS AGAINST MOTHER AND INTERFERED EXCESSIVELY IN THE CUSTODY HEARING; NEW HEARING ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge was biased against mother and excessively interfered in the custody hearing:

The record of the proceedings supports the mother’s contention that the Family Court was biased against her, depriving her of a fair and impartial hearing. Although the mother’s claim of bias is not preserved for appellate review … . Here, the record demonstrates that the court predetermined the outcome of the case during the hearing and took an adversarial stance against the mother by, among other things, interjecting itself into the proceedings by cross-examining the mother on matters irrelevant to a determination of custody, including referring to the mother as “emotionally excessive” and inquiring as to how many online dating web sites the mother utilized at the time she met the father and as to when the mother and the father became intimate. The court also asked the mother, “so you were looking to start a relationship with someone?” and then commented, “And so you were married at the time?” Although the father was also married to someone when he began his relationship with the mother, no such questions or comments were directed to him by the court. The court’s inquiry of the mother exceeded 30 pages of transcript over the course of the two-day hearing. Although the court also questioned the father, the first inquiry related to setting up a parental access schedule for the father while the hearing was pending and the second set of inquiries appeared designed to elicit testimony from the father that was unfavorable to the mother, including one instance where the court intimated that the mother was practicing “extortion” against the father in order to gain an advantage in the proceedings … . Matter of Siegell v Iqbal, 2020 NY Slip Op 02084, Second Dept 3-25-20

 

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MOTHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE IN CIRCUMSTANCES TO JUSTIFY AWARDING HER SOLE CUSTODY OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined there was sufficient evidence of a change of circumstances to award mother sole custody of the children:

… [T]he Family Court’s determination, in effect, that there had been no change in circumstances requiring a transfer of legal custody to the mother and a modification of the father’s parental access lacks a sound and substantial basis in the record … . The record reflects that the children’s relationship with the father has deteriorated since the issuance of the custody order … , that the father had threatened to strike the children with a belt, and that the father denigrated the mother in the presence of the children … . Moreover, the children, who were 11 and 13 years old at the time of the hearing, indicated a strong preference to reside with the mother … . Matter of Georgiou-Ely v Ely, 2020 NY Slip Op 02049, Second Dept 3-25-20

 

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BECAUSE FATHER’S ATTORNEY APPEARED IN THE CUSTODY PROCEEDING FATHER WAS NOT IN DEFAULT AND THE ORDER WAS THEREFORE APPEALABLE (FOURTH DEPT).

The Fourth Department determined father was not in default because his attorney appeared. Therefore the custody order was appealable:

Petitioner father commenced this proceeding seeking to modify a prior order of custody that, inter alia, awarded sole legal and physical custody of the subject child to respondent mother. The father now appeals from an order that, inter alia, continued sole legal and physical custody of the subject child with the mother.

We agree with the father that Family Court erred in entering the order upon his default based on his failure to appear in court. The record establishes that the father “was represented by counsel, and we have previously determined that, [w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded” … . Matter of Williams v Richardson, 2020 NY Slip Op 01975, Fourth Dept 3-20-20

 

THERE IS NO LEGAL SUPPORT FOR A ‘TRI-PARENT’ ARRANGEMENT WHERE A FORMER SAME-SEX PARTNER OF MOTHER, MOTHER AND FATHER SHARE VISITATION AND CUSTODY OF THE CHILD (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, over a two-justice concurrence and a dissent, determined petitioner, the former same-sex partner of mother, did not have standing to seek custody and visitation of the child, despite mother’s support of the petition. The petitioner moved out of mother;s residence in 2010. Mother thereafter conceived a child with father. At first father wanted nothing to do with the child, but he has visited the child since 2014. Petitioner participated in the birth and naming of the child and assumed the role of a parent, but the romantic relationship with mother ended in 2012. Father opposed petitioner’s 2017 petition for custody and visitation. Mother did not want to terminate father’s rights. Family Court granted father’s motion to dismiss the petition. The Fourth Department affirmed finding no legal support for a “tri-parent” custody and visitation arrangement:

The wording of Domestic Relations Law § 70 (a) is clear and straightforward. It states that “either” parent may seek custody or visitation (id.). It is a well-settled principle of statutory construction that “[w]ords of ordinary import used in a statute are to be given their usual and commonly understood meaning” … . The common dictionary definition of “either” when used as an adjective has two senses, i.e., “being the one and the other of two” and “being the one or the other of two” … . In addition, when the Court of Appeals stated in Brooke S.B. that section 70 does not define the critical term “parent,” it added the following in a footnote: “We note that by the use of the term either,’ the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time” (Brooke S.B., 28 NY3d at 18 n 3). In our view, the clear wording of section 70 (a), which was expressly recognized by the Court of Appeals, precludes any relief to petitioner here because there are already two parents: the mother and the father. Under section 70 (a), there simply can be no more. We are therefore in agreement with the Third Department’s recent decision determining that to allow three parents to “simultaneously have standing to seek custody . . . does not comport with the holding in Matter of Brooke S.B.” (Matter of Shanna O. v James P., 176 AD3d 1334, 1335 [3d Dept 2019]). Matter of Tomeka N.H. v Jesus R., 2020 NY Slip Op 02015, Fourth Dept 3-20-20

Similar issue and result in Matter of Wlock v King, 2020 NY Slip Op 02019, Fourth Dept 3-20-20

 

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WHERE THERE IS A DISCREPANCY THE ORDER MUST BE CONFORMED WITH THE DECISION (FOURTH DEPT).

The Fourth Department noted a discrepancy between the decision and the order. Therefore the order was conformed to the decision:

… [W]e note that, in its bench decision, Family Court determined that the child ,,, was derivatively neglected. Inasmuch as there is a conflict between the decision and the order in appeal No. 1, that order must be conformed to the decision (… see generally CPLR 5019 [a]). We therefore modify the order … by vacating that part of the order determining that the child was derivatively abused and substituting therefor a determination that the child was derivatively neglected. Matter of Aaren F. (Amber S.), 2020 NY Slip Op 01739, Fourth Dept 3-13-20

 

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FAMILY COURT DID NOT MAKE THE REQUISITE FINDINGS IN THIS CUSTODY MATTER WHERE A GRANDPARENT WAS SEEKING CUSTODY, MATTER REMITTED; ASSUMING FAMILY COURT’S ORDER WAS NOT FINAL, THE NOTICE OF APPEAL WAS DEEMED AN APPLICATION FOR LEAVE TO APPEAL; THE DISSENT ARGUED THE ORDER IS NOT APPEALABLE (FOURTH DEPT).

The Fourth Department, remitting the matter, over a dissent, determined Family Court should not have the requisite findings in this custody matter where a grandparent was seeking custody. Family Court had ordered the parties to stipulate to the custody arrangement noting that , if the parties do not agree, a hearing would be held. The dissent argued the order was not final and therefore was not appealable. The majority, assuming the order was not final, deemed the notice of appeal to be an application for leave to appeal:

With respect to the merits of the mother’s contentions regarding the court’s award of joint custody to the father and the maternal grandmother, we conclude that the court failed to set forth “those facts upon which the rights and liabilities of the parties depend” … , specifically its analysis of whether extraordinary circumstances existed to warrant an inquiry into whether an award of joint custody to the maternal grandmother was in the best interests of the child. ” It is well established that, as 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 . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . Thus, we agree with the mother that the court erred in not determining whether extraordinary circumstances existed before awarding joint custody to the maternal grandmother. The maternal grandmother here had the burden of establishing extraordinary circumstances, which remains the case “whether the nonparent is seeking sole custody or joint custody with one of the parents” … .

We conclude that ” [t]he absence of the required findings precludes proper appellate review’ ” … . Matter of Steeno v Szydlowski, 2020 NY Slip Op 01808, Fourth Dept 3-13-20

 

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EXPERT WITNESSES CORROBORATED THE CHILD’S OUT-OF-COURT STATEMENTS IN THIS CHILD SEXUAL ABUSE CASE; THE PETITION, DISMISSED BY FAMILY COURT, REINSTATED AND A FINDING OF ABUSE MADE BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined that the child’s prior out-of-court statements should have been admitted in this child sexual abuse proceeding. The expert witnesses corroborated the child’s statements:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a …  out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . Although deference is to be given to the hearing court’s determinations as to credibility … , where that court’s credibility determination is not supported by the record, “this Court is free to make its own credibility assessments and overturn the determination of the hearing court” … .

Contrary to the Family Court’s determination, the testimony of the petitioner’s expert witnesses, including the validating expert witness … , provided sufficient corroboration of the subject child’s numerous and consistent out-of-court statements regarding the father’s sexual abuse of her, and together with the testimony of the petitioner’s caseworker, established by a preponderance of the evidence that the father sexually abused the child … . Further, the court failed to give sufficient consideration to the inconsistent and evasive nature of the father’s testimony … . Matter of Tazya B. (Curtis B.), 2020 NY Slip Op 01341, Second Dept 2-26-20

 

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