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DEFAULT IN THIS NEGLECT/CUSTODY PROCEEDING SHOULD HAVE BEEN ANALYZED UNDER FAMILY COURT ACT 1042, NOT CPLR 5015 AND 5511; BECAUSE RESPONDENT WAS NEVER NOTIFIED THAT A FACT-FINDING HEARING, AS OPPOSED TO A CONFERENCE, WAS GOING TO BE HELD THE DEFAULT ORDER SHOULD HAVE BEEN VACATED (THIRD DEPT).

The Third Department, reversing Family Court, determined: (1) the proper analysis of a default in this neglect/custody proceeding is under Family Court Act 1042, not CPLR 5015 and 5511; (2) respondent was never notified of the fact-finding; and (3) the default order must be vacated:

To begin, although Family Court and the parties assessed whether respondent was entitled to vacatur under “the default mechanism of CPLR 5015 and 5511,” the standard set forth by Family Ct Act § 1042 controls in this Family Ct Act article 10 proceeding … .. If a “person legally responsible for the child’s care” has been notified of a pending fact-finding hearing and fails to attend … . Family Court is free to conduct the hearing so long as the child is represented by counsel … . Respondent is such a person and, upon her timely motion to vacate the fact-finding order, Family Court was obliged to grant vacatur and reopen the hearing if she showed “a meritorious defense to the petition . . . [unless she] willfully refused to appear at the hearing” … . …

It was an impossibility for respondent to default in attending a hearing that she did not know was going to happen and did not, in fact, happen. Respondent was further unable to challenge details of petitioner’s evidence in the absence of a hearing and, the strength of petitioner’s proof remaining a mystery, we deem the denials in respondent’s affidavit sufficient to set forth a meritorious defense. Matter of Lila JJ. (Danelle KK.), 2020 NY Slip Op 01216, Third Dept 2-20-20

 

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NEW YORK SHOULD NOT HAVE BEEN RULED AN INCONVENIENT FORUM FOR THIS VISITATION/CONTACT ENFORCEMENT PROCEEDING, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have ruled that New York was an inconvenient forum for a visitation/contact enforcement petition where mother is in New York and father is in Arizona with the child:

As Family Court acknowledged, it had exclusive continuing jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act … . However, “[a] court of this state which has jurisdiction under this article . . . may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum” … .

An inconvenient forum determination “depends on the specific issues to be decided in the pending litigation” … . This is an enforcement petition, and the sole issue concerns the conduct of the parents vis-À-vis the current order. The vast amount of testimony as to whether the father violated the order, which is central to the issue in this proceeding, will come from the mother, who is located in New York, and any witnesses that she may call. Any testimony from the father can be presented by telephone, audiovisual means or other electronic means. Moreover, Family Court has presided over numerous proceedings between the parties related to this child … .That court is far more familiar with the case than the Arizona court and is in a better position to interpret the meaning of its own order … .

Additionally, the mother submitted an affidavit evidencing that she will not be able to travel to or retain counsel in Arizona, yet she has legal representation in New York. Family Court acknowledged her indigency and that it was unable to conclude whether Arizona could provide indigent legal representation to her. Matter of Sadie HH. v Darrin II., 2020 NY Slip Op 01219, Third Dept 2-20-20

 

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FATHER’S INCARCERATION CONSTITUTED A CHANGE IN CIRCUMSTANCES RE FATHER’S VISITATION/CONTACT PETITIONS; HEARING REQUIRED TO DETERMINE BEST INTERESTS OF THE CHILD; VISITATION PETITIONS NEED NOT BE VERIFIED (THIRD DEPT).

The Third Department, reversing Family Court, determined: (1) father’s incarceration constituted a change in circumstances; (2) father’s petition for visitation and contact triggered the need for a hearing to determine the best interests of the child; and (3) verification of a visitation petition is not required by CPLR 3020 or Family Ct Act article 6:

… [W]e find that the father demonstrated a change in circumstances arising from his incarceration … .

We note that “[v]isitation with a noncustodial parent, even one who is incarcerated, is presumed to be in the best interests of the child[]” . Further, “as a general matter, custody determinations …  be rendered only after a full and plenary hearing” … . This guideline applies to requests for visitation and contact, as presented here … . Accordingly, in the absence of sufficient information allowing a comprehensive review of the child’s best interests, Family Court erred in dismissing the petitions without a hearing … . Finally, it was not necessary for Family Court to dismiss the petitions because they were unsworn, given that verification of a visitation petition is not required by either CPLR 3020 or Family Ct Act article 6 … . Matter of Shawn MM. v Jasmine LL., 2020 NY Slip Op 01223, Third Dept 2-20-20

 

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ALTHOUGH CONSENT ORDERS ARE GENERALLY NOT APPEALABLE, HERE THERE WAS A QUESTION WHETHER MOTHER WAS ABLE TO CONSENT IN THIS CUSTODY PROCEEDING; THE ATTORNEY FOR THE CHILD CANNOT VETO THE CONSENT OF THE PARTIES (THIRD DEPT).

The Third Department, reversing Family Court, determined the consent custody order, involving mother, aunt and great-aunt, may have been invalid because mother may have been unable to consent due to some unspecified disability, The Third Department noted that consent orders are generally not appealable, but here there was a question about the validity of the consent. The Third Department also noted that the attorney for the child (AFC), who disagreed with the consent order, does not have the power to veto a the consent of the parties:

We must first note that, as a general rule, no appeal lies from an order entered on consent … . Further, although Family Court cannot relegate the AFC to a meaningless role, the AFC cannot veto a proposed settlement reached by the parties, particularly after the AFC, as here, was given a full and fair opportunity to list objections to the proposed arrangement on the record … .

Here, however, we find substantial cause to question the validity of the mother’s consent to Family Court’s order. In the course of the appearances, the parties all appeared to acknowledge that the mother lacks the ability to care for the child on her own due to some disability, although the mother’s attorney objected to such a characterization in the absence of a legal determination. The AFC expressed concern about the effect of this disability on the mother’s “ability to . . . consent to anything.” Further, Family Court stated that “[the mother is] not in a position to make decisions.” In our view, this statement directly and expressly calls into question the mother’s ability to consent to the modification order … . In this context, the troubling allegations of inappropriate sexual contact raised by the AFC are particularly serious and significant. Our limited record thus does not demonstrate that the mother’s consent to the order was valid and, if not, that the court had “sufficient information to undertake a comprehensive independent review of the child’s best interests” … .  Accordingly, in these highly unusual circumstances, we remit for a hearing and further development of the record on the issue of the mother’s ability to consent, and, if necessary, as to whether the custody proposal meets the requisite standard of promoting the best interests of the child. Matter of Erica X. v Lisa X., 2020 NY Slip Op 01224, Third Dept 2-20-20

 

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ALTHOUGH FATHER MISSED PLEADING AND DISCLOSURE DEADLINES, THERE WAS NO EVIDENCE THE OMISSIONS WERE WILLFUL; THEREFORE PRECLUDING FATHER FROM PRESENTING EVIDENCE IN THE CUSTODY MODIFICATION PROCEEDING WAS TOO SEVERE A SANCTION (THIRD DEPT).

The Third Department, reversing Family Court, determined father should not have been precluded from offering evidence in the modification of custody proceeding. Although father missed several court-imposed deadlines for responding papers and disclosure, the sanction was too severe:

… [A]lthough the father failed to comply with court-ordered deadlines for responsive pleadings and discovery, the record lacks any evidence of willfulness on the part of the father to warrant a drastic sanction of complete preclusion … . The father was represented by assigned counsel at the May 7, 2018 conference during which the initial discovery schedule was established. Shortly thereafter, the mother served a first demand for interrogatories and combined discovery demand. … In the meantime, the father was assigned new counsel who appeared for the July 16, 2018 conference, at which time the deadlines were extended. At the fact-finding hearing, the father’s counsel stated that delay in responding “is predominantly my fault and I will make that very explicitly clear on the record.” In light of the preliminary conference orders, counsel also made the meritless assertion that the mother’s discovery demands were ineffective for lacking court authorization. On the other hand, counsel did serve a response to the interrogatories — although that response was unverified. In light of the foregoing, we cannot conclude that the father’s conduct was willful. Additionally, “modification of custody determinations requires a full and comprehensive hearing with the parties given the opportunity to present in open court evidence as to the best interest[s] of the child” … . Here, the preclusion of all of the father’s testimony renders it difficult to determine the best interests of this child (see id.). Based on the foregoing, we remit the matter for a new hearing. Matter of Tara DD. v Seth CC., 2020 NY Slip Op 01227, Third Dept 2-20-20

 

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COURT SHOULD NOT HAVE DISMISSED, SUA SPONTE, FATHER’S MODIFICATION OF CUSTODY PETITION FOR FAILURE TO STATE A CAUSE OF ACTION BECAUSE MOTHER DID NOT REQUEST THAT RELIEF; THE THIRD DEPARTMENT CONSIDERED AND DENIED MOTHER’S MOTION FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge, sua sponte, should not have dismissed father’s modification of custody petition for failure to state a cause of action because mother did not request that relief. The Third Department went on to consider mother’s motion for summary judgment and deny it:

“[A] motion for summary judgment may be utilized in a Family Ct Act article 6 proceeding, but such a motion should be granted only when there are no material facts disputed sufficiently to warrant a trial” … . “In a custody modification proceeding, the controlling ‘material fact’ is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement” … .

Here, the mother failed to meet her initial summary judgment burden. There can be no dispute that only five months had elapsed since entry of the March 2018 order and, as such, the “automatic” change in circumstances provision incorporated in that order had not been triggered. The father, however, sought modification based upon several other alleged changes in circumstance, including that the mother had been disparaging the father in front of the children in violation of the March 2018 order and that she is living in a homeless shelter. The mother, in her motion for summary judgment, makes no mention of these allegations or otherwise attempts to refute them in any way. Matter of Anthony F. v Christy G., 2020 NY Slip Op 01228, Third Dept 2-20-20

 

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PETITION ALLEGED MOTHER FAILED TO GIVE ADHD MEDICATION TO THE CHILDREN; THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; BECAUSE FAMILY COURT ADDRESSED THE MERITS OF THE MOTION TO REARGUE THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED RENDERING THE ORDER APPEALABLE AS OF RIGHT (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect proceeding should not have been dismissed without a hearing. The petition alleged mother was not providing ADHD medication to the children and the children were unable to focus in school as a result. The Third Department noted that, although the denial of a motion to reargue is not appealable, here Family Court addressed the merits of the motion to reargue and will be deemed to have granted the motion:

Although, generally, no appeal lies from an order denying a motion to reargue, where “the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . Considering that Family Court scheduled and heard oral argument on the motion to reargue and, thereafter, issued a decision addressing the merits, we deem the court to have granted reargument, such that the December 2018 order adhering to the October 2018 order is appealable as of right … . …

“A parent’s unwillingness to follow a recommended course of psychiatric therapy and medication, resulting in the impairment of a child’s emotional health[,] may support a finding of neglect. However, what constitutes adequate medical care cannot be judged in a vacuum. The critical factor in this determination is whether the parent[ has] provided an acceptable course of medical treatment for [his or her] child in light of all the surrounding circumstances” … . Here, the petition and corresponding affidavit stated, among other things, that respondent failed to properly administer prescribed ADHD medication to the two oldest children and failed to bring them to scheduled doctor appointments, and that those children were struggling in school and were unable to focus because they were not receiving the proper dosage of medication. The petition states that these allegations are supported, in part, by information received from the children and their school. Petitioner further alleged its concern that respondent was either taking the children’s medication herself or selling it, along with the reasons for such concern. * * *

Despite the lack of allegations in the petition directly concerning the youngest child, the petition’s allegations could support a finding of derivative neglect of that child. Matter of Aydden OO. (Joni PP.), 2020 NY Slip Op 01232, Third Dept 2-20-20

 

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CHILD WAS ASLEEP DURING THE INCIDENT INVOLVING FATHER, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support finding father had neglected the child. The child was asleep during the incident:

The Family Court’s finding that the father neglected the subject child lacks a sound and substantial basis in the record because a preponderance of the evidence does not demonstrate that the child’s physical, mental or emotional condition was impaired or in danger of becoming impaired, or that the actual or threatened harm to the child was a consequence of the father’s failure to exercise a minimal degree of care in providing her with proper supervision or guardianship during the February 14, 2016 incident …  Although the mother’s and the father’s fact-finding testimony established that the child was in the home when the incident occurred, petitioner failed to establish a prima facie case of neglect because their testimony also established that the child was sleeping in another room in the apartment and was unaware of what occurred, which testimony was supported by the testimony of the responding police officer … . Matter of K. S. (Dyllin S.), 2020 NY Slip Op 00979, First Dept 2-11-20

 

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STATEMENT MADE IN PRIOR APPELLATE DECISION IN THE SAME MATTER TO THE EFFECT NO ONE QUESTIONED THE NUMBER OF HOURS PUT IN BY THE ATTORNEY FOR THE CHILD WAS DICTA AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED THE LAW OF THE CASE ON REMITTAL; THE FOURTH DEPARTMENT REDUCED THE NUMBER OF BILLABLE HOURS (FOURTH DEPT).

The Fourth Department, reducing the amount of attorney’s fees awarded by Supreme Court, noted that a statement made by the Fourth Department in a prior appeal in the same matter was dicta and therefore should not have been treated as the law of the case by Supreme Court. In the prior decision the Fourth Department stated that no one had questioned the number of hours the attorney (Reedy) had worked on the case as the attorney for the child. Supreme Court took that statement to mean the number of hours could not be reduced by the court on remittal:

Our prior order unequivocally directed the court to calculate the amount of Reedy’s fees. An award of attorney’s fees must be “calculated on the basis of the . . . hours actually and reasonably spent on the matter by . . . counsel, multiplied by counsel’s reasonable hourly rate” … . In assessing the reasonableness of the hours spent by counsel, the issue “is not whether hindsight vindicates an attorney’s time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in the same time expenditures” …  . Thus, upon remittal the court was, inter alia, to determine an award of attorney’s fees that adequately reflected both the time spent and whether such time “was reasonably related to the issues litigated” … . Here, especially in light of Reedy’s prior concession that the amount sought was excessive, we conclude that the court abused its discretion in fixing the amount of fees without determining the reasonableness of the number of hours included in Reedy’s fee request … .

Contrary to respondent’s contention, the court’s statement in its earlier decision that “[n]o one has questioned the number of hours [Reedy] has claimed” did not become law of the case. The doctrine of law of the case “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” … . Consequently, the doctrine does not apply where, as here, the court makes statements that are “mere dicta” … . Inasmuch as the court’s ultimate ruling in its earlier decision was that Reedy was not entitled to compensation as a private pay AFC, the court’s statement about the number of hours that he worked was dictum. Stefaniak v Zulkharnain, 2020 NY Slip Op 00961, Fourth Dept 2-7-20

 

FAMILY COURT SHOULD NOT HAVE HELD A CUSTODY HEARING WITHOUT FATHER’S PARTICIPATION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should have held a custody hearing without father’s participation:

During an appearance at which Family Court specifically stated that it was not “making any findings” and that it would make findings only after a future hearing, the father apparently grew frustrated with the proceedings and walked out of court. As the father was leaving, the court warned him that it would issue a permanent order in his absence. Thereafter, the court proceeded to hold a hearing, take testimony from the mother, and issue its determination on custody and visitation.

“It is axiomatic that custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry . . . This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest[s] of the child[ren]” … . Indeed, custody determinations “require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors—such as the credibility and sincerity of the witnesses, and the character and temperament of the parents—that are often critical to the court’s determination” … . Matter of Williams v Davis, 2020 NY Slip Op 00777, Fourth Dept 1-31-20

 

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