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FATHER, WHO WAS INCARCERATED IN PENNSYLVANIA, INFORMED FAMILY COURT HE WISHED TO APPEAR BY TELEPHONE IN THE CUSTODY MATTER; FAMILY COURT DENIED THE REQUEST STATING THE COURT DID NOT HAVE JURISDICTION OVER FATHER; THE 3RD DEPARTMENT HELD FATHER, WHO HAD NOT CHALLENGED THE COURT’S JURISDICTION, SHOULD HAVE BEEN ALLOWED TO APPEAR BY PHONE (THIRD DEPT).

The Third Department, reversing Family Court, determined that father, who was incarcerated in Pennsylvania, should have been allowed to appear in the custody proceeding by telephone. Father had informed the court of his wish to appear and had not challenged the court’s jurisdiction and informed Family Court he wished to appear by telephone. Family Court denied father’s request stating that the court did not have jurisdiction over father:

“The right to be heard is fundamental to our system of justice” … . Further, “[p]arents have an equally fundamental interest in the liberty, care and control of their children” … . “[E]ven an incarcerated parent has a right to be heard on matters concerning [his or her] child, where there is neither a willful refusal to appear nor a waiver of appearance” … . Here, the father had notice of the proceeding, did not challenge Family Court’s jurisdiction and the court could have permitted him to testify telephonically … . Because the record demonstrates that the father was not given an opportunity to participate in the proceedings, we must reverse and remit for a new hearing … . Matter of Starasia E. v Leonora E., 2020 NY Slip Op 00334, Third Dept 1-16-20

 

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THE EVIDENCE DID NOT SUPPORT THE NEGLECT FINDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the finding of neglect was not supported:

To establish neglect, a petitioner must demonstrate by a preponderance of the evidence, ‘first, that [the] child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ . ‘Actual or imminent danger of impairment is a prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to…  the child, not just on what might be deemed undesirable parental behavior’ … .

… The evidence adduced at the fact-finding hearing demonstrated that the mother and the child have a difficult relationship caused, in significant part, by the mother’s disapproval of the child’s behavior and the child’s unwillingness to abide by her mother’s rules, and the fact that the child had disciplinary problems at home and at school. Contrary to the court’s determination, there was insufficient evidence to prove that the mother ever struck the child at the relevant time. While the petition alleged that the mother, during an argument with the child … locked the child in a storage room, the child testified that she herself ran into the storage room, locked the door, and was not physically hurt. This argument arose when the mother told the child that she could not go out that night. At that time, when the neglect is alleged to have occurred, the child had been residing with the mother for only one day, having lived in foster care for approximately two years. Moreover, although the petition alleged that the mother was required to make alternate living arrangements for the child since the child could no longer reside with the maternal grandmother and refused to reside with the mother, the mother’s desire to have the child reside with her does not support a finding of neglect. Finally, the evidence adduced at the fact-finding hearing of the mother’s insults and name-calling, while certainly counterproductive and inappropriate, does not rise to the level of establishing a failure to provide the child with proper supervision or guardianship or demonstrate a resulting impairment or imminent danger of impairment of the child’s physical, mental, or emotional condition … . Matter of Alexandra R.-M. (Sonia R.), 2020 NY Slip Op 00280, Second Dept 1-17-20

 

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MOTHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER SHOULD NOT HAVE BEEN DISMISSED AT THE CLOSE OF MOTHER’S CASE; REMITTED FOR A CONTINUED HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify the custody order should not have been dismissed at the close of the mother’s case:

A party seeking modification of an existing custody order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child  … . The best interests of the child are determined by a review of the totality of the circumstances … . In deciding an application to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom  … .

Here, accepting the mother’s evidence as true and affording her the benefit of every favorable inference, the mother presented sufficient prima facie evidence of a change of circumstances which might warrant modification of custody in the best interests of the child … . There was evidence that the mother had moved from the country of Jamaica and was now living in Staten Island with her husband and family. Further, the mother presented evidence that the stepmother had used corporal punishment on the child between the date of the custody order and the filing of the mother’s petition, despite the fact that the custody order expressly prohibited the parties from using or tolerating the use of corporal punishment on the child. Matter of Campbell v Blair, 2020 NY Slip Op 00270, Second Dept 1-17-20

 

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THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE RULINGS IN THIS CUSTODY/PARENTAL ACCESS CASE, HEARINGS SHOULD HAVE BEEN HELD; THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE IMPOSITION OF SANCTIONS FOR FRIVOLOUS CONDUCT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this custody/parental access proceeding, determined Supreme Court should have conducted hearings because the evidence relied upon was insufficient. The Second Department further found there was insufficient evidence to support the sanctions imposed for allegedly frivolous conduct:

We disagree with the Supreme Court’s determination (1) awarding the defendant sole legal custody of the parties’ child, (2) denying that branch of the plaintiff’s cross motion which was to direct therapeutic parental access with the child, (3) directing that parental access between the plaintiff and the child “shall take place in accordance with [the child’s] preferences,” and (4) granting the defendant’s motion for a restraining order prohibiting the plaintiff from interfering with the child’s life at school, without first conducting an evidentiary hearing … . …

Here, the record demonstrates unresolved factual issues so as to require a hearing on the issues of custody and parental access … . Moreover, in making its custody and parental access determination, the Supreme Court relied on the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by either party … . * * *

… [P]ursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party’s attorney for frivolous conduct. Conduct is “frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of proof” … .

Here, contrary to the Supreme Court’s determination, the defendant failed to establish that the plaintiff’s conduct during the underlying motion practice was frivolous … . Brin v Shady, 2020 NY Slip Op 00256, Second Dept 1-17-20

 

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AMENDMENT TO SOCIAL SERVICES LAW EXTENDING SUBSIDIES FOR CHILDREN CARED FOR BY A GUARDIAN UNTIL AGE 21 SHOULD HAVE BEEN APPLIED RETROACTIVELY; THE MATTER IS APPEALABLE AS OF RIGHT (FIRST DEPT).

The First Department, reversing Family Court, determined the amendment to Social Services Law 458-b allowing monthly subsidies for children cared for by guardians to be extended to age 21 (from 18) should be applied retroactively. The matter was deemed appealable as of right:

… [T]he order is appealable as of right, because it is an order of disposition that terminates the children’s guardianship placement once the children reach the age of 18 and terminates the proceeding itself … . In any event, this Court can deem a notice of appeal from the denial of the motion a request for permission to appeal and we would grant that request … . …

A review of the legislative history supports the conclusion that the amended statute is remedial in nature. … [W]e can discern from the legislative history that the intent was to remove the disparity created between foster/adoptive parents and guardians since foster/adoptive parents are able to obtain subsidies notwithstanding the age of the child at the time of fostering or adoption.

The mere fact that the amended statute is remedial in nature is not determinative as to whether it should be applied retroactively … . … [A] remedial amendment will only be applied retroactively if it does not impair vested rights … .

… [T]he amendment does not create a new entitlement; rather it expands “existing benefits to a class of persons arbitrarily denied those benefits by the original legislation” … . There is no dispute that had the children been adopted by the grandmother and remained with her under the auspices of foster care, or had the grandmother proceeded with guardianship after they turned 16, they would have been entitled to subsidies until the children turned 21. Matter of Jaquan L. (Pearl L.), 2020 NY Slip Op 00213, First Dept 1-9-20

 

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FATHER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS CHILD SUPPORT PROCEEDING RESULTING IN HIS COMMITMENT TO THREE MONTHS IN JAIL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not receive effective assistance of counsel in this child support proceeding which committed father to three months in jail for violation of the child support order:

We agree with the father that he was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard”… . Here, the father’s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition … . Matter of Miller v DiPalma, 2020 NY Slip Op 00140, Second Dept 1-8-20

 

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SUPPORT MAGISTRATE HAD THE AUTHORITY TO VACATE MAINTENANCE ARREARS; THE FORMER HUSBAND DEMONSTRATED THE FORMER WIFE WAIVED HER RIGHT TO MAINTENANCE PAYMENTS 16 YEARS BEFORE THE PETITION WAS BROUGHT (SECOND DEPT).

The Second Department, reversing Family Court, determined the former husband’s (appellant’s) objection to the support magistrate’s order that appellant pay maintenance arrears should have been granted. The support magistrate had terminated the former wife’s (respondent’s) right to maintenance payments but held she did not have the authority to vacate the arrears. The Second Department held respondent had waiver her right to maintenance payments years before and appellant was not obligated to pay the arrears:

… [P]ursuant to Domestic Relations Law § 236(B)(9)(b), a prior judgment or order as to maintenance may be modified or annulled after the accrual of such arrears where “the defaulting party shows good cause for failure to make an application for relief from the judgment or order directing payment prior to the accrual of such arrears” … . …

The appellant demonstrated that in June 2001, the respondent waived her right to receive maintenance payments … . “A valid waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable'” … . “It may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage” … . Here, the evidence adduced at the hearing demonstrated that after the appellant stopped paying maintenance beginning in June 2001 pursuant to the parties’ alleged oral agreement, the respondent did not make any written demands or otherwise move to enforce the maintenance provision of the parties’ judgment of divorce for a period of more than 16 years. Although a waiver “is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … , the respondent’s conduct evinced an intent by her to abandon her right to maintenance payments and supported the appellant’s claim that she had orally agreed to terminate his maintenance obligation in June 2001 … . Matter of Makris v Makris, 2020 NY Slip Op 00139, Second Dept 1-8-20

 

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ALTHOUGH THE CHILD WAS 17 AND HAD A LONG STANDING PARENT-CHILD RELATIONSHIP WITH MOTHER’S HUSBAND, THE DOCTRINE OF EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN APPLIED TO DISMISS MOTHER’S PETITION FOR GENETIC MARKER TESTING TO DETERMINE PATERNITY; THE CHILD WAS AWARE FROM A YOUNG AGE THAT THE PUTATIVE FATHER WAS THE CHILD’S BIOLOGICAL FATHER AND THERE WAS NO SHOWING THE PATERNITY PETITION WAS NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT).

The Second Department, reversing Family Court, determined the doctrine of equitable estoppel should not have been applied to dismiss mother’s petition for a genetic marker test to determined paternity. The petition was brought when the child was 17 and the child was aware at a young age that the putative father was in fact the child’s biological father. The child had developed a parent-child relationship with mother’s husband, who had known the child since the child was two. The equitable estoppel doctrine is applied solely in the child’s best interests which were not shown to be detrimentally affected by the paternity petition:

As the party moving for dismissal of the petition, the putative father failed to establish that the child would suffer irreparable loss of status, destruction of his family image, or other harm to his physical or emotional well-being if a genetic marker test was ordered … . Here, the record reflects that the child was told by his mother and the husband at a young age that the putative father was his biological father. “Equitable estoppel is not used to deny the existence of a relationship, but rather to protect one” … . Absent any indication that the child’s relationship with the husband needed protection from a determination as to whether the putative father was the biological father, equitable estoppel was not available to the putative father as a remedy … . Thus, under the circumstances, any lack in diligence by the mother in pursuing her earlier petitions was not a basis to estop her from seeking to establish the putative father’s paternity … . Matter of Denise R.-D. v Julio R. P., 2020 NY Slip Op 00145, Second Dept 1-8-20

 

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EVIDENCE SUPPORTED DERIVATIVE NEGLECT FINDING (SECOND DEPT).

The Second Department determined the evidence supported Family Court’s derivative neglect finding:

… [T]he evidence adduced at the fact-finding hearing established that the mother’s verbal abuse of Hannah due to an untreated mental illness demonstrated such an impaired level of parental judgment as to create a substantial risk of harm to Samuel. Hannah testified that the mother threw things at her and instructed her brothers, including Samuel, to hit her when the mother became frustrated with her. According to Hannah, after these proceedings were commenced, the mother told Hannah that Hannah would be placed in a mental institution and raped in the petitioner’s custody, told Hannah that the mother would pretend Hannah was dead and burn Hannah’s clothes, and threatened to kill Hannah once the case was over. The mother’s conduct caused Hannah to fear the mother and her brothers. This evidence sufficiently supported the Family Court’s conclusion that the mother derivatively neglected Samuel, as it demonstrated that the mother had such an impaired level of parental judgment as to create a substantial risk of harm to the well-being of Samuel … . Matter of Samuel A. R. (Soya R.), 2020 NY Slip Op 00144, Second Dept 1-8-20

 

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SENTENCE WHICH INCLUDED BOTH JAIL TIME AND PROBATION FOR VIOLATION OF A CHILD SUPPORT ORDER IS ILLEGAL; AN ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION OF THE ERROR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the imposition of a jail sentence and probation for father’s failure to pay support in violation of a court order was illegal. An illegal sentence is appealable without preservation of the error:

Although the father failed to preserve his challenge to the legality of his sentence, a challenge to an unlawful sentence is not subject to the preservation rule … . Family Court Act § 454 expressly delineates the authority of the Family Court to impose either probation or a term of incarceration upon a finding of a willful violation of an order of support, not both (… Family Court Act § 454[3]). Thus, the Family Court was without authority to impose both a jail term and probation (see Family Court Act § 454[3] …). Since the father completed his 90-day term of incarceration, that portion of his sentence imposing probation must be vacated … . Matter of Lopez v Wessin, 2020 NY Slip Op 00137, Second Dept 1-8-20

 

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