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FAMILY COURT DID NOT HAVE A SUFFICIENT BASIS, I.E. STATEMENTS BY A CASEWORKER AND THE ATTORNEY FOR THE CHILD, TO DETERMINE NEW YORK HAD BEEN DIVESTED OF JURISDICTION IN THIS CUSTODY CASE; MOTHER WAS NOT ADEQUATELY INFORMED OF HER RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judges should not have dismissed mother’s petition to modify custody solely on the basis of statements made by a caseworker and the attorney for the child indicating the child lived in New Jersey. The Second Department further found that Family Court did not adequately inform mother of the rights she was giving up by representing herself:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at article 5-A of the Domestic Relations Law, a court of this state which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds that it should relinquish that jurisdiction because “neither the child” nor “the child and one parent” have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a[1][a] …).

Here, it is undisputed that the initial custody determination was rendered in New York. Nothing on the record before the Family Court established that it had been divested of exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1). * * *

Moreover, the parent of any child seeking custody in any proceeding before the Family Court has the right to the assistance of counsel (see Family Ct Act § 262[a][v]). A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel … . In order to determine whether a party has validly waived the right to counsel, a court must conduct a “searching inquiry” to ensure that the waiver has been made knowingly, voluntarily, and intelligently … . A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel … . Here, the Family Court did not conduct a sufficiently searching inquiry to ensure that the mother’s waiver of her right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Means v Miller, 2019 NY Slip Op 06088, Second Dept 8-7-19

 

FAMILY COURT SHOULD NOT HAVE CREDITED TO FATHER CHILD SUPPORT PAYMENTS HE MADE WHEN MOTHER WAS INTERFERING WITH HIS VISITATION (THIRD DEPT).

The Third Department noted that Family Court should not have credited back to father child support payments he made during the period when mother was interfering his visitation. Such a suspension of child support can only be made prospectively:

… Family Court erred in suspending the father’s child support obligation from June 21, 2017 to February 8, 2018 and ordering the money collected during that period to be credited back to the father. Although a court may suspend child support payments for a period where “the custodial parent has ‘wrongfully interfered with or withheld visitation'” … , absent special circumstances, not present here, the suspension must be prospective …. We further find that even where, as here, child support payments are suspended due to a parent’s interference, the “strong public policy against restitution or recoupment of support payments” is applicable … . Family Court therefore had no authority to “credit[] back” to the father the payments he made during the period of suspension against his current support obligation or the arrears … . Matter of Kanya J. v Christopher K., 2019 NY Slip Op 06030, Third Dept 8-1-19

 

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MOTHER DID NOT HAVE STANDING TO BRING AN ACTION TO VACATE THE ADOPTION OF HER CHILD BY HER FORMER HUSBAND PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) BECAUSE THE ACT ONLY APPLIES TO CHILDREN REMOVED FROM A PARENT’S CUSTODY (SECOND DEPT).

The Second Department determined mother did not have standing to bring an action pursuant to the Indian Child Welfare Act (ICWA) to vacate an order of adoption in favor of her former husband. Mother alleged the adoption was not accomplished in compliance with the ICWA. The ICWA only applies to a parent from whose custody the child was removed and the child had not been removed from mother’s custody:

… [A]lthough the adoption proceeding involved the voluntary termination of the birth father’s parental rights to the subject child, the plain language of both 25 USC § 1914 and 25 CFR 23.137(a) is clear that only the child, the parent or Indian custodian from whose custody the child has been removed, and the Indian child’s tribe have standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA . Since the mother does not fall in… to any of those categories, she lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA … . “[T]he language of [section] 1914 …  limits standing to challenge state-law terminations of parental right to parents from whose custody such child was removed'” … . Matter of Connor (Mariann D.–Jacob D.), 2019 NY Slip Op 05979, Second Dept 7-31-19

 

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THE JUDGE MISCHARACTERIZED THE EVIDENCE AND EXHIBITED BIAS IN FAVOR OF FATHER IN THIS CUSTODY CASE, THE DETERMINATION WAS REVERSED AND THE MATTER SENT BACK FOR ANOTHER HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing the custody determination and remitting the matter for another hearing before a different judge, determined the judge mischaracterized the evidence and exhibited bias in favor of father:

We agree with the mother and the attorney for the child that Family Court’s decision and order misstates and mischaracterizes the record evidence and that the determination lacks a sound and substantial basis in the record. For example, the court determined that a “curious” exchange between the child and a therapist “tended to suggest that the child was confused about her feelings toward her father,” characterized the testimony by the mother’s forensic psychologist who deemed the mother mentally fit as a “brief interlude of comic relief,” and lauded the father’s willingness to undergo penile plethysmograph testing — characterized as “a colonoscopy of the soul” — as “speak[ing] volumes to his actual innocence.” The court went so far as to criticize the forensic expert’s testimony concerning the September 2016 visitation as an example of blending incidents by commenting, “The only blending here . . . is that of pseudoscience with the world’s oldest profession.” The record does not support any of this unfortunate and bizarre commentary.

It is concerning that Family Court wholeheartedly credited the father’s testimony, viewed most — if not all — of the evidence in a light least favorable to the mother …  and diminished the evidence of domestic violence perpetrated by the father against the mother in the child’s presence. Matter of Nicole TT. v David UU., 2019 NY Slip Op 05729, Third Dept 7-18-19

 

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FAMILY COURT WAS WITHOUT AUTHORITY TO ISSUE A RESETTLED ORDER WHICH SUBSTANTIALLY CHANGED THE ORIGINAL ORDER AND WHICH WAS ISSUED WITHOUT THE BENEFIT OF TESTIMONY CONCERNING MOTHER’S SERIOUS MENTAL HEALTH AND SUBSTANCE ABUSE PROBLEMS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the court was without authority to issue a resettled order which substantially changed the original order. The original order, which was issued in the absence of testimony, provided that mother’s mental health and substance abuse problems be monitored by the Monroe County Probation Department. The Department declined because it does not handle custody matters. Family Court then issued the resettled order requiring mental health and substance abuse treatment for mother and allowing grandmother access to mother’s medical records:

“Resettlement of an order is a procedure designed solely to correct errors or omissions as to form or for clarification. It may not be used to effect a substantive change in or to amplify the prior decision of the court” ( …  see CPLR 2221).

… Family Court’s resettled order does “effect a substantive change” and was beyond the court’s authority to issue. The underlying petition included serious substance abuse and mental health allegations, but at no point was any actual testimony taken. These concerns were discussed during the stipulation colloquy before Family Court (Ames, J.), but the court ultimately determined to place the mother on probation subject to standard terms and conditions that did not impose independent evaluation requirements. In addition, the court was not authorized to defer to the probation department the decision as to whether the mother should undergo a substance abuse and/or mental health evaluation …  . The plain fact of the matter is that the colloquy resulting in the oral stipulation was not definitive on the evaluation issue. “To be enforceable, an open court stipulation must contain all of the material terms and evince a clear mutual accord between the parties” … . Although we are mindful of the court’s authority to require a party to undergo an evaluation, the resettled order was issued as a consent order, not as an express directive under Family Ct Act § 251. Given the absence of any record testimony, the resettled order cannot stand. Matter of Joan HH. v Maria II., 2019 NY Slip Op 05737, Third Dept 7-18-19

 

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THE INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN (ICPC) APPLIES ONLY TO OUT-OF-STATE ADOPTION OR FOSTER CARE, NOT TO THE PLACEMENT OF A CHILD WITH AN OUT-OF-STATE PARENT; QUESTION CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; REGULATION RELIED ON TO APPLY THE ICPC CONFLICTS WITH THE CONTROLLING STATUTE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Webber, in a matter of first impression, and refusing to follow the 2nd Department, determined that the Interstate Compact for the Placement of Children (ICPC) applies only to children to be adopted or placed in foster care in another state, not, as here, to the placement of a child with the father in another state. The issue was considered on appeal as an exception to the mootness doctrine because it is likely to reoccur. The First Department held that the controlling statute, Social Services Law 374-a,  clearly states that the ICPC applies only to out of state foster care or adoption, and the regulation which states otherwise (Association of Administrators of the Interstate Compact on the Placement of Children. AAICPC, Regulation 3) improperly expands the statutory language:

There is no dispute that the ICPC was intended to provide children in need of foster and adoptive families with more possible placements across state lines. The purpose of the statute was twofold: to assure the placement would be in a child’s best interests, and to preclude the “sending State from exporting its foster care responsibilities to a receiving State” … . Thus the ICPC was enacted to provide children in need of foster and adoptive families with more options, while still paying heed to concerns about the children’s welfare.

There is also nothing in the language of the statute or the legislative history to indicate that the ICPC was ever intended to address any individual other than an out-of-state foster or adoptive parent. The language explicitly limits its applicability to out-of-state placements in foster care or as a preliminary to a possible adoption … . The limitation reflects the ICPC’s purpose which was to provide “a uniform legislative framework for the placement of children across state lines in foster and/or adoptive homes” … . Matter of Emmanuel B. (Lynette J.), 2019 NY Slip Op 05640, First Dept 7-18-19

 

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IN THIS NEGLECT PROCEEDING STEMMING FROM THE PARENTS’ REFUSAL TO ALLOW THEIR TEENAGE CHILD TO RETURN HOME, THE PARENTS SHOULD HAVE BEEN ALLOWED TO PRESENT EVIDENCE OF THEIR TEENAGE CHILD’S BEHAVIOR WHICH RESULTED IN CRIMINAL PROCEEDINGS AND AN ORDER OF PROTECTION IN FAVOR OF FATHER, AS WELL AS EVIDENCE OF THEIR ATTEMPTS TO MEET WITH THE AGENCY AND WORK OUT A PLAN (FIRST DEPT). ​

The First Department, reversing Family Court, determined that respondent-parents should have been allowed to present evidence of their teenage child’s behavior in this neglect proceeding. The parents refused to allow the child to return home after a physical fight between the child and father which resulted in criminal proceedings against the child and an order of protection in favor of the father:

Parents are obligated to support a child under the age of 21 (Family Court Act § 413[1][a]) and to exercise a “minimum degree of care” in supplying the child with adequate food, clothing, shelter, and education … . In determining whether a parent has neglected a child by failing to meet that standard, the court “must evaluate parental behavior objectively,” by asking whether “a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing” … . This Court has concluded in many circumstances that a child’s history of disciplinary issues did not justify a parent in excluding the child from the home while failing to cooperate with the agency’s efforts to address the child’s problems and to return the child to the home … .

However, none of those cases involved pending criminal proceedings and an order of protection against the child and in favor of one parent. Respondents were entitled to a full and fair opportunity to present evidence … showing that they acted reasonably as prudent parents under all the circumstances … , and that, based on a founded fear it would be unsafe for the child to return home, they were unable to continue to care for him … . Instead, the court limited evidence to the time period alleged in the petition, precluding respondents from presenting other evidence concerning the child’s behavior. Respondents also were precluded from presenting evidence of their attorney’s communications with the agency, which was offered to show their willingness to meet and plan with the agency provided that the child was not present and their attorney could be present. Matter of Elijah M. (Robin M.), 2019 NY Slip Op 05471, First Dept 7-9-19

 

SUPPORT MAGISTRATE SHOULD NOT HAVE AWARDED CHILD SUPPORT TO FATHER; MOTHER WAS ENTITLED TO ARREARS UNDER THE CIRCUMSTANCES OF THIS CASE (FOURTH DEPT).

The Fourth Department concluded the support magistrate should not have awarded father child support because mother and father shared custody equally and father had the greater income and assets. The Fourth Department determined, in this circumstance, mother should be awarded arrears based upon the child support she should not have been ordered to pay:

… [M]other that she is entitled to a credit against any arrears from the order for the amount of child support erroneously awarded to the father from April 2, 2015 until January 1, 2016, and we therefore remit the matter to Family Court to determine the amount of arrears and the credit to be applied thereto. Although there is a strong public policy against recoupment of child support overpayments … , we conclude that the requested credit is appropriate under the limited circumstances of this case. Here, the record establishes that the mother had significantly less income and received certain public benefits, while the father received substantial disability and pension benefits and had significant assets … . Moreover, granting the mother’s request “will not detract from [the father] fulfilling the needs of the child[ ] while [he is] in [the father’s] care” and, indeed, will relieve the mother of an erroneously-imposed financial obligation, thereby allowing her to use her funds to maintain a stable household for the child and meet his reasonable needs during visitation … . Matter of Rapp v Horbett, 2019 NY Slip Op 05447, Fourth Dept 7-5-19

 

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THE ORDER OF PROTECTION WAS NOT SUFFICIENTLY TIED TO THE BEST INTERESTS OF THE CHILD IN THIS NEGLECT PROCEEDING AND SHOULD HAVE BEEN VACATED, ISSUE CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined that the order of protection requiring respondent putative father to undergo random urine, breath and blood tests was not sufficiently linked to the best interests of the child. Although the issue was moot in respondent’s case, the Third Department considered the issue, which is likely to recur, as an exception to the mootness doctrine:

… [U]nder the circumstances of this case, the record does not support Family Court’s conclusion that the conditions imposed upon respondent were necessary to further the purposes of protecting the child. At the time that the neglect proceeding was commenced against him and when Family Court entered the temporary order, respondent did not have legal or physical custody of the child; he only had limited parenting time with the child. Yet, the conditions imposed in the temporary order bore no connection to respondent’s parenting time with the child (see Family Ct Act §§ 1029 [a]; 1056 [1] [i]… ). For example, the temporary order generally required respondent to submit to random urine, breath or other tests upon petitioner’s request, rather than requiring that such test occur prior to respondent’s parenting time. The conditions were broad and designed to compel respondent to address his alleged alcohol and substance abuse issues. Family Court adopted petitioner’s proposed conditions without an adequate connection to or explanation as to how each of the conditions related to the protection of the child. Accordingly, we agree with respondent that the temporary order was improper and that Family Court should have granted respondent’s motion to vacate. Matter of Carmine GG. (Christopher HH.), 2019 NY Slip Op 05360, Third Dept 7-3-19

 

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SUMMARY JUDGMENT, BASED IN PART ON THE COLLATERAL ESTOPPEL EFFECT OF RESPONDENT’S CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD, PROPERLY GRANTED (THIRD DEPT).

The Third Department determined petitioner’s motion for summary judgment in this neglect proceeding was properly granted. The motion was based in party on respondent’s endangering-the-welfare-of-a-child conviction:

… “[A] criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . Defendant does not dispute that he had a full and fair opportunity to litigate his criminal conduct before the trial court … . … In order to find a defendant guilty of endangering the welfare of a child, it must be proven that “[h]e or she knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than [17] years old” (Penal Law § 260.10 [1]). In turn, “[t]o establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child’s physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care” … . …

… [T]the factual allegations underlying respondent’s conviction were adequate to support the finding of neglect. Matter of Lilliana K. (Ronald K.), 2019 NY Slip Op 05358, Third Dept 7-3-19

 

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