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FAMILY COURT, IN THE WIFE’S ABSENCE, SUA SPONTE, RAISED ALLEGATIONS NOT INCLUDED IN THE FAMILY OFFENSE PETITION BEFORE THE COURT, FAMILY COURT THEN ALLOWED THE ALLEGATIONS TO BE ADDED TO THE PETITION, AND THE COURT WENT ON TO FIND THAT THE WIFE HAD COMMITTED THE FAMILY OFFENSES OF HARASSMENT AND MENACING, BECAUSE THE WIFE WAS NOT GIVEN NOTICE OF THE ADDED ALLEGATIONS, REVERSAL WAS REQUIRED (THIRD DEPT).

The Third Department, reversing Family Court, determined the wife was not given notice of the allegations which led to the court’s finding she had committed the family offenses of harassment and menacing .  The wife did not appear in court and her attorney told the court she was not authorized to represent her in the proceeding. Certain allegations were added to the family offense petition in the wife’s absence and without prior notice to her:

The court … , sua sponte, addressed a new subject, inquiring about allegations that had apparently been raised on some other occasion. When the court asked whether the alleged events had occurred, the husband responded, “Yes, ma’am,” without specifically describing those factual allegations. Upon this basis, the court then granted a request by the husband’s counsel to amend the petition to add certain offenses; notably, counsel made no request to amend the petition’s substantive allegations. The court then found the wife had committed the family offenses of harassment in the second degree, assault in the third degree, and menacing in the third degree, and directed the entry of a two-year order of protection.

Nothing in the record indicates that the wife was given any notice that the matters raised by Family Court would be addressed at the hearing. The allegations described by the court were not set forth within the husband’s July 2016 petition. …

“[N]otice is a fundamental component of due process” … . In the absence of notice to the wife, Family Court’s sua sponte consideration of extraneous allegations violated the wife’s due process rights … . Matter of King v King, 2018 NY Slip Op 08724, Third Dept 12-20-18

 

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FAILURE TO HOLD A LINCOLN HEARING WAS NOT AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that Family Court’s custody and parenting time rulings were supported by the evidence. The dissenting justices argued a Lincoln hearing should have been held to learn the preferences of the older child. The majority ruled Family Court did not abuse its discretion in not holding a Lincoln hearing:

We … do not share Family Court’s view that “[c]ourts are rarely only supposed to have Lincoln [h]earings.” To the contrary, conducting such hearings is the “preferred practice” … . That said, whether to conduct a Lincoln hearing rests in the discretion of Family Court … . Family Court noted that the testimony from the fact-finding hearing was “not remarkable nor extremely disturbing” and did not raise “any red flags.” In our view, the record was sufficiently developed for the court to make a custody and visitation determination. Furthermore, although the wishes of the older child, who was nearly 11 years old at the time of the hearing, were “entitled to consideration” … , this is just one factor in the best interests analysis and is not dispositive … . As such, under the [*3]circumstances of this case, we find no abuse of discretion … . Matter of Lorimer v Lorimer, 2018 NY Slip Op 08721, Third Dept 12-20-18

 

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UNLIKE IN FAMILY COURT ACT ARTICLE 10 AND 6 PROCEEDINGS, CHILDREN’S HEARSAY STATEMENTS ARE NOT ADMISSIBLE IN FAMILY COURT ACT ARTICLE 8 (FAMILY OFFENSE) PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Family Court in this family offense proceeding, in a full-fledged opinion by Justice McCarthy, determined the hearsay statements of the children should not have been admitted in evidence. Family Court had found that father committed harassment by grabbing one of the children. Although children’s hearsay has been deemed admissible in Family Court Act article 10 and 6 proceedings, such hearsay is not admissible in Family Court Act article 8 (family offense) proceedings:

Despite the extension of the exception from Family Ct Act articles 10 and 10-A to article 6, this Court has never directly addressed whether Family Ct Act § 1046 (a) (vi) can be applied in a proceeding pursuant to Family Ct Act article 8 … . The 1st and 2nd Departments have concluded that even though the exception has been applied in custody proceedings under article 6 that are founded on abuse or neglect, because Family Ct Act § 1046 (a) (vi) “is explicitly limited to child protective proceedings under articles 10 and 10-A, [it] has no application to family offense proceedings under article 8” … . This conclusion comports with the language of the statute. …

Having determined that Family Court should not have relied upon the children’s hearsay statements, we must consider whether the remaining evidence at the fact-finding hearing was sufficient to establish that the father committed a family offense. Setting aside the children’s statements to the detectives, to the mother and on the videotape, the evidence directly related to the incident is extremely limited. It includes a photograph showing a barely visible bruise on the middle child’s arm, the detectives’ evaluation of the children’s body language and the father’s testimony that he grabbed the middle child while removing him from a situation where he was misbehaving. The father testified that his intention in taking hold of the child was not to alarm him, but to get him and the situation under control. This testimony contradicts the intent required to prove harassment in the second degree and supports the father’s defense of justification, which permits a parent to use physical force to the extent that he or she deems reasonably necessary to maintain discipline … . Although the court could have disbelieved the father’s testimony and inferred his state of mind from the circumstances … , without the hearsay testimony, there was not a sufficient basis for the court to find that the father committed a family offense. Matter of Kristie GG. v Sean GG., 2018 NY Slip Op 08718, Third Dept 12-20-18

 

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EVIDENCE DID NOT SUPPORT TEMPORARY REMOVAL OF CHILD FROM FATHER’S CUSTODY DURING THE PENDENCY OF A CHILD PROTECTIVE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support temporary removal of the child from father’s custody during the pendency of a child protective proceeding:

“[O]nce a child protective petition has been filed, Family Court Act § 1027(a)(iii) authorizes the court to conduct a hearing to determine whether the child’s interests require protection, including whether the child should be removed from his or her parent”… . Upon such a hearing, temporary removal is only authorized where the court finds it necessary “to avoid imminent risk to the child’s life or health” … . “In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'” … .

Here, the petitioner failed to establish that Chloe would be subject to imminent risk if she remained in the father’s care pending the outcome of the neglect proceeding … . The hearing evidence showed that at no time did the father inflict excessive corporal punishment upon Chloe. In addition, the evidence showed that Dasanie may have been coached by Chloe’s mother, and Dasanie recanted, before several individuals, the allegations that the father inflicted excessive corporal punishment upon her. Matter of Chloe-Elizabeth A.T. (Albert T.), 2018 NY Slip Op 08666, Second Dept 12-19-18

 

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FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE TO DETERMINE IT WAS IN THE CHILD’S BEST INTERESTS TO BE WITH FATHER IN THIS TEMPORARY CUSTODY PROCEEDING, ALLEGATIONS OF EXCESSIVE CORPORAL PUNISHMENT REQUIRED A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined questions of fact about father’s use of corporal punishment required a hearing in this temporary custody matter about whether it was in the child’s best interests to be placed with father:

“[I]n any action concerning custody or [parental access] where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest of the child, together with other factors and circumstances as the court deems relevant in making an award of custody” (…see Domestic Relations Law § 240[1]…). In addition, consideration may be given to the express wishes of older and more mature children, but such wishes are not dispositive … .

As a general rule, “a custody determination should be made only after a full and fair hearing at which the record is fully developed”… . Under the circumstances of this case, the Family Court did not have sufficient evidence before it to reach a sound conclusion that it was in the subject child’s best interests for the father to have temporary custody pending determination of the issue of permanent custody. Throughout the proceedings, there were controverted allegations of excessive corporal punishment by the father against the subject child and the court was informed that the subject child suffers from certain mental health issues that were being treated in Connecticut. Matter of Poltorak v Poltorak, 2018 NY Slip Op 08662, Second Dept 12-19-18

 

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FATHER SHOULD NOT HAVE BEEN PRECLUDED FROM BRINGING FUTURE PARENTAL ACCESS PETITIONS WITHOUT COURT APPROVAL (SECOND DEPT).

The Second Department, reversing Family Court in this modification of custody proceeding, determined father should not have been precluded from submitting future parental access petitions:

A party seeking modification of an existing custody or parental access order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child… . “One who seeks a change in [parental access] is not automatically entitled to a hearing but must make a sufficient evidentiary showing of a material change of circumstances to warrant a hearing”… . However, where a facially sufficient petition has been filed, a full and comprehensive hearing is required to afford the parent a full and fair opportunity to be heard … .

Here, the Family Court should not have dismissed the father’s petition without a hearing. His evidentiary submissions were sufficient to warrant a hearing … .

The Family Court improvidently exercised its discretion in enjoining the father from filing any future parental access petitions without prior express written permission from the court. The court’s conclusion that the father had previously filed an “excessive number of petitions” was not supported by the record, nor was there any evidence that the father’s continued litigation had become abusive and vexatious … . Matter of Gonzalez v Santiago, 2018 NY Slip Op 08653, Second Dept 12-19-18

 

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FATHER MADE OUT A PRIMA FACIE CASE FOR A MODIFICATION OF CUSTODY BASED UPON LOSS OF EMPLOYMENT, PETITION SHOULD NOT HAVE BEEN DISMISSED, REMITTED FOR A CONTINUED HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition to modify the custody arrangement should not have been dismissed and the matter was remitted for a continued hearing. Father’s proof had made out a prima facie case based upon the loss of employment:

… [F]ather petitioned to modify the order of custody and parental access to remove the requirement that the parental access be professionally supervised at his expense, on the ground that he had recently lost his job and could not afford the cost of professional supervision. At a hearing on his petition, the father testified that he had lost his job in February 2016, a few months after the order of custody and parental access was made, and since that time, he had exercised parental access with the child on a limited basis due to the cost of professional supervision. He admitted that the cost of professional supervision was prohibitive even when he was employed but that, since losing his job, his parental access had further decreased. …

A party seeking modification of an existing custody or parental access 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 a motion to dismiss 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 father’s evidence as true and affording him the benefit of every favorable inference, the father presented sufficient prima facie evidence of a change of circumstances which might warrant modification of parental access in the best interests of the child. Matter of Gonzalez v Santiago, 2018 NY Slip Op 08652, Second Dept 12-19-18

 

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FATHER WAS NOT ADEQUATELY INFORMED OF THE CONSEQUENCES OF PROCEEDING WITHOUT AN ATTORNEY, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this neglect proceeding, determined father was not adequately informed of his right to an attorney:

… [A]lthough the Family Court repeatedly asked the father whether he wanted to represent himself, told him that he would have to follow the same legal rules as the other parties, and cautioned him generally against self representation, the court did so without detailing the dangers and disadvantages of proceeding pro se … . More specifically, the court failed to adequately warn the father of the risks inherent in proceeding without an attorney; failed to adequately apprise the father of the critical importance of having an attorney in a child neglect proceeding, particularly where there is a related criminal matter pending; failed to adequately explore the defendant’s age, education, occupation, previous exposure to legal procedures and other factors bearing on a competent, intelligent, voluntary waiver; and failed to ensure that the father acknowledged his understanding of the perils of self-representation. Because the court failed to conduct a sufficiently searching inquiry of the father to be reasonably certain that he understood the dangers and disadvantages of giving up the fundamental right to counsel, and thus failed to ensure that the father’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Family Court, Suffolk County, for a new hearing and a new determination, after a proper inquiry into the father’s understanding of the consequences of self-representation … . Matter of Alivia F. (John F.), 2018 NY Slip Op 08649, Second Dept 12-19-18

RIGHT TO COUNSEL

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FAMILY COURT’S TERMINATION OF MOTHER’S PARENTAL RIGHTS WAS NOT SUPPORTED BY THE EVIDENCE, MOTHER WAS DEALING WITH HER MENTAL HEALTH AND DRUG PROBLEMS AND THE SPECIAL NEEDS OF THE CHILDREN WERE BEING ADDRESSED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined that the proof requirements for the termination of parental rights were not met:

To establish that a parent has permanently neglected a child, an agency must demonstrate, by clear and convincing evidence, that the parent “failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child” (Social Services Law § 384-b[7][a]).

… The mother testified that she complied with all of the requirements that were communicated to her in order for the children to be returned to her care. According to the mother, these requirements included visiting with the children regularly, undergoing multiple mental health evaluations, consistently participating in mental health treatment, undergoing drug testing, completing parenting skills classes, visiting the children’s school as much as allowed, and keeping up with the children’s health status. The case files … generally supported the mother’s testimony … .

In light of the petitioner’s failure to adduce other evidence beyond the mother’s own testimony as to the initial reasons for the children’s removal from her care, the significance of the mother’s mental health diagnosis, or the significance of the special needs diagnoses of the children, there was no basis for a determination that the mother’s testimony on these subjects demonstrated a failure “to take such steps as may be necessary to provide an adequate, stable home and parental care for the child[ren] within a period of time which is reasonable under the financial circumstances available to the parent” … . Matter of Jaylen R.B. (Lisa G.)2018 NY Slip Op 08643, Second Dept 12-19-18

 

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CUSTODY SHOULD NOT HAVE BEEN TRANSFERRED TO FATHER AND ALL CONTACT BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN SUSPENDED WITHOUT A HEARING, JUDGE, SUA SPONTE, SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS FOR CUSTODY OR VISITATION BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court should not have transferred custody to father and suspended all contact between the child and mother for a year without conducting a hearing. The First Department further held that the judge should not have, sua sponte, prohibited mother from filing future petitions for custody or visitation without leave of court because no party requested that relief:

… [T]he court erred when, without holding an evidentiary hearing, it made a final order transferring physical and legal custody to the father and suspending all contact between the mother and the child for a year. Determination of the child’s best interests requires examination of the totality of the circumstances … . We have consistently held that “an evidentiary hearing is necessary before a court modifies a prior order of custody or visitation,” even where the court is familiar with the parties and child, and particularly where there are facts in dispute … . Furthermore, while we have stated that a hearing on modification of a custody arrangement in the child’s best interests “may be as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant. . . ,’ it must include an opportunity for both sides, and the children’s attorney when there is one, to present their respective cases, and the factual underpinnings of any temporary order [must be] made clear on the record'” … .

Here, the court made a final determination without taking any testimony or entering any documents into evidence. The court’s reliance on statements made by the ACS caseworker during a court conference was inappropriate, since the mother’s attorney had requested, but was denied, a full hearing at which counsel could have cross-examined the caseworker. Matter of Michael G. v Katherine C., 2018 NY Slip Op 08568, First Dept 12-13-18

 

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