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MOTHER’S PETITION TO HAVE HER CHILD RETURNED AFTER TEMPORARY REMOVAL SHOULD HAVE BEEN GRANTED, EVEN THOUGH THE CHILD HAD BEEN RETURNED AT THE TIME OF THE APPEAL, THE ISSUE IS NOT ACADEMIC BECAUSE OF THE STIGMA ASSOCIATED WITH REMOVAL OF A CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to have her child returned after removal should have been granted. The child had been removed because of concern the home was not safety-proofed. Mother demonstrated she had taken adequate steps to safety-proof the home. The court noted that, although the child had been returned, the appeal was not academic because of the stigma associated with removing the child:

“An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that the return presents an imminent risk to the child’s life or health'”… . The court must “weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal” … . “The court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests'”… .

Here, the record fails to provide a sound and substantial basis for the Family Court’s determination… . Any concerns that the parents’ substantial efforts to safety-proof their home were inadequate and subjected the child to possible risk of ingesting harmful substances did not amount to an imminent risk to the child’s life or health that could not have been mitigated by reasonable efforts to avoid removal. This is especially so under the circumstances of this case, where the petitioner had been directed to assist the family in safety-proofing the home and failed to do so … . Additionally, the mother presented evidence at the hearing establishing that she had taken substantial measures to safety-proof the home after the child was removed, and had taken the child to the doctor and dentist. Therefore, the evidence did not establish that the return of the child posed an imminent risk to his life or health, since the offending circumstances had been remedied … . Matter of Saad A. (Umda M.), 2018 NY Slip Op 08292, Second Dept 12-5-18

FAMILY LAW (MOTHER’S PETITION TO HAVE HER CHILD RETURNED AFTER TEMPORARY REMOVAL SHOULD HAVE BEEN GRANTED, EVEN THOUGH THE CHILD HAD BEEN RETURNED AT THE TIME OF THE APPEAL, THE ISSUE IS NOT ACADEMIC BECAUSE OF THE STIGMA ASSOCIATED WITH REMOVAL OF A CHILD (SECOND DEPT))/NEGLECT (MOTHER’S PETITION TO HAVE HER CHILD RETURNED AFTER TEMPORARY REMOVAL SHOULD HAVE BEEN GRANTED, EVEN THOUGH THE CHILD HAD BEEN RETURNED AT THE TIME OF THE APPEAL, THE ISSUE IS NOT ACADEMIC BECAUSE OF THE STIGMA ASSOCIATED WITH REMOVAL OF A CHILD (SECOND DEPT))/APPEALS (FAMILY LAW, MOTHER’S PETITION TO HAVE HER CHILD RETURNED AFTER TEMPORARY REMOVAL SHOULD HAVE BEEN GRANTED, EVEN THOUGH THE CHILD HAD BEEN RETURNED AT THE TIME OF THE APPEAL, THE ISSUE IS NOT ACADEMIC BECAUSE OF THE STIGMA ASSOCIATED WITH REMOVAL OF A CHILD (SECOND DEPT))

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FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court, determined that the custody determinations were not supported by the record and remitted the matter for further proceedings before a different judge. The decision is too fact-specific to fairly summarize here:

We agree with the mother that Family Court’s decision and order mischaracterizes and, at times, inaccurately reflects the record evidence and that, therefore, its determination lacks a sound and substantial basis in the record. …

… [T]he record evidence does not support Family Court’s depiction of the mother as “a hands-off parent who appears to pay little attention to the child’s needs when he is in her care” or its converse depiction of the father as a “devote[d]” parent with few, if any, flaws. Our review of the evidence reveals a more complicated picture than that portrayed by Family Court. …

… [T]he record evidence, including the father’s own admissions, completely contradicts Family Court’s conclusion that there was no support for the mother’s claim of substance abuse and domestic violence by the father. …

Family Court’s conclusion that there “was no credible evidence of domestic violence” by the father against the mother was also contradicted by the record. …

… Family Court misconstrued, mischaracterized and otherwise amplified the evidence to portray the mother in the light least favorable. …

Moreover, even if Family Court’s determination to award the father primary physical custody were supported by a sound and substantial basis, there was no basis for the severe reduction of the mother’s overall time with the child, particularly since the parties had previously shared 50/50 custody of the child … . Matter of Shirreece AA. v Matthew BB., 2018 NY Slip Op 08215, Third Dept 11-29-18

FAMILY LAW (FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT))/CUSTODY (FAMILY COURT’S CONCLUSIONS IN THIS CUSTODY MATTER WERE NOT SUPPORTED BY THE RECORD, MATTER REMITTED FOR PROCEEDINGS BEFORE A DIFFERENT JUDGE (THIRD DEPT))

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RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT). ​

The Third Department, reversing Family Court, determined that respondent did not receive effective assistance of counsel in this family offense proceeding:

Petitioner filed a family offense petition alleging that respondent harassed and stalked her. …

Viewing the record in its entirety, we agree with respondent’s argument that he was denied meaningful representation … .. Before the hearing, counsel did not engage in any discovery. At the hearing, counsel did not present an opening or closing statement. Nor did counsel object when Family Court questioned petitioner — who appeared pro se — and admittedly assisted her in establishing a foundation for two of her three photographic exhibits. Counsel asked questions of petitioner regarding those exhibits on voir dire, but objected to admission of only one of them, did not request that the court disregard petitioner’s handwritten notes on the exhibits, and did not object to the many hearsay statements made by petitioner. Counsel declined to cross-examine petitioner, at which point the court stated that she had established a prima facie case and did not need to call any further witnesses. Even though respondent had stated — while not under oath — that one of the photographs was taken when the parties were out together, rather than while petitioner was unaware of his presence, counsel did not call respondent or any other witnesses to testify. In short, counsel did almost nothing to assist his client. Matter of Wood v Rebich, 2018 NY Slip Op 08213, Third Dept 11-29-18

FAMILY LAW (ATTORNEYS, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/ATTORNEYS (FAMILY LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/FAMILY OFFENSE (ATTORNEYS, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, FAMILY OFFENSE, CRIMINAL LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, RESPONDENT WAS NOT AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL IN THIS FAMILY OFFENSE PROCEEDING, DEFENSE COUNSEL DID ALMOST NOTHING TO ASSIST HIS CLIENT, FINDINGS AND ORDER OF PROTECTION REVERSED (THIRD DEPT))

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TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT).

The Third Department, reversing Family Court, determined termination of father’s visitation was not supported by a sound and substantial basis in the record:

It is undisputed that the father engaged in physical violence and verbal abuse directed at the mother. Although the record demonstrates strong support for a change in circumstances and supervised visitation, the record lacks direct evidence that visitation is detrimental to the child; as such, it is presumed that it is in the child’s best interests to continue visitation … . Further, although the mother and maternal grandmother testified regarding concerns about the father’s sexual behavior, these concerns were based on hearsay and speculation from vulgar and inappropriate comments made by the father. Concern regarding abuse or potential abuse must have a basis in the record to justify denial of visitation; uncorroborated hearsay alone is not enough … . Notably, both the mother and the attorney for the child supported continued supervised visitation … . Thus, Family Court’s determination to terminate visitation lacks a sound and substantial basis in the record … . Matter of Boisvenue v Gamboa, 2018 NY Slip Op 08211, Third Dept 11-29-18

FAMILY LAW (VISITATION, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))/VISITATION (FAMILY LAW, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))/EVIDENCE (FAMILY LAW, VISITATION, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))/HEARSAY (FAMILY LAW, VISITATION, TERMINATION OF FATHER’S VISITATION RIGHTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, WHICH INCLUDED HEARSAY (THIRD DEPT))

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FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this child support and maintenance arrears proceeding, determined that father was never properly advised of his right to counsel by the support magistrate. It was not sufficient that father was told the matter could be adjourned to allow him to speak to an attorney or that father could get in touch with legal aid:

… [W]hen the father first appeared in the Family Court, the Support Magistrate informed him that he had the right to request an adjournment to hire or speak with an attorney, or he could proceed to represent himself. The father elected to proceed representing himself, and no further advisement or inquiry was made by the court. At the next appearance, the Support Magistrate indicated that she would give the father contact information for the Legal Aid Society of Orange County, but she did not advise the father of his right to have counsel assigned by the court if he was financially unable to retain counsel. Several months later, when the parties appeared for the fact-finding hearing, both pro se, the Support Magistrate again advised the father that he had the right to request an adjournment to hire or speak with an attorney, or he could waive that right and represent himself. The father stated that he would represent himself, no further advisement or inquiry was made, and the fact-finding hearing was held, with both parties proceeding pro se.

By representing himself, the father was necessarily forgoing the benefits associated with the right to counsel … . Although a party may waive the right to counsel and opt for self-representation, prior to permitting a party to proceed pro se, the court must conduct a “searching inquiry” to ensure that the party’s waiver is knowing, intelligent, and voluntary … . A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel … .

Here, the record demonstrates that the father was not advised of his right to assigned counsel, as required. Further, there is no indication that he validly waived his right to counsel. Under these circumstances, the father was deprived of his right to counsel and reversal is required, without regard to the merits of his position in the enforcement proceeding … . Matter of Gallousis v Gallousis, 2018 NY Slip Op 08129. Second Dept 11-28-18

FAMILY LAW (RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/WAIVER (RIGHT TO COUNSEL, FAMILY LAW, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/CHILD SUPPORT (RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))/MAINTENANCE  (RIGHT TO COUNSEL, FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT))

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CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT).

The Third Department, reversing Family Court, determined the child did not receive effective assistance of counsel in this proceeding to modify visitation. Mother sought to eliminate the scheduled visitation with father and allow the child to visit father as the child wished. Family Court denied the petition:

To effectively represent and protect a child’s interests, the attorney for the child’s role is twofold: (1) help the child express his or her wishes to the court, and (2) take an active role in the proceedings … . By meeting with the child and informing Family Court that the child did not want to continue visitation as ordered, and by requesting and participating in the Lincoln hearing, the trial attorney for the child met the first objective. Given the mother’s limited testimony, however, Family Court understandably characterized the record as “thin.” In our view, the attorney for the child should have taken a more active role in the proceedings by presenting witnesses that could speak to the child’s concerns and/or conducting a more thorough cross-examination of the mother. During his brief cross-examination of the mother, for example, the trial attorney for the child did not attempt to elicit any further information about his client’s behavior and demeanor relative to his visits with the father. On this record, we agree with the argument made by the appellate attorney for the child that the trial attorney for the child did not provide effective assistance. Consequently, the order dismissing the petition should be reversed and the matter remitted to Family Court for further proceedings, including a new fact-finding hearing. Matter of Payne v Montano, 2018 NY Slip Op 07990, Third Dept 11-21-18

FAMILY LAW (ATTORNEYS, CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))/ATTORNEYS (FAMILY LAW,  CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))

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FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined father had been denied his right to counsel in this modification of custody proceeding for the reasons explained in Matter of Hensley v DeMun, 163 AD3d 1100, 1101 [2018]:

For the reasons stated in Matter of Hensley v DeMun (supra) – the appeal by the father regarding Supreme Court’s resolution of the two petitions filed by the mother of the nonsubject child – we find that the father was denied the right to counsel, and we must therefore reverse and remit for further proceedings. Matter of DeMun v DeMun, 2018 NY Slip Op 07987,  Third Dept 11-21-18

FAMILY LAW (FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))/ATTORNEYS (FAMILY LAW, FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))

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APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that the appeal in this child neglect/temporary matter removal had been rendered moot by a disposition which returned the child and the exception to the mootness doctrine, which would allow consideration on appeal, did not apply. The dissent argued that the exception to the mootness doctrine was applicable:

Family Court … rejected respondent’s offer to consent to the continued removal without also admitting that the removal was “necessary to avoid imminent risk to the child’s life or health”… . Family Court made such a finding at the conclusion of the hearing and issued an order continuing the temporary removal. …

Following the issuance of the appealed-from order, respondent agreed to a resolution in which the violation petition was withdrawn, the neglect petition was adjourned in contemplation of dismissal and the child returned to respondent’s care. Contrary to her contention, these developments rendered her appeal moot…  She further argues that this case presents an issue that is “likely to recur, typically evades review, and raises a substantial and novel question” so as to fall within the exception to the mootness doctrine, pointing to Family Court’s refusal to allow her to waive the removal hearing and consent to the continued removal absent an admission of imminent risk … . Appeals from temporary removal orders are often rendered moot when the petition is disposed of before an appeal on the temporary order is decided … , but issues arising from such orders need not evade review considering the preference available for appeals from orders issued under Family Ct Act article 10 …  More importantly, the law is clear that any order of temporary removal must include a finding that removal “is necessary to avoid imminent risk to the child’s life or health” … . The contention that this requirement can be waived at respondent’s convenience is not “sufficiently substantial to warrant [invoking] the exception to the mootness doctrine” … .

From the dissent:

While we agree with the majority that this appeal is moot, we find that the exception to the mootness doctrine applies. The substantive issue presented is whether a respondent in a proceeding under Family Ct Act article 10, part 2 may consent to the temporary removal of his or her child. The record shows that Family Court interpreted both Family Court §§ 1022 and 1027 as requiring the court to make a factual finding that a child is in imminent danger before issuing a temporary removal order. That is certainly the case in a contested proceeding… . The distinct question here, however, is whether a parent may consent to the temporary removal, obviating the need for either an admission of wrongdoing or a hearing eliciting facts of imminent risk as required by Family Court. Given the court’s position, it is evident that the issue will readily recur in proceedings before that court. Moreover, appeals from temporary removal orders are routinely found to be moot because a disposition is reached before an appeal is decided … . Because the procedures surrounding the removal of children from their parents are manifestly of public importance, we consider the consent issue important to resolve. It also appears to be novel. As such, we are persuaded that the exception to the mootness doctrine should be applied … . Matter of Tyrell FF. (Jaquasisa GG.), 2018 NY Slip Op 07985, Third Dept 11-21-18

FAMILY LAW (APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))/APPEALS (FAMILY LAW, APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))/MOOTNESS DOCTRINE, EXCEPTION TO (APPEALS, FAMILY LAW, APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))

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FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was in the best interests of the child to free the child for adoption without the consent of father. Mother’s parental rights had terminated, but the court-appointed evaluator testified the relationship with father was positive and should not be terminated. The Second Department held that other evidence which supported freeing the child for adoption was not given sufficient weight:

“This Court will not disturb a Family Court’s determination regarding the best interests of the child unless it lacks a sound and substantial basis in the record” … . Here, the hearing court’s finding that it would be in the best interests of the child to remain in foster care instead of being freed for adoption lacks such a sound and substantial basis. The finding was based primarily on the opinions offered by the court-appointed evaluator, who recommended that the foster mother have custody of the child because she raised him since he was an infant, she has an “extremely close bond” with him, and she is able to take care of the child’s special needs. While the evaluator also opined that the child has a “very positive relationship” with the father, and that it would not be in the best interests of the child to sever that relationship by freeing the child for adoption, the evaluator conceded that the foster mother and the father view each other with “significant distrust,” that the child “hears conflicting information” from the foster mother and the father, that the child “senses their anger and conflict,” and that the conflict was “very stre not determinative … . Based on the record before us, we find that the hearing court gave undue weight to the evaluator’s conclusions with regard to the benefits of the child’s relationship with the father … and failed to accord sufficient weight to the impact on the child of long-term foster care, which would continue to expose him to the distrust between the foster mother and the father, and deprive the child of “a permanent, nurturing family relationship” …  .

Moreover, the Family Court did not give sufficient weight to testimony from the assigned case planner and the foster mother that the child repeatedly had contact with the birth mother during his visits with the father, in violation of the court’s directive precluding such contact with the birth mother. Similarly, the evaluator did not consider either the possibility that the father was exposing the child to the birth mother or the effects on the child of continued contact with the birth mother, information vital to assessing the best interests of the child. Matter of Jasiah T.-V. S.J. (Joshua W.–Shatesse J.), 2018 NY Slip Op 08020, Second Dept 11-21-18

FAMILY LAW (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/SOUND AND SUBSTANTIAL BASIS (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))

FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined father, who was incarcerated, had a fundamental right to be heard in the guardianship proceeding and shouild have been produced in court:

The order, after a hearing at which the father was neither present nor represented, and upon the mother’s consent, granted the petition of Krystle L. B. to be appointed permanent guardian of the subject child. …

An incarcerated parent has a fundamental right to be heard in a proceeding impacting the care and control of his or her child … . Here, the incarcerated father’s rights were violated when the Family Court elected to hear and determine the guardianship petition without producing the father in court or affording him an opportunity to be heard.

Accordingly, we reverse the order appealed from, and remit the matter … for a hearing at which the father’s constitutional right to be heard will not be abridged and a new determination thereafter on the guardianship petition. Matter of Krystle L.B. v Crystal L.W., 2018 NY Slip Op 08019, Second Dept 11-21-18

FAMILY LAW (FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT))/GUARDIANSHIP (FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT))

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