You are here: / Family Law
, ,

FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT).

The Fourth Department reversed Family Court’s custody ruling because the ruling was not supported by factual findings. The matter was remitted:

It is “well established that the court is obligated to set forth those facts essential to its decision’ ” (…see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court utterly failed to follow that well-established rule inasmuch as it made no findings to support its determination. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the order, reinstate the mother’s petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Brown v Orr, 2018 NY Slip Op 07905, Fourth Dept 11-16-28

FAMILY LAW (CUSTODY, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/APPEALS (FAMILY LAW, CUSTODY, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))

,

EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT).

The Second Department determined the evidence did not support the finding that mother neglected the child by failing to provide adequate shelter:

We agree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother failed to provide the child with proper supervision and guardianship. The evidence demonstrated that she placed the child in near proximity to narcotics and to the very dangerous activity of narcotics trafficking, which posed an imminent danger to the child’s physical, mental, and emotional well-being… .

However, we disagree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother neglected the child by failing to supply the child with adequate shelter based on the unsanitary conditions of the home. While the evidence adduced at the fact-finding hearing demonstrated that the home was in a general state of disarray, it did not establish unsanitary or unsafe conditions such that the child’s physical, mental, or emotional condition was impaired or in imminent danger of impairment … . Matter of Majesty M. (Brandy P.), 2018 NY Slip Op 07726, Second Dept 11-14-18

FAMILY LAW (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/NEGLECT (EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))

,

FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT).

The Second Department determined Family Court should not have left it to the parties to work out mother’s supervised therapeutic parental access:

Here, the Family Court’s determination that there had been a change in circumstances and that it was in the children’s best interests to award the father sole legal and residential custody, with the mother’s access limited to supervised therapeutic parental access is supported by a sound and substantial basis in the record and, thus, will not be disturbed … .

However, the Family Court should have set forth in its order a schedule and designated a provider for supervised therapeutic parental access, rather than implicitly delegating the resolution of those issues to the parties … . Accordingly, we remit the matter to the Family Court, Orange County, to forthwith set an appropriate schedule and select a provider for the mother’s supervised therapeutic parental access with the children. Matter of Thomas R.K. v Tamara S.K., 2018 NY Slip Op 07725, Second Dept 11-14-18

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT))/JUDGES (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT))/DELEGATION OF JUDICIAL DUTIES (FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT))

,

LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT).

The Second Department affirmed Family Court’s denial of father’s petition for downward modification of maintenance and support and the rejection of father’s claim he was denied effective assistance of counsel. The court noted that father did not demonstrate he was not at fault for losing his job and that, because father did not have a right to counsel for these proceedings, he was required to show extraordinary circumstances in support of his ineffective assistance claim:

A party seeking a downward modification of his or her spousal maintenance and child support obligations set forth in a judgment of divorce must establish a substantial change in circumstances … . Loss of employment may constitute a substantial change in circumstances where the termination occurred through no fault of the party seeking modification and he or she diligently sought re-employment commensurate with his or her earning capacity… . Here, the father failed to establish that the termination of his employment did not occur though his own fault … , or that he diligently sought new employment commensurate with his qualifications and experience. Accordingly, we agree with the Family Court’s denial of the father’s objections to the Support Magistrate’s finding that the father was not entitled to a downward modification of his support obligations… .

The father contends that he was deprived of the effective assistance of counsel. Since the father did not have the right to assigned counsel in this support modification proceeding… , he must establish the existence of extraordinary circumstances in order for his claim of ineffective assistance of counsel to be entertained… . Here, the father failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim … . Matter of Berg v Berg, 2018 NY Slip Op 07720, Second Dept 11-14-18

FAMILY LAW (MAINTENANCE, SUPPORT, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/MAINTENANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/SUPPORT FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/ATTORNEYS (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/RIGHT TO COUNSEL (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))

ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the Family Court judge exhibited bias against the father in this maintenance and support arrears proceeding and the matter was remitted to Family Court before a different judge. Although father had completed the period of incarceration imposed, the commitment order was deemed appealable because of the stigma attached to violating support obligations. The court noted that father should have pbjected and moved to recuse the judge to preserve the bias claim, but the court considered the argument in the interest of justice:

“[W]hen a claim of bias is raised, the inquiry on appeal is limited to whether the judge’s bias, if any, unjustly affected the result to the detriment of the complaining party'” … . Here, the record reflects that when the parties appeared before the Family Court Judge, the Judge took an adversarial stance toward the father and made numerous improper remarks to him … . The Judge told the father, among other things, that he “symbolizes everything that’s wrong with the world today,” and that he was “[s]elfish, self-interested, [and] self-seeking.” The Judge repeated similar remarks multiple times during the proceeding. The Judge also called the father “lazy” and “arrogant,” and remarked that he was “the last guy that [the Judge would] want to be in a fox hole with” because he would “fold like a cheap suit.” The Judge compared the father’s accumulation of arrears to “an arsonist that starts a fire that kills one person, that kills ten.” Additionally, the Judge made the matter personal by comparing the father’s experiences to the Judge’s own. For instance, the Judge described his own past misfortune, and detailed how he picked himself up to became a judge. At the conclusion of the proceeding, the Judge committed the father to four times the period of incarceration recommended by the Support Magistrate. Under the circumstances, the bias of the Family Court Judge apparently unjustly affected the result of the proceeding to the detriment of the father. Matter of Berg v Berg, 2018 NY Slip Op 07719, Second Dept 11-14-18

FAMILY LAW (JUDICIAL BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/JUDGES (BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (JUDICIAL BIAS, PRESERVATION, ACADEMIC APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/STIGMA (APPEALS, FAMILY LAW, ACADEMIC APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/INTEREST OF JUSTICE  (JUDICIAL BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/BIAS (JUDGES, FAMILY LAW, APPEALS, , ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))

DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT).

The First Department, remanding the matter for a hearing in Family Court, noted that the final custody order did not make any provision for visitation:

… [T]he final custody order did not make any provision for visitation, and the father’s pro se motion explicitly sought visitation with the child. Family Court implicitly denied this request without providing any rationale. Visitation is a joint right of the child and noncustodial parent and, absent “exceptional circumstances,” it “follows almost as a matter of course,” and is presumed to be in the child’s best interest … . The record of the custody hearing established that the father had regular unsupervised and overnight visitation with the child throughout the prolonged custody proceedings, although there were some late pickups and missed visits in the months before the custody order was issued. We note the child’s attorney represents that the child strongly wishes to resume visits with the father … . Matter of Jolanda K. v Damian B., 2018 NY Slip Op 07675, First Dept 11-13-18

FAMILY LAW (VISITATION, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))/VISITATION (FAMILY LAW, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))

FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined that, although father left his job in Virginia voluntarily, his petition to modify his support after taking a lower-paying job in New York should have been granted. Father left the better paying job to be closer to his son, who had recently moved with his mother from Virginia to New York:

“It is well settled that a loss of employment may constitute a change in circumstances justifying a downward modification of [child support] obligations where [such loss] occurred through no fault of the [party seeking modification] and the [party] has diligently sought re-employment” … . As a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment… . Nevertheless, that general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child … . As one court has explained, a “parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent attempting to do the right thing for his [or her] children. To punish such a parent by requiring higher child support . . . is neither good law nor good policy” … . Matter of Parmenter v Nash, 2018 NY Slip Op 07553, Fourth Dept 11-9-18

FAMILY LAW (SUPPORT, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))/SUPPORT (FAMILY LAW, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))

,

FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT).

The Second Department determined Family Court properly found Dennis T was a person legally responsible for the child Steven L. The court agreed with Family Court’s finding of abuse against three persons using the Family Court Act evidence rule analogous to res ipsa loquitur:

“A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care’ if that person acts as the functional equivalent of a parent in a familial or household setting”… . “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . “Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court in determining whether a respondent fits within the catch-all category of section 1012 (g)” … . * * *

Section 1046(a)(ii) of the Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred” … . “In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together” … . “[Once] the petitioner establishes a prima facie case of abuse the burden of going forward shifts to respondents to rebut the evidence of . . . culpability, although the burden of proof always remains with the petitioner” … . Matter of Unity T. (Dennis T.), 2018 NY Slip Op 07437, Second Dept 11-7-18

FAMILY LAW (ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/ABUSE (FAMILY LAW, EVIDENCE,  FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/EVIDENCE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/PERSON LEGALLY RESPONSIBLE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))

,

PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the proceeding which led to the revocation of appellant’s Adjournment in Contemplation of Dismissal (ACD) and adjudging him a person in need of supervision (PINS) was fatally flawed because appellant was never informed of his right to remain silent:

Although the appellant’s term of custody has expired by the terms of the order appealed from, the order is not academic in light of the enduring consequences which might flow from the finding that the appellant violated the terms of the ACD order … .

Family Court Act § 741(a) provides, in relevant part: “[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent’s right to remain silent” … . The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel … or fails to seek to withdraw his or her admissions based on the failure … .

Here, the Family Court never apprised the appellant of his right to remain silent—not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing … , addressing the alleged violation of the ACD order. The court’s failure to advise the appellant of his right to remain silent cannot be considered harmless error … , as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order must be reversed … . Matter of Tyler D., 2018 NY Slip Op 07427, Second Dept 11-7-18

FAMILY LAW (PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/PERSON IN NEED OF SUPERVISION (PINS) (PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/CONSTITUTIONAL LAW (FAMILY LAW, RIGHT TO REMAIN SILENT, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/RIGHT TO REMAIN SILENT (FAMILY LAW, PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))

,

FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should amend its Special Immigrant Juvenile Status (SIJS) order to address the reasons for the revocation of the initial approval of the petition by the US Citizenship and Immigration Services (USCIS):

The child moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition for SIJS. … [T]he Family Court granted the child’s motion.

Thereafter, the child submitted an I-360 petition for SIJS to USCIS. Although the I-360 petition was initially approved, USCIS thereafter advised the child of its intention to “revoke the approval” based upon certain deficiencies in the special findings order. The child then moved to amend the special findings order to address the deficiencies, and the father joined in the motion. In an order dated February 26, 2018, the Family Court denied the motion to amend the special findings order. …

Under the circumstances presented, we deem it appropriate to amend the special findings order to clarify that the basis for the Family Court’s exercise of jurisdiction over this custody proceeding is under New York State law pursuant to Family Court Act § 651(a). We also deem it appropriate to amend the special findings order to specify that it would not be in the best interests of the child to be returned to El Salvador because the mother is unable to protect the child from harm by gang members in El Salvador, who have made threats of violence against him … . Matter of Argueta v Santos, 2018 NY Slip Op 07424, Second Dept 11-7-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy