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PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application to impose sanctions against defendant’s attorney for frivolous conduct should have have been granted:

… [T]he Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR 130-1.1. Although “[a]n agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability” … , the defendant, through her attorney, moved to set aside the prenuptial agreement contending, in effect, that there had been a novation such that the prenuptial agreement had been replaced by the affidavit of support. The defendant’s attorney provided no legal authority supporting this contention. Even though the court granted that branch of the plaintiff’s cross motion which was, in effect, to preclude the defendant from seeking to set aside the parties’ prenuptial agreement, the defendant’s attorney later attempted, at the nonjury trial, to question the plaintiff about the affidavit of support, arguing, in effect, that the affidavit of support replaced the prenuptial agreement. The defense then rested without presenting evidence.

The conduct of the defendant’s attorney was frivolous within the meaning of 22 NYCRR 130-1.1(c). The defendant’s attorney continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling. Moreover, that contention could not be supported by a reasonable argument for an extension, modification, or reversal of existing law, and the conduct of the defendant’s attorney appears to have been undertaken primarily to delay or prolong the resolution of the litigation … . Tamburello v Tamburello, 2018 NY Slip Op 06961, Second Dept 10-17-18

FAMILY LAW (PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/ATTORNEYS (SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/FRIVOLOUS CONDUCT (ATTORNEYS, SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))

PAYOR OF VOLUNTARY SPOUSAL SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the voluntary support and legal-obligations payments made by husband to wife should have been credited against the arrears owed by him:

Voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor spouse… . When the payor spouse relieves the other spouse from paying obligations for which the other spouse would be responsible, such payments must be considered as satisfying, in whole or part, maintenance and/or child support … . Here, the defendant is entitled to credits against his maintenance obligation as established in the judgment of divorce with regard to the plaintiff’s share of such expenses such as mortgage, real estate taxes, and automobile insurance payments … .

We disagree with the plaintiff’s contention that the defendant’s voluntary payments made pursuant to the preliminary conference order, which does not specifically enumerate the payments to be made, cannot qualify as “payments of pendente lite spousal maintenance actually made pursuant to Court Order.” The preliminary conference order, as so-ordered by the Supreme Court, plainly contemplated that the defendant would continue to make voluntary payments for the benefit of the plaintiff and the parties’ children. To deny the payor spouse a credit for payments made on account of the other spouse’s expenses would not only be inequitable by providing a windfall for the benefitted spouse, but it would also discourage voluntary support payments during the pendency of matrimonial actions and likely cause a precipitous rise of pendente lite motion practice by nonmonied spouses. Just as a party who unnecessarily prolongs a matrimonial action should not be rewarded, common sense dictates that a party who avoids unnecessary motion practice and preserves assets and time by agreeing to voluntarily pay the expenses of the other party should not be punished by being denied appropriate credits therefor. Stern v Stern, 2018 NY Slip Op 06959, Second Dept 10-18-18

FAMILY LAW (PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/SUPPORT (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/VOLUNTARY SUPPORT PAYMENTS (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/SPOUSAL SUPPORT (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/MAINTENANCE (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))

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ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, over an extensive dissent, determined that an adjudicated juvenile delinquent was not eligible for special immigrant juvenile status (SIJS):

On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the child) for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Specifically, the Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent. … [W]e agree with the Family Court’s determination and conclude that such a placement does not satisfy the requirement of dependency under the statute. * * *

We hold that the child herein is not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In fact, even while under probation, his encounters with the law persisted. In effect, the child attempts to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. We cannot fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court. Matter of Keanu S., 2018 NY Slip Op 06918, Second Dept 10-17-18

FAMILY LAW (ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)  ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/JUVENILE DELINQUENT (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT).

The Second Department, remitting the matter for a hearing on equitable estoppel in this paternity proceeding, determined that generic marker testing should not have been ordered without first resolving the equitable estoppel issue:

Family Court Act § 532 provides that, in a proceeding to establish paternity, “on the court’s own motion or the motion of any party, [the court] shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests” … . However, “no paternity test shall be ordered upon a written finding by the court that it is not in the best interests of the child on the basis of, inter alia, equitable estoppel” … . “Where a party to a paternity proceeding raises an issue of equitable estoppel, that issue must be resolved before any biological testing is ordered” … .

Here, the Family Court should not have directed the petitioner and the child to submit to genetic marker testing before resolving the issue of equitable estoppel … . We remit the matter … for a hearing on the issue of equitable estoppel. If, and only if, the court determines that equitable estoppel should not be applied based upon the child’s best interests, then the court should direct genetic marker or DNA tests and reach a determination thereon … . Matter of George C.S. v Kerry-Ann B., 2018 NY Slip Op 06917, Second Dept 10-17-18

FAMILY LAW (IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/PATERNITY (IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/GENETIC MARKER TESTING (IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/DNA (FAMILY LAW, IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))

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CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (SECOND DEPT).

The Second Department, remitting the matter for a hearing, determined that Family Court should not have granted mother's modification and violation petitions without holding a hearing:

Where a facially sufficient petition has been filed, modification of orders relating to custody and visitation generally require a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard … . A decision regarding child custody and parental access should be based on admissible evidence … . Here, in making its determination, the Family Court relied solely on information provided at court conferences, and the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by either party … . The court should have conducted a hearing to ascertain the child's best interests before it modified the … Order … . Matter of Migliore v Santiago, 2018 NY Slip Op 06911, Second Dept 10-17-18

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DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation of settlement in this divorce action controlled, and a domestic relations order (DRO) which did not conform to the stipulation could not be enforced:

“A stipulation of settlement that has been incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “A domestic relations order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment'” … .

Contrary to the plaintiff’s contention, the formula set forth in her proposed DRO conflicts with the stipulation of settlement, which provided for a “fifty/fifty division of all pension benefits accumulated from the date of this marriage … through the date of service of the summons and complaint … ,” and that the plaintiff is “to be the recipient of 50 percent of any and all benefits payable to the [defendant] upon his retirement which were accumulated during that period of time” … . The stipulation of settlement made no reference to the formula set forth in Majauskas v Majauskas (61 NY2d 481), nor can such a reference be implied from the unambiguous terms of the stipulation … . Since the stipulation is controlling, the Supreme Court should not have granted the plaintiff’s cross motion for leave to enter her proposed DRO … . McPhillips v McPhillips, 2018 NY Slip Op 06896, Second Dept 10-17-18

FAMILY LAW (DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))/DOMESTIC RELATIONS ORDER (DRO)  (DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))/STIPULATION OF SETTLEMENT (DIVORCE, DOMESTIC RELATIONS ORDER WHICH CONFLICTED WITH THE STIPULATION OF SETTLEMENT IN THIS DIVORCE ACTION COULD NOT BE ENFORCED (SECOND DEPT))

IT WAS IN THE BEST INTERESTS OF THE CHILD TO RESTRICT CONTACT WITH THE INCARCERATED FATHER TO TELEPHONE CALLS (SECOND DEPT).

The Second Department determined it was in the child's best interests to limit the incarcerated father's contact with the child to telephone calls:

The father had last seen the child in 2011 or 2012, when the mother and child visited the father in a detention facility in Brooklyn. The mother testified that the visit was “extremely stressful” for the child, the jail personnel asked the mother and the child to leave multiple times, and the child was unable to sit for any period of time. After the fact-finding hearing, the Family Court denied the father's petition, and, instead, directed that the father have telephone contact with the child. The father appeals.

The paramount concern in making a parental access determination is the best interests of the child, under the totality of the circumstances … . Parental access with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated … . However, that presumption may be rebutted by demonstrating, by a preponderance of the evidence, that under all the circumstances parental access would be harmful to the child's welfare, or that the right to parental access has been forfeited … . Here, there is a sound and substantial basis in the record for the Family Court's determination limiting the father's contact with the child to telephone communication. A preponderance of the evidence adduced at the fact-finding hearing demonstrated that in-person parental access at the prison would be harmful to the child's welfare … . Matter of Grimes v Pignalosa-Grimes, 2018 NY Slip Op 06740, Second Dept 10-10-18

FAMILY LAW (IT WAS IN THE BEST INTERESTS OF THE CHILD TO RESTRICT CONTACT WITH THE INCARCERATED FATHER TO TELEPHONE CALLS (SECOND DEPT))VISITATION (FAMILY LAW, IT WAS IN THE BEST INTERESTS OF THE CHILD TO RESTRICT CONTACT WITH THE INCARCERATED FATHER TO TELEPHONE CALLS (SECOND DEPT))

MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT).

The Second Department determined the maternal grandmother met the definition of a person legally responsible for the child's (Talia's) care, against who a neglect finding can properly be made:

Child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child's care … . A person legally responsible is defined as “the child's custodian, guardian, [or] any other person responsible for the child's care at the relevant time” (Family Court Act § 1012[g]). “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” … . However, “article 10 should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor or those persons who provide extended daily care of children in institutional settings, such as teachers” … .

Here, we agree with the Family Court's determination that the maternal grandmother was a person legally responsible for the children. The maternal grandmother came to the parents' home every day and slept over regularly, as many as two to three times per week. On the days that she did not sleep over, the maternal grandmother would come over in the morning and would stay until the paternal grandmother arrived in the afternoon. The maternal grandmother fed Talia, changed her diaper and her clothes, and, along with the mother, bathed Talia several times a week. The mother testified that the maternal grandmother took care of Talia while the mother played with Jonah, and the maternal grandmother was alone with Talia whenever the mother napped or did laundry, and that at least one to two times per week from Talia's birth until April 2014, the maternal grandmother was the only person caring for Talia. Matter of Jonah B. (Riva V.), 2018 NY Slip Op 06736, Second Dept 10-10-18

FAMILY LAW (MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT))/NEGLECT (FAMILY LAW, MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT))/PERSON LEGALLY RESPONSIBLE FOR THE CARE OF CHILD (FAMILY LAW, MATERNAL GRANDMOTHER WAS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF THE CHILD AND THEREFORE WAS SUBJECT TO A NEGLECT FINDING (SECOND DEPT))

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THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS ‘CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY’ (SECOND DEPT).

The Second Department, reversing Family Court, found that the child, Talia, was abused. Family Court had determined that Talia was not abused because her injuries did not meet the definition of serious physical injury as defined in the Penal Law. The Family Court Act criteria is “creating a substantial risk of serious injury:”

We agree with the Family Court's finding that Talia's injuries were “clearly inflicted and not accidental.” However, we disagree with the court's finding that Talia was not abused based on its determination that she had not sustained a serious physical injury as defined in Penal Law § 10.00(10). Although the definition of “abuse” under Family Court Act § 1012 is similar to the definition of “serious physical injury” under the Penal Law, the definitions are not identical. The Penal Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss of impairment of the function of any bodily organ” (Penal Law § 10.00[10]). However, under the Family Court Act, a “child need not sustain a serious injury for a finding of abuse as long as the evidence demonstrates that the parent sufficiently endangered the child by creating a substantial risk of serious injury” … .

Here, the fracture to Talia's humerus required her arm to be immobilized for more than two weeks, which is sufficient to establish a protracted impairment of health … . In addition, the medical testimony revealed that this injury caused Talia pain and discomfort, and could take months to heal. Furthermore, there was a concern that there could be loss of function and loss of growth potential. Although this was unlikely in Talia's case, since her fracture was not completely displaced, the conduct of the mother, the father, and the maternal grandmother still created a substantial risk that such injury could have occurred … . Matter of Jonah B. (Ferida B.), 2018 NY Slip Op 06735, Second Dept 10-10-18

FAMILY LAW (THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/ABUSE (FAMILY LAW, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/SERIOUS PHYSICAL INJURY (FAMILY LAW, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ABUSE, THE CRIMINAL LAW DEFINITION OF SERIOUS PHYSICAL INJURY IS NOT THE STANDARD FOR ABUSE IN FAMILY COURT, THE STANDARD IS 'CREATING A SUBSTANTIAL RISK OF SERIOUS INJURY' (SECOND DEPT))

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UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed Family Court's neglect finding in the interest of justice, in part because the finding relied on the uncorroborated hearsay testimony of the child:

… [T]he court determined that the mother neglected the children by forgetting to feed them, but the only evidence of such a danger is the uncorroborated out-of-court statement of one of the children. The mother failed to preserve for our review her contention that the court erred in relying on that child's uncorroborated statement … . Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice. Although “[i]t is well settled that there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child . . . where . . . the statements are corroborated” … , “repetition of an accusation by a child does not corroborate the child's prior account of [neglect]” … . Here, there was no corroboration of the one child's out-of-court statement, and thus the court erred in relying upon it to conclude that neglect occurred.

The court's further determination that the mother stopped taking her medication, and “that without . . . psychotropic medication [the] mother's mental health could rapidly deteriorate and she would endanger the safety and well-being of the children,” is belied by the testimony of the mother's counselor, the only witness who testified on that issue. The mother's counselor testified that the mother had been properly weaned off of those medications because they were impeding her functionality, and that the mother's ability to parent the children had increased after she successfully stopped taking those medications. Matter of Chance C. (Jennifer S.), 2018 NY Slip Op 06642, Fourth Dept 10-5-18

FAMILY LAW (UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, HEARSAY, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/HEARSAY (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (FAMILY LAW, UNCORROBORATED HEARSAY OF ONE OF THE CHILDREN SHOULD NOT HAVE BEEN RELIED UPON BY THE COURT, NEGLECT FINDING REVERSED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

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