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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))

COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER’S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT).

The Fourth Department, in affirming the denial of mother's petition to relocate, determined the portion of the order which provided that father would automatically be granted custody upon mother's relocation:

… [The] court erred in including a provision in the order that transferred primary physical custody of the child from the mother to the father in the event that the mother relocates outside of Monroe County, and we therefore modify the order accordingly. Such a provision, “while possibly never taking effect, impermissibly purports to alter the parties' custodial arrangement automatically upon the happening of a specified future event without taking into account the child['s] best interests at that time” … . Matter of Eason v Bowick, 2018 NY Slip Op 06641, Fourth Dept 10-5-18

FAMILY LAW (COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT))/RELOCATE, PETITION FOR (FAMILY LAW, COURT IMPROPERLY INCLUDED A PROVISION IN THE ORDER DENYING MOTHER'S PETITION TO RELOCATE WHICH WOULD AUTOMATICALLY AWARD CUSTODY TO FATHER IF MOTHER RELOCATES (FOURTH DEPT))

FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined primary physical custody of the children should not have been awarded to the maternal grandmother because the proceedings were flawed:

“[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … . “The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, the prior order granting custody of the child to [the] nonparent[] was made upon consent of the parties' ” … .

Here, the court erred in granting the grandmother's petition prior to the completion of the hearing. The mother's testimony was not complete, the grandmother had not yet rested, and the mother had not been afforded the opportunity to call witnesses or present other evidence on her own behalf. In addition, there were controverted issues inasmuch as there is no evidence in the record of the mother's mental health other than her erratic in-court conduct, which she attributed to the trauma of being separated from her children, and there is no evidence whatsoever that the mother was abusing drugs or alcohol. Indeed, she denied abusing alcohol. We conclude that the court should have completed the hearing. Matter of Driscoll v Mack, 2018 NY Slip Op 06640, Fourth Dept 10-5-18

FAMILY LAW (FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD HAVE COMPLETED THE HEARING, AWARD OF PRIMARY PHYSICAL CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER REVERSED (FOURTH DEPT))

FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT). ​

The Fourth Department determined father could not be found to have permanently neglected the children and also found to be mentally ill to a degree warranting termination of his parental rights:

Given the court's finding that the father was incapable of caring for the children based on his mental illness, however, the court erred in terminating his parental rights on the additional ground of permanent neglect. The father “could not be found to be mentally ill to a degree warranting termination of his parental rights and at the same time be found to have failed to plan for the future of the children although physically and financially able to do so” … . We therefore modify the order by dismissing the petition insofar as it alleges that the father permanently neglected the subject children. Matter of Norah T. (Norman T.), 2018 NY Slip Op 06681, Fourth Dept 10-5-18

FAMILY LAW (PARENTAL RIGHTS, FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))/PARENTAL RIGHTS (FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))/NEGLECT (FAMILY LAW, PARENTAL RIGHTS, FATHER COULD NOT BE FOUND TO HAVE PERMANENTLY NEGLECTED THE CHILDREN AND ALSO BE FOUND MENTALLY ILL TO A DEGREE WARRANTING TERMINATION OF HIS PARENTAL RIGHTS (FOURTH DEPT))

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APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY CASE (FOURTH DEPT).

The Fourth Department, holding the appeal in reserve, sent the matter back for factual findings in this custody case:

With respect to the court's award of sole legal custody to the mother, we conclude that the court failed to set forth ” those facts upon which the rights and liabilities of the parties depend' “… , specifically its “analysis of those factors that traditionally affect the best interests of a child” … . “[E]ffective appellate review . . . requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses”… . We therefore hold the case, reserve decision and remit the matter to Family Court to set forth its factual findings. Matter of Valentin v Mendez, 2018 NY Slip Op 06680, Fourth Dept 10-5-18

FAMILY LAW (APPEALS, APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY MATTER (FOURTH DEPT))/APPEALS (FAMILY LAW, APPEAL HELD IN RESERVE AND MATTER SENT BACK FOR FACTUAL FINDINGS IN THIS CUSTODY MATTER (FOURTH DEPT))

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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding:

We agree with respondents that petitioner failed to establish by a preponderance of the evidence “that [the children's] physical, mental or emotional condition[s have] been impaired or [are] in imminent danger of becoming impaired” (… see Family Ct Act § 1012 [f] [i]). Although the evidence adduced at the fact-finding hearing established that respondents used illicit drugs, the mere use of illicit drugs is insufficient to support a finding of neglect … , and we conclude that petitioner failed to establish the requisite causal nexus between respondents' illicit drug use and the alleged impairment or imminent danger of impairment of the children's physical, mental, or emotional condition … . Petitioner produced no evidence that respondents ever used drugs in the presence of the children … . Moreover, although the younger child suffered two accidents, each of which resulted in a fractured wrist, petitioner offered no evidence that respondents were using drugs or under the influence of drugs at the time the accidents occurred, respondents' innocent explanations for the accidents were uncontroverted at the fact-finding hearing, and there was no evidence of any impairment or imminent danger of impairment to the older child arising from respondents' alleged drug use. We further conclude that petitioner failed to establish a prima facie case of neglect by submitting evidence that respondents used drugs “to the extent that [such use] has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality” (§ 1046 [a] [iii]). Absent from the record was any evidence as to the duration or frequency of respondents' drug use … . Matter of Delanie S. (Jeremy S.), 2018 NY Slip Op 06677, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support a drug-related neglect finding against father:

We agree with the father that the court's finding of neglect is not supported by the requisite preponderance of the evidence (see generally Family Ct Act § 1046 [b] [i]). “[P]roof that a person repeatedly misuses . . . drugs . . . to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug . . . misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program” … . Here, petitioner submitted evidence that the father tested positive for THC, oxycodone, and opioids on one occasion, which is insufficient to establish that the father repeatedly misused drugs … . The father's admission to using marihuana was also insufficient to meet petitioner's burden without further evidence as to the “duration, frequency, or repetitiveness of his drug use, or whether [the father] was ever under the influence of drugs while in the presence of the subject child” … . Matter of Bentley C. (Zachary D.), 2018 NY Slip Op 06667, Fourth Dept 10-5-18

FAMILY LAW (DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (FAMILY LAW, DRUG-RELATED NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER’S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT).

The First Department determined Family Court should not have ruled on mother's petition to modify custody without holding a hearing. In addition the First Department noted that Family Court improperly relied solely upon the child's wishes and unsworn documentary evidence:

Family Court improperly determined the mother's modification petition and the father's petitions for enforcement, parenting time modification, and sole custody by suspending all contact between the father and child without a hearing … . Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency … . We have held that a hearing may be “as abbreviated, in the court's broad discretion, as the particular allegations and known circumstances warrant” … . However, here, the court granted the drastic remedy of suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child's treating therapist and from therapists who had seen the parties and child for family therapy … . Matter of Kenneth J. v Lesley B., 2018 NY Slip Op 06625, First Dept 10-4-18

FAMILY LAW (CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))

PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined that mother's petition to modify a visitation order should not have been denied without a hearing:

” A party seeking to modify a prior visitation order must show that there has been a sufficient change in circumstances since the entry of the order such that modification is warranted to further the [child]'s best interests'” … . The best interests of the child must be determined by a review of the totality of the circumstances… , and “[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child” … . “Generally, where a facially sufficient petition has been filed, modification of a Family Ct Act article 6 custody and visitation order requires 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 visitation should be based on admissible evidence …

Here, the Family Court should not have, without a hearing, in effect, denied the mother's petition and limited the mother to parental access with the child supervised by the YWCA … . Matter of King v Peters, 2018 NY Slip Op 06538, Second Dept 10-3-18

FAMILY LAW (PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT))/VISITATION (FAMILY LAW, PETITION TO MODIFY VISITATION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT))

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