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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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NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD’S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the proof did not support a finding that either parent had neglected the child. Apparently mother's boyfriend had spanked the child and bruising appeared over time. Mother had no reason to suspect her boyfriend would mistreat the child and the parents could not be faulted for not recognizing the significance of the bruising:

… [T]here was no evidence that the mother had any prior knowledge of the boyfriend's alleged propensity to mistreat the children, and there was no evidence that he had done so on any prior occasion. In fact, Sophia's medical records did not contain any indication of prior neglect, maltreatment, or abuse of any kind. As the DCFS's  [Dutchess County Department of Community and Family Service's] own expert testified at the hearing, “[Sophia] was a healthy little girl and this seemed to have happened out of the blue.” Under these circumstances, the mother did not neglect the children by leaving them in the boyfriend's care … .

Likewise, the mother's failure to recognize the significance of the pattern of bruising—which the medical expert conceded would not be apparent to a layperson—cannot be faulted. Moreover, the record supports both parents' position that the decision to wait until Tuesday morning to bring Sophia to the hospital was an acceptable course of action in light of all the surrounding circumstances (see Family Ct Act § 1012[f][i]…) Indeed, the medical evidence showed that no treatment was required for the bruising, and that both parents had promptly sought treatment for the unrelated ankle injury.

As for the father, the undisputed evidence showed that the bruising occurred before Sophia was brought to the father's residence for a weekend visit. Further, the evidence established that it was the mother—not the father—who had left the children in the boyfriend's care. When the father took custody of Sophia on Saturday, she did not appear to be in pain, and after monitoring her throughout the weekend, the father, in consultation with the mother, agreed that Sophia should be seen by her pediatrician on Monday. Matter of Alana H. (Caitlin M.), 2018 NY Slip Op 06534, Second Dept 10-3-18

FAMILY LAW (NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))/NEGLECT (FAMILY LAW, NEGLECT FINDING AGAINST MOTHER AND FATHER BASED UPON THE CHILD'S BRUISES NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT))

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PARTIES’ CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT).

The Second Department determined the parties' consent to a DNA test did not eliminate the need for a hearing on the vacation of the the acknowledgment of paternity on the basis of fraud:

On November 22, 1998, an acknowledgment of paternity was executed with respect to the subject child, which contained the signatures of the mother and the father. Seventeen years later, the father filed the instant petition to vacate the acknowledgment of paternity on the ground of fraud, alleging, inter alia, “I do not believe that I have ever executed an acknowledgment” of paternity. Although the parties consented to a DNA test, the Family Court proceeded to conduct a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. At the conclusion of the hearing, the court determined that the father failed to establish that the acknowledgment of paternity was fraudulently executed, and thus denied the father's petition. The father appeals.

Contrary to the father's contention, the parties' consent to a DNA test did not obviate the need for a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. Where, as here, a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, “Family Court Act § 516-a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact [in the execution of the acknowledgment of paternity] before ordering a [genetic marker test]” … . Matter of Andrew E. v Angela N.S., 2018 NY Slip Op 06530, Second Dept 10-3-18

FAMILY LAW (PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/FRAUD (FAMILY LAW, PATERNITY, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/PATERNITY (FRAUD, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))/DNA (PATERNITY, PARTIES' CONSENT TO A DNA TEST DID NOT ELIMINATE THE NEED FOR A HEARING TO DETERMINE WHETHER AN ACKNOWLEDGEMENT OF PATERNITY NEARLY 20 YEARS AGO WAS THE PRODUCT OF FRAUD, FAMILY COURT PROPERLY FOUND THAT FRAUD WAS NOT ESTABLISHED (SECOND DEPT))

VISITATION SHOULD NOT HAVE BEEN CONDITIONED ON CHILDREN’S CONSENT (FIRST DEPT).

The First Department, modifying Family Court, determined visitation should not have been conditioned on the children's consent:

… [V]isitation should not have been conditioned on the children's (ages 9 and 11) consent and the parties' agreement. Visitation is a joint right of the noncustodial parent, here the adoptive mother, and of the children … . Although the children have a fractured relationship with their adoptive mother, a reasonable visitation schedule should have been set with her. At a minimum, supervised visitation would have alleviated the children's concerns. Not only is it untenable for these parties to set up their own visitation schedule, there is an insufficient showing that visitation would be detrimental to the children. “A court may not delegate its authority to determine visitation to either a parent or a child” … . Consequently, we remand this matter so that Family Court can, at a minimum, establish an appropriate supervised access schedule for the great-grandmother with the children and for the allocation of any other suitable resources to restore their relationship. Matter of Cornell S.J. v Altemease R.J., 2018 NY Slip Op 06320, First Dept 9-27-18

FAMILY LAW (VISITATION SHOULD NOT HAVE BEEN CONDITIONED ON CHILDREN'S CONSENT (FIRST DEPT))/VISITATION (FAMILY LAW, VISITATION SHOULD NOT HAVE BEEN CONDITIONED ON CHILDREN'S CONSENT (FIRST DEPT))

OFFICE OF CHILDREN AND FAMILY SERVICES’ CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT).

The First Department found that the child maltreatment determination by the NYS Office of Children and Family Services (OCFS) was not indicated:

OCFS's determination that child maltreatment by petitioners was “indicated” is not supported by substantial evidence… . Petitioners were in compliance with the recommendations of the child's pediatrician during the period in question, and there is no evidence that their failure to seek regular visits with a hematologist or to administer a daily dose of penicillin to the child as a prophylaxis either impaired or risked imminently impairing the child's physical condition… . Medical records show that the child's hospitalizations in 2014 and a year later in 2015 were the result of a viral infection, which would not have been prevented by his seeing a hematologist regularly or taking penicillin, an antibiotic. After the 2015 hospitalization, the child's treating physician ratified a course of treatment that did not include a daily antibiotic. Further, petitioners' decision not to further vaccinate the child did not violate the pediatrician's directive … . Matter of Charles v Poole, 2018 NY Slip Op 06185, First Dept 9-25-18

FAMILY LAW (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))/CHILD MALTREATMENT (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))/OFFICE OF CHILDREN AND FAMILY SERVICES (OFFICE OF CHILDREN AND FAMILY SERVICES' CHILD-MALTREATMENT FINDING NOT SUPPORTED BY THE EVIDENCE (FIRST DEPT))

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NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT).

The Second Department noted that, in New York, an intentional infliction of emotional distress cause of action cannot be brought against a spouse or former spouse regarding event occurring during marriage:

New York does not recognize a cause of action alleging the intentional infliction of emotional distress between spouses or former spouses based upon allegations of events that occurred during the marriage … . In any event, the conduct complained of does not rise to the level of extreme and outrageous behavior required for a valid claim of intentional infliction of emotional distress … . Chen v Dehjung Deborah Wang, 2018 NY Slip Op 06076, Second Dept 9-19-18

FAMILY LAW (NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT))/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (FAMILY LAW, NEW YORK DOES NOT RECOGNIZE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST A SPOUSE OR FORMER SPOUSE STEMMING FROM EVENTS DURING THE MARRIAGE (SECOND DEPT))

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MOTHER’S PETITION FOR GUARDIANSHIP RE: SEEKING SPECIAL IMMIGRANT JUVENILE STATUS FOR HER SON SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PATERNITY HAD NOT BEEN ESTABLISHED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother's guardianship petition should not have been dismissed simply because paternity had not been established. Mother was seeking special immigrant juvenile status (SIJS) for her child:

… [M]other filed a petition … to be appointed the guardian of the subject child for the purpose of obtaining an order, inter alia, so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) … . In an order dated April 9, 2018, the Family Court dismissed the petition, without a hearing, on the ground that it failed to state a cause of action because the putative father's paternity had not been established. …

We disagree with the Family Court's determination to dismiss the petition, in which the mother sought to be appointed guardian of her child. A natural parent may be appointed guardian of his or her child (see Family Ct Act § 661[a]…), and the mere fact that paternity has not been established for the putative father does not preclude the mother's guardianship petition … .

Accordingly, since the Family Court dismissed the guardianship petition without conducting a hearing or considering the child's best interests, the matter must be remitted to the Family Court … for an expedited hearing and a new determination thereafter of the guardianship petition … . Matter of Olga L.G.M. (Santos T.F.), 2018 NY Slip Op 06093, Second Dept 9-19-18

FAMILY LAW (MOTHER'S PETITION FOR GUARDIANSHIP RE: SEEKING SPECIAL IMMIGRANT JUVENILE STATUS FOR HER SON SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PATERNITY HAD NOT BEEN ESTABLISHED (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, MOTHER'S PETITION FOR GUARDIANSHIP RE: SEEKING SPECIAL IMMIGRANT JUVENILE STATUS FOR HER SON SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PATERNITY HAD NOT BEEN ESTABLISHED (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY LAW, (MOTHER'S PETITION FOR GUARDIANSHIP RE: SEEKING SPECIAL IMMIGRANT JUVENILE STATUS FOR HER SON SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PATERNITY HAD NOT BEEN ESTABLISHED (SECOND DEPT))

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MOTHER’S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT).

The Second Department determined that mother's mental illness supported the neglect finding and an order requiring mother to cooperate with medication management by her mental health service providers:

Mental illness means “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act” (Social Services Law § 384-b[6][a]). “While parental neglect may be based on mental illness, proof of a parent's mental illness alone will not support a finding of neglect”… . Rather, the petitioner must adduce evidence sufficient to “establish a causal connection between the parent's condition, and actual or potential harm to the [child]” … .

… [T]the mother's contention that the Family Court acted in excess of its jurisdiction or violated her constitutional right to direct her own medical treatment when it directed that she comply with medication management recommended by her mental health service providers is without merit, since the court did not order the forcible administration of medication … . Matter of Nialani T. (Elizabeth B.), 2018 NY Slip Op 06019, Second Dept 9-12-18

FAMILY LAW (MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))

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ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT).

The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal:

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” … .

Thus, an appeal is academic “unless an adjudication of the merits will result in immediate and practical consequences to the parties” … .

The application of these principles to the facts of this case establish that the appeal is academic. In the order appealed from, the Family Court adjourned the proceedings in contemplation of dismissal until July 18, 2017. Where a proceeding is adjourned in contemplation of dismissal, and the proceeding is not restored to the calendar and no applications by the petitioner or the child's attorney or motions by the court to restore the proceeding to the calendar are pending, “the petition is, at the expiration of the adjournment period, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act 1039[f]). Thus, the petition has been dismissed, by operation of law and in the furtherance of justice… . Given that the appellants have received the exact relief they seek, any determination we might make in this matter would have no direct effect on the rights of the parties before us … . Matter of Priciliyana C. (Jacklyn L.), 2018 NY Slip Op 05927, Second Dept 8-29-18

APPEALS (ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/CRIMINAL LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/FAMILY LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))

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