Family Law – Page 87 – New York Appellate Digest

ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department, reversing Family Court, determined that although mother violated the terms of her suspended judgment, her parental rights should not have been terminated without a finding, based upon a hearing, that termination was in the best interests of the child:

A suspended judgment is intended to provide a parent who has permanently neglected his or her child with a brief period within which to become a fit parent that the child can be returned to in safety … . “A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights”… .

Family Court determined, and we agree, that numerous violations of the terms of the suspended judgment were established by a preponderance of the evidence. …

… [V]iolations that could warrant a revocation of the suspended judgment and termination of parental rights do not automatically have that effect… . It is instead the best interests of the child, which is “relevant at all stages of a permanent neglect proceeding, including at the revocation of a suspended judgment,” that determines the appropriate disposition … . Family Court did not make a best interests finding and, absent hearing evidence relating to “the child[]’s present circumstances and relationship with [respondent] and the effect upon the[] [child] of the termination of [respondent’s] parental rights and [the child’s] potential adoption,” it is unclear how Family Court could have done so … . Matter of Cecilia P. (Carlenna Q.), 2018 NY Slip Op 04993, Third Dept 7-5-18

FAMILY LAW (PARENTAL RIGHTS, ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/PARENTAL RIGHTS (ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/SUSPENDED JUDGMENTS (FAMILY LAW, PARENTAL RIGHTS, ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))/NEGLECT (FAMILY LAW, PARENTAL RIGHTS, ALTHOUGH MOTHER VIOLATED THE TERMS OF HER SUSPENDED JUDGMENT, FAMILY COURT SHOULD NOT HAVE TERMINATED HER PARENTAL RIGHTS WITHOUT A FINDING, BASED UPON A HEARING, THAT TERMINATION WAS IN THE BEST INTERESTS OF THE CHILD (THIRD DEPT))

July 5, 2018

COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT).

The Second Department determined the court attorney referee was not authorized to determine a contested family offense petition or custody and visitation issues:

A referee derives authority from an order of reference by the court (see CPLR 4311, 4317…). Here, as correctly asserted by the mother, the order of reference did not authorize the Court Attorney Referee to hear and report or to hear and determine a contested family offense petition. The Court Attorney Referee therefore lacked jurisdiction to dismiss the mother’s family offense petition in this instance… . Accordingly, the family offense matter must be remitted to a judge of the Family Court for a new determination.

With respect to the determination of custody, the order of reference recited that, upon the parties’ stipulation, a court attorney referee is authorized to hear and determine the parties’ rights to custody of and visitation with the child, including the determination of motions and temporary orders of custody. Upon our review of the record, however, we find no indication that the parties stipulated to the reference in the manner prescribed by CPLR 2104, and, absent such stipulation, the Court Attorney Referee had the power only to hear and report her findings … . We further find that the mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge … . The order of reference must therefore be deemed an order to hear and report. Thus, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective rights of custody and visitation … . Matter of Rose v Simon, 2018 NY Slip Op 04736, Second Dept 6-27-18

FAMILY LAW (COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/CIVIL PROCEDURE (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/CPLR 4311, 4317, 2104 (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/COURT ATTORNEY REFEREE (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/REFEREES (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))

June 27, 2018

Family Law

AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT).

The First Department, in a full-fledged, comprehensive opinion by Justice Gische, determined the issue of whether KG, on equitable estoppel grounds, had standing to seek custody of a child adopted by her former same-sex partner, CH, required remittal because the issue was not considered by Supreme Court. The couple had an agreement to raise an adopted child. The First Department found ample support in the record for Supreme Court’s factual finding that the agreement was terminated when the couple’s relationship dissolved before the child was adopted. The fact that the agreement was deemed terminated did not, however, prohibit the court from considering whether CH was equitably estopped from denying that KG had standing to seek custody:

Although prior to Brooke [28 NY3d 1] the doctrine of equitable estoppel was not available to establish standing on behalf of nonbiological, nonadoptive parents, it has been relied upon by New York courts in resolving many family disputes involving children. For instance, the legal doctrine has been applied to prevent an adult from denying paternity where a child has justifiably relied upon the representations of a man that he is the father and a parent-child relationship has developed … ,It has also been applied to prevent a biological father from asserting paternity when he has acquiesced in the establishment of a strong parent-child bond between the child and another man … . Recently, it was successfully invoked to prevent a sperm donor from asserting paternity to a child born in an intact marriage … . A unifying characteristic of these cases is the protection of ” the status interests of a child in an already recognized and operative parent-child relationship'” … . Equitable estoppel requires careful scrutiny of the child’s relationship with the relevant adult and is ultimately based upon the best interest of the child … . Likewise, in the context of standing under Domestic Relations Law § 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child … . It is for this reason that the child’s point of view is crucial whenever equitable estoppel is raised. * * *

We recognize that not every loving relationship that a child has with an adult will confer standing under Domestic Relations Law § 70, no matter how close or committed. It requires a relationship that demonstrates the relevant adult’s permanent, unequivocal, committed and responsible parental role in the child’s life. The underpinning of an equitable estoppel inquiry is whether the actual relationship between the child and relevant adult rises to the level of parenthood. Anything less would interfere with the biological or adoptive parent’s right to decide with whom his or her child may associate … . Consent, whether express or implied, is an important consideration that bears upon the issue. It may be that in this case the issue of CH’s consent becomes a predominant consideration in the ultimate determination of whether equitable estoppel can be established. We only hold that the record developed at trial does not permit us to make the full consideration necessary to finally determine the issue of equitable estoppel at this point

Because the record on equitable estoppel is incomplete, we remand this matter for further proceedings consistent with this decision. Matter of K.G. v C.H., 2018 NY Slip Op 04683, First Dept 6-26-18

FAMILY LAW (AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/CUSTODY (/PAREAN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/STANDING (FAMILY LAW, CUSTODY, PARENT, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/PARENT (CUSTODY, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/SAME-SEX PARTNERS (FAMILY LAW, PARENT, CUSTODY, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/ADOPTION (PARENT, SAME-SEX PARTNERS, CUSTODY, STANDING, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))/DOMESTIC RELATIONS LAW (PARENT, SAME-SEX PARTNERS, CUSTODY, STANDING, AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX PARTNER, WITH WHOM SHE HAD AN AGREEMENT TO ADOPT A CHILD, HAS STANDING TO SEEK JOINT CUSTODY, MATTER REMITTED FOR PRESENTING EVIDENCE ON AND CONSIDERATION OF THAT ISSUE (FIRST DEPT))

June 26, 2018

Administrative Law, Family Law

ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, over an extensive dissenting opinion, determined that the administrative law judge’s (ALJ’s) marking a NYC Administration for Children’s Services (ACS) report as “indicated” for maltreatment of petitioner’s (Natasha’s) child had a rational basis. Natasha had used her five-year-old child as a pawn in a shoplifting scheme. Natasha had an unblemished record and was pursuing a degree in early childhood education. The “indicated” designation will probably make it impossible for Natasha to find work in the childhood education field:

… [I]t was rational for the Administrative Law Judge to have concluded that the child was placed in imminent risk of impairment, constituting maltreatment … , and that petitioner’s actions are reasonably related to employment in the childcare field… ). The act in question — specifically, using the child as a pawn in a shoplifting scheme — “was sufficiently egregious so as to create an imminent risk of physical, mental[,] and emotional harm to the child” … . There is imminent potential for physical confrontation during a theft from a department store monitored by security. Moreover, … under the circumstances presented here, “utilizing a child to commit a crime and teaching a child that such behavior is acceptable must have an immediate impact on that child’s emotional and mental well-being,” particularly where, as here, the child is “young [and] just learning to differentiate between right and wrong” … . Likewise, the Administrative Law Judge rationally concluded that petitioner’s actions are reasonably related to employment in the childcare field “[a]s a matter of common sense” … . Matter of Natasha W. v New York State Off. of Children & Family Servs., 2018 NY Slip Op 04379, CtApp 6-14-18

FAMILY LAW (CHILD MALTREATMENT, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATIVE LAW (FAMILY LAW, CHILD MALTREATMENT, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATION OF CHILDREN’S SERVICES ( ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/MALTREATMENT (FAMILY LAW, CHILDREN, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))

June 14, 2018

Family Law, Social Services Law

TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP).

The Court of Appeals, reversing the Appellate Division, in a brief memorandum decision, determined the petitioner agency did not meet its burden of demonstrating father, who was incarcerated, had abandoned his child:

An order terminating parental rights may be entered upon the ground that a child’s parent “abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court” … . A child is “abandoned” within the meaning of Social Services Law § 384-b, if the “parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency” … . Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary … .

The petitioner agency bears the burden of proving abandonment by clear and convincing evidence… . Here, petitioner’s caseworker testified that respondent—who was incarcerated—did not visit with the child or communicate with the caseworker or other agency personnel in the six months preceding the filing of the abandonment petition. However, the record is bereft of evidence establishing that respondent failed to communicate with the child, directly or through the child’s foster parent, during the relevant time period. Thus, petitioner did not meet its burden of demonstrating, by clear and convincing evidence, that respondent abandoned the child. Matter of Mason H. (Joseph H.), 2018 NY Slip Op 04384, CtApp 6-14-18

FAMILY LAW (PARENTAL RIGHTS, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/PARENTAL RIGHTS (TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/ABANDONMENT (FAMILY LAW, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/TERMINATION OF PARENTAL RIGHTS (ABANDONMENT, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))

June 14, 2018

Family Law, Immigration Law

FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT).

The Second Department ruled that Family Court should have held a hearing to determine whether the child could be reunited with his mother in order to further determine whether to make the findings necessary for the child to apply for special immigrant juvenile status (SIJS):

… [B]ased upon our independent factual review … , we find that the record establishes that the child meets the age and marital status requirements for special immigrant status, and the dependency requirement has been satisfied by the granting of the father’s guardianship petition … . Further, we determine that it would not be in the best interests of the child to be returned to El Salvador, where gang members had threatened to kill him and his sister … . However, the record is insufficient to determine whether reunification with the mother is not viable due to parental neglect or abandonment … .

Accordingly, we reverse the order, and remit the matter to the Family Court, Nassau County, for a hearing on the issue of whether reunification with the mother is not viable due to parental neglect or abandonment, and a new determination thereafter of the father’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS … . Matter of A.M.G. v Gladis A.G., 2018 NY Slip Op 04321, Second Dept 6-13-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION RE THE CHILD’S SPECIAL IMMIGRANT JUVENILE STATUS WITHOUT HOLDING A HEARING TO DETERMINE WHETHER REUNITING THE CHILD WITH MOTHER WAS NOT VIABLE DUE TO NEGLECT OR ABANDONMENT (SECOND DEPT))

June 13, 2018

Appeals, Family Law

FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have relieved mother’s attorney as counsel and entered a default judgment on mother’s failure to appear. Mother was not notified of her attorney’s intent to withdraw and, therefore, Family Court should not have entered an order on mother’s default. Because the order should not have been entered, an appeal, rather than a motion to vacate the default, was the proper remedy:

Generally, no appeal lies from an order made upon the default of the appealing party (see CPLR 5511…). Rather, the proper procedure is to move to vacate the default and, if necessary, appeal from any denial of that motion (see CPLR 5015[a][1]…). Here, however, there was no proper order entered upon default. An attorney of record may withdraw as counsel only upon sufficient cause and upon notice to the client (see CPLR 321[b][2]…). Indeed, a purported withdrawal without proof of proper notice to the client is ineffective …, and a court may not enter a default order in the absence of a proper withdrawal … . There is no indication on the record that the mother’s attorney informed her that he was seeking to withdraw as counsel. Accordingly, the Family Court should not have relieved the mother’s attorney as counsel or entered an order on the mother’s default… . Inasmuch as no order was properly entered upon default, the mother’s appeal is not precluded … . Matter of Menghi v Trotta-Menghi, 2018 NY Slip Op 04324, Second Dept 6-13-18

FAMILY LAW (ATTORNEYS, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/APPEALS (ATTORNEYS, DEFAULT, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/DEFAULT (ATTORNEYS, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CIVIL PROCEDURE (APPEALS, FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 5511 FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 5015 FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))/CPLR 321 (FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT))

June 13, 2018

Appeals, Family Law

FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a full-fledged opinion by Justice Troutman, determined the 14-year-old child had the statutory right to waive his presence at the permanency hearing and the judge should not have ordered his presence. Although the hearing had been held, the appeal was heard under as an exception to the mootness doctrine because the issue was likely to recur:

The child was freed for adoption in 2014. A permanency hearing was scheduled for March 30, 2017, and notice of the hearing was provided to the child, who was then 14 years old. One week before the scheduled hearing date, the Attorney for the Child (AFC) filed a form indicating that the child, after consultation with the AFC, waived his right to participate in the hearing. The AFC appeared at the hearing on the child’s behalf and reiterated that the child had waived his right to participate in the hearing. The court stated, however, that it was “required by law to have some communication” with the child, and that the child would therefore be required to appear at the next scheduled hearing date. …

Here, the statutory language is clear and unambiguous. Although the permanency hearing must include “an age appropriate consultation with the child” (Family Ct Act § 1090-a [a] [1]), that requirement may not “be construed to compel a child who does not wish to participate in his or her permanency hearing to do so” … . The choice belongs to the child. Indeed, “[a] child age fourteen and older shall be permitted to participate in person in all or any portion of his or her permanency hearing in which he or she chooses to participate” … . Moreover, “a child who has chosen to participate in his or her permanency hearing shall choose the manner in which he or she shall participate, which may include participation in person, by telephone or available electronic means, or the issuance of a written statement to the court” … . Although the court may limit the participation of a child under the age of 14 based on the best interests of the child… , the court lacks the authority to compel the participation of a child who has waived his or her right to participate in a permanency hearing after consultation with his or her attorney … . Matter of Shawn S., 2018 NY Slip Op 04208, Fourth Dept 6-8-18

FAMILY LAW (PERMANENCY HEARING, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))/APPEALS (FAMILY LAW, MOOTNESS, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))/PERMANENCY HEARINGS (FAMILY LAW, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))/MOOTNESS DOCTRINE (APPEALS, FAMILY LAW, FOURTEEN YEAR OLD CHILD HAD THE STATUTORY RIGHT TO WAIVE HIS PRESENCE AT THE PERMANENCY HEARING AND SHOULD NOT HAVE BEEN ORDERED TO APPEAR, APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT))

June 8, 2018

Family Law

FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined Family Court should have set a specific and definitive visitation schedule:

Respondent mother appeals from an amended order that, inter alia, granted petitioner father’s petition to modify a prior custody order by awarding him primary physical custody of their daughter. We agree with the mother that Family Court erred in failing to set a specific and definitive visitation schedule … . We therefore modify the amended order by striking from the first ordering paragraph the words “and subject to periods of visitation with the Mother and the Father shall encourage [the child] to visit with her Mother,” and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the mother and daughter. Matter of Montes v Johnson, 2018 NY Slip Op 04194, Fourth Dept 6-8-18

FAMILY LAW (VISITATION, FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT))/VISITATION (FAMILY LAW, FAMILY COURT SHOULD HAVE SET A SPECIFIC AND DEFINITIVE VISITATION SCHEDULE, MATTER REMITTED (FOURTH DEPT))

June 8, 2018

Evidence, Family Law

CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT).

The Third Department, in a custody proceeding, determined out of court statements by a child about abuse by the stepfather were properly deemed admissible because they were sufficiently corroborated:

… [T]he older child’s out-of-court statements concerning the sexual abuse perpetrated upon her by the stepfather did not constitute impermissible hearsay. Where, as here, a child’s out-of-court statements relate to abuse or neglect, such statements are admissible in a Family Ct Act article 6 proceeding so long as they are sufficiently corroborated … . “The relatively low degree of required corroboration may be provided by ‘[a]ny other evidence tending to support the reliability of the [child’s] statements'”… . While the mere repetition of an accusation does not, by itself, provide sufficient corroboration … , “some degree of corroboration can be found in the consistency of the out-of-court repetitions” … . Proof of the abuse of another child can also provide the requisite corroboration … . The sufficiency and “reliability of the corroboration, as well as issues of credibility, are matters entrusted to the sound discretion of Family Court and will not be disturbed unless clearly unsupported by the record” … .

The maternal aunt testified that, while babysitting the children … , the older child disclosed that the stepfather comes into her room in the middle of the night and “touches in [her] butt.” The child also revealed the sexual abuse to the father, specifically stating that, while she was locked in her room, the stepfather would pull back the covers and reach into her underwear. The maternal aunt described changes in the older child’s behavior that coincided with the time frame in which the alleged sexual abuse occurred, explaining that the child, who used to be happy and playful, became “unsociable” and “scared,” as if something was bothering her. A therapist whom the older child began seeing following the disclosures testified that the child was “very distant,” “detached” and “withdrawn” during their interactions and opined that the child exhibited behavior that was consistent with that of a four-year-old who may have experienced trauma. Further, a woman whose father had previously lived with the stepfather provided detailed and graphic testimony of her own sexual abuse at the hands of the stepfather when she was a young girl. During interviews with the State Police, both this woman as well as her sister confirmed that they had been sexually abused by the stepfather when they were younger. In view of this proof, and according due deference to Family Court’s factual findings and credibility assessments, we conclude that the older child’s statements were adequately corroborated … . Matter of Cory O. v Katie P., 2018 NY Slip Op 04046, Third Dept 6-7-18

FAMILY LAW (EVIDENCE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/HEARSAY (FAMILY LAW, ABUSE, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/CORROBORATION (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))/EVIDENCE (FAMILY LAW, ABUSE, HEARSAY, CHILD’S OUT OF COURT STATEMENTS ABOUT ABUSE BY STEPFATHER SUFFICIENTLY CORROBORATED (THIRD DEPT))

June 7, 2018