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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ABSENT THE CONSENT OF THE PARTIES TO DISPENSE WITH IT, A DISPOSITIONAL HEARING MUST BE HELD AFTER THE COMPLETION OF THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department determined the record supported termination of father’s parental rights, but the order must be reversed because the court failed to hold a dispositional hearing after the completion of the fact-finding hearing. The matter was remitted:

Family Court erred in failing to hold a dispositional hearing. “Family Ct Act § 625 (a) expressly provides that, upon completion of a fact-finding hearing, a dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” … . Given that the record is devoid of the parties’ consent to dispense with a dispositional hearing, the matter is remitted for a dispositional hearing “or to otherwise affirmatively gain the parties’ consent to dispense of the matter without one” … . Matter of Konner N. (Justin O.), 2025 NY Slip Op 01017, Third Dept 2-20-25

Practice Point: Here the order terminating father’s parental rights was reversed because no dispositional hearing was held, and there was no indication the parties consented to proceeding without one. The matter was remitted.

 

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MOTHER’S OBJECTIONS TO THE CHILD SUPPORT ORDER WERE NEVER SERVED ON FATHER’S COUNSEL; THE SUBSEQUENT ORDER GRANTING THE OBJECTIONS IS VOID (THIRD DEPT). ​

The Third Department, reversing Family Court, determined that the mother’s objections to the Support Magistrate’s child support order, which Family Court granted, should have been served on father’s counsel. Under the circumstances of the case, the failure to serve counsel rendered the related court orders void:

Family Ct Act § 439 (e) directs that “[a] party filing objections shall serve a copy of such objections upon the opposing party, who shall have [13] days from such service to serve and file a written rebuttal to such objections.” This provision does not address the issue of whether service on an attorney representing a party constitutes service on the opposing party. Where a method of procedure is not prescribed, Family Ct Act § 165 (a) provides that “the provisions of the [CPLR] shall apply to the extent that they are appropriate to the proceedings involved … .” CPLR 2103 specifically pertains to the service of papers and provides that “papers to be served upon a party in a pending action shall be served upon the party’s attorney” (CPLR 2103 [b]). Accordingly, “service on an opposing party represented by counsel requires service on the attorney, not the party” … . The record supports that counsel was not served with the objections, and in fact only became aware of them upon receipt of Family Court’s order granting same. * * * … [C]ounsel never obtained a copy of the objections, and thus never responded to same. Matter of Andersen v Bosworth, 2025 NY Slip Op 01029, Third Dept 2-20-25

Practice Point: Here the failure to serve father’s counsel with mother’s objections to the child support order, which were subsequently granted by Family Court, rendered the order granting the objections void.

 

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DENYING FATHER’S REQUEST FOR AN ADJOURNMENT IN THIS CUSTODY MODIFICATION PROCEEDING EFFECTIVELY DEPRIVED HIM OF HIS RIGHT TO TESTIFY AND HIS RIGHT TO A FULL AND FAIR EVIDENTIARY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court improvidently exercised its discretion when it denied father’s request for an adjournment of the custody modification proceedings. Father was effectively denied his right to testify:

“The granting of an adjournment rests in the sound discretion of the hearing court upon a balanced consideration of all relevant factors” … . “The determination to grant or deny an adjournment will not be overturned absent an improvident exercise of discretion” … . While adjournments are within the discretion of the hearing court, the range of that discretion is narrowed where a fundamental right of the parties is involved … . Generally, in a proceeding pursuant to Family Court Act article 6 seeking modification of a prior custody and visitation order, a full and comprehensive hearing is required, where due process requires that a parent be afforded a full and fair opportunity to be heard … .

After balancing the relevant factors, we find that under the circumstances of this case, the Family Court improvidently exercised its discretion in denying the father’s request for an adjournment, as the court’s denial of the requests for adjournment deprived the father entirely of his right to testify on his own behalf in the custody modification hearing, thereby depriving him of a full and fair evidentiary hearing … . Matter of Panizo v Douglas, 2025 NY Slip Op 00966, Second Dept, 2-19-25

Practice Point: Although the decision to grant or deny a request for an adjournment is discretionary, here the denial of the request effectively deprived father of his right to a full and fair evidentiary hearing in this custody modification proceeding, requiring reversal.

 

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A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT THE MUNICIPALITY CAN BE LIABLE FOR A NEGLIGENT PLACEMENT WHICH LEADS TO FORESEEABLE HARM TO THE CHILD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge dissenting opinion, determined a municipality owes a child placed in foster care a special duty, such that the municipality, although performing a governmental function, can be liable for negligent placement of a child:

Today we hold that municipalities owe a duty of care to the children the municipalities place in foster homes because the municipalities have assumed custody of those children. As a result, we reverse the decision of the Appellate Division.

Plaintiff, formerly a child in foster care, commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendant Cayuga County and “Does 1-10,” who she alleged were “persons or entities with responsibilities for [p]laintiff’s safety, supervision and/or placement in foster care.” According to the complaint, the County placed plaintiff in foster care in 1974, when she was three months old. While in the foster home selected by the County, plaintiff allegedly suffered horrific abuse. Plaintiff alleged that her foster parent sexually abused her over the course of approximately seven years, beginning when she was 18 months old and continuing until she was eight years old. The foster parent allegedly coerced plaintiff’s compliance with the sexual abuse by inflicting severe physical abuse, resulting in plaintiff sustaining broken bones and a head wound. * * *

By assuming legal custody over the foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life … . We thus hold that a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from “foreseeable risks of harm” arising from the child’s placement with the municipality’s choice of foster parent … . Weisbrod-Moore v Cayuga County, 2025 NY Slip Op 00903, CtApp 2-18-25

Practice Point: A municipality generally is not liable for injury resulting from the exercise of a governmental function absent a special duty owed to the injured party. Resolving a split of authority, here the Court of Appeals held a municipality owes a special duty to a child it places in foster care.

 

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PETITIONER, WHO IS NOT RELATED TO THE CHILD, DID NOT HAVE STANDING BY EQUITABLE ESTOPPEL TO SEEK CUSTODY OR VISITATION; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Family Court, determined petitioner, who is not related to the child, did not have standing by equitable estoppel to seek custody of or visitation with the child. The evidence did not demonstrate the relationship between petitioner and the child rose to the level of parenthood:

While the record contains evidence suggesting that petitioner and the child had an ongoing relationship throughout the child’s formative years, the record does not support the idea that disrupting such a relationship would be harmful to the child’s best interests. Petitioner never lived with the child or assumed any financial responsibilities for her. Although petitioner credibly testified that the child visited her frequently during the first three years of the child’s life, there was no evidence that petitioner consistently cared for the child or that the child looked upon petitioner as a parental figure.

… [T]here was evidence that the child did not recognize or view petitioner as parental figure … . From the child’s perspective, the only other parent she knew, aside from respondent, the child’s biological mother, was the mother’s companion, whom she regarded as her father and with whom she reported having a close, bonded relationship with, undercutting petitioner’s equitable estoppel claim … . Matter of April B. v Relisha H., 2025 NY Slip Op 00782, First Dept 2-11-25

Practice Point: To demonstrate standing to bring a custody petition by equitable estoppel, the petitioner must demonstrate a relationship with the child which rises to the level of parenthood, not the case here.

 

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COUNTY COURT PROPERLY GRANTED THE PEOPLE’S REQUEST TO PREVENT REMOVAL OF DEFENDANT’S CASE TO FAMILY COURT UNDER THE “RAISE THE AGE ACT;” THERE WAS A COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, over a comprehensive dissent, determined County Court properly granted the People’s motion to prevent removal of defendant’s case to Family Court pursuant to the Raise the Age Law:

In 2017, the New York State Legislature enacted the Raise the Age Law, which defines a person who was charged with a felony committed on or after October 1, 2018 when the person was 16 years old, or committed on or after October 1, 2019 when the person was 17 years old, as an ” ‘[a]dolescent offender’ ” … . The Raise the Age Law created in each county a youth part of the superior court to make appropriate determinations with respect to the cases of, inter alia, adolescent offenders … . Where, as here, an adolescent offender is charged with a violent felony as defined in Penal Law § 70.02, within six calendar days of the adolescent offender’s arraignment, the youth part of superior court is required to review the accusatory instrument and determine whether the prosecutor has proven by a preponderance of the evidence that the adolescent offender caused “significant physical injury” to someone other than a participant in the crime, displayed a “firearm, shotgun, rifle or deadly weapon as defined in the penal law” in furtherance of the crime, or unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the Penal Law … . If none of those factors exist, the matter must be transferred to Family Court unless the prosecutor moves to prevent the transfer of the action to Family Court and establishes that extraordinary circumstances exist … . … [I]n making an extraordinary circumstances determination, courts should “look at all the circumstances of the case, as well as . . . all of the circumstances of the young person,” … . …

… [T]he court did not abuse its discretion in granting the prosecutor’s motion to prevent removal inasmuch as the prosecutor established that there are extraordinary circumstances. … [D]efendant’s prior adjudications as a juvenile delinquent or any evidence obtained as a result of those proceedings cannot be used in determining whether to grant the People’s motion (Family Ct Act § 381.2 [2] …).. Nevertheless, although it is impermissible to raise any issue related to the adjudication or evidence obtained therefrom, it is still permissible to raise ” ‘the illegal or immoral acts underlying such adjudications’ ” … .

Here … defendant was charged with participating in a violent crime, i.e., a home invasion robbery involving weapons and resulting in injuries to the victim. Moreover, despite the various services and programs provided to defendant over the last five years while defendant had been involved in the criminal justice system, defendant has made no appreciable positive response and continues to engage in escalating criminal behavior. People v Guerrero, 2025 NY Slip Op 00766, Fourth Dept 2-7-25

Practice Point: Under the “Raise the Age Act” the People can move to prevent the transfer of felony cases to Family Court where the defendant was 16 or 17 at the time of the alleged offense.

 

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HERE THE NEGLECT PROCEEDINGS WERE BROUGHT AGAINST FATHER WHO DID NOT LIVE WITH MOTHER AND THE CHILD; MOTHER WAS NOT A PARTY IN THE NEGLECT PROCEEDINGS; FAMILY COURT DID NOT HAVE THE AUTHORITY TO PLACE MOTHER UNDER THE SUPERVISION OF THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Ventura, determined Family Court did not have statutory authority to place mother, who was not a respondent in the neglect proceeding, under the supervision of the Administration for Children’s Services (ACS) and direct that she cooperate with ACS. The neglect proceedings were brought against father (respondent), who did not live with the mother and child. Mother, a “nonrespondent,” was not a party in the neglect proceedings and the child had not been removed from her home:

This appeal presents this Court with the opportunity to decide an issue of first impression in New York involving the rights of nonrespondent parents in child neglect proceedings, to wit: whether the Family Court may place a nonrespondent custodial parent under the supervision of … [ACS] and the court, and direct the parent to cooperate with ACS in various ways, in circumstances where the respondent parent resides elsewhere and the child has not been removed from the nonrespondent parent’s home. Considering, inter alia, the well-established “interest of a parent in the companionship, care, custody, and management of his or her children” … and the lack of any statutory authority permitting the challenged directives, we answer this question in the negative. Therefore, we conclude that, in this case, the Family Court improperly placed the mother under the supervision of ACS and the court, and directed her to cooperate with ACS in certain respects. * * *

… [T]he relevant provisions of Family Court Act § 1017 apply only when a court orders the removal of a child from his or her home and releases the child to the home of a nonrespondent and “noncustodial parent” … . By the plain language of the statutory text, the provisions requiring the nonrespondent parent … to “submit[ ] to the jurisdiction of the court with respect to the child” and “to cooperate” with “the child protective agency” in various ways … are only triggered “[a]fter [the] child is removed from the home” … . Here, since the court never “determin[ed] that [the] child must be removed from . . . her home” … , it did not have authority pursuant to Family Court Act § 1017 to impose the challenged directives upon the mother, no matter how “well-intended” the court’s “goals” may have been … . Matter of Sapphire W. (Kenneth L.), 2025 NY Slip Op 00662, Second Dept 2-5-25

Practice Point: Here Family Court did did not have the authority to place mother, who was not a party to the neglect proceedings against father, under the supervision of ACS.

 

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ALTHOUGH FATHER FAILED TO APPEAR IN THE CUSTODY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A HEARING AND MADE FINDINGS OF FACT; CUSTODY ORDER VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the custody order should have been granted. Despite father’s failure to appear in this custody proceeding, Family Court should have held a hearing and made findings of fact in support of awarding custody to mother:

“Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court, the law favors resolution on the merits in child custody proceedings” … . In addition, the court’s authority to proceed by default “in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … .

Here, the Family Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Matter of Riera v Ayabaca, 2025 NY Slip Op 00661, Second Dept 2-5-25

Practice Point: Although Family Court can proceed by default in a custody matter, a hearing and findings of fact are necessary.

 

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HEARSAY ALONE IS NOT ENOUGH TO SUPPORT REVOCATION OF PROBATION (FOURTH DEPT).

The Fourth Department, vacating the declaration of delinquency, determined the hearsay testimony of a police investigation was not sufficient to prove defendant violated the terms and conditions of a probationary sentence:

… [T]he evidence at the hearing that he committed a criminal offense while on probation consisted entirely of hearsay testimony from a police investigator. “While hearsay is admissible at a probation revocation hearing, hearsay alone does not satisfy the requirement that a finding of a probation violation must be based upon a preponderance of the evidence” … . Based on this record, we conclude that County Court’s determination “was based on hearsay alone and therefore cannot stand” … . People v Hawkey, 2025 NY Slip Op 00569, Fourth Dept 1-31-25

Practice Point: Hearsay is admissible at a probation revocation hearing, but hearsay alone will not support revocation.

 

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ALTHOUGH THE CHILD’S IMMIGRANT VISA HAD BEEN LOST, THE PROOF DEMONSTRATED THAT THE CHILD MUST HAVE BEEN ISSUED THE APPROPRIATE VISA AND THAT, THEREFORE, PETITIONER WAS ENTITLED TO REGISTRATION OF A FOREIGN ADOPTION AND AN ORDER OF ADOPTION FOR THE CHILD (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined petitioner was entitled to registration of foreign adoption and an order of adoption for the child who was born in China based upon proof the child must have been admitted to the US with an IR-3 or IH-3 immigrant visa, which had been lost:

… [T]the petitioner, a New York resident, was unable to annex a copy of the child’s immigrant visa to the petition because it had been lost. However, the petitioner provided an affidavit averring that the child had been issued the relevant immigrant visa and a copy of the replacement Certificate of Citizenship, issued by USCIS, showing that the child became a United States citizen only nine days after her adoption. The record shows that the child would not have been able to automatically obtain a Certificate of Citizenship if she had not possessed the appropriate immigrant visa. Under these circumstances, we conclude that the foreign adoption order meets the requirements of Domestic Relations Law § 111-c(1), including the requirement that “the validity of the foreign adoption has been verified by the granting of an IR-3, IH-3, or a successor immigrant visa” (see id. § 111-c[1][b]). Indeed, to determine otherwise would defeat the intention of Domestic Relations Law § 111-c to protect adoptive families from unnecessary effort and expense. Matter of Lily, 2025 NY Slip Op 00448, Second Dept 1-29-25

Practice Point: Here, although the child’s immigrant visa has been lost, the proof demonstrated the child must have been issued the appropriate visa. Therefore the court should have issued a registration of foreign adoption and an order of adoption for the child (born in China).

 

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