Family Law – Page 98 – New York Appellate Digest

NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT).

The Second Department, reversing Family Court, determined that it was not in the best interests of the children to be removed from foster care and placed with family members:

“When considering guardianship appointments, the child’s best interests are paramount” … . Once parental rights have been terminated, there is no presumption favoring the child’s biological family over the proposed adoptive parents selected by an authorized agency … .

Here, the Family Court’s determination that it was in the children’s best interests to grant the respective petitions for guardianship, rather than keeping the children with their foster parents for the purpose of adoption, lacks the requisite sound and substantial basis in the record … . The children Hailey and Kailyn have resided in the same foster home since June 2015, and the children Danielle and Belicia have resided in the same foster home since November 2015, where they have bonded with their foster parents and are happy, healthy, and well provided for … . There is no presumption that the children’s best interests will be better served by returning them to a family member, and it would not be in the children’s best interests to do so here … . Matter of Rebecca B. v Michael B., 2017 NY Slip Op 05720, 2nd Dept 7-19-17

FAMILY LAW (ADOPTION, GUARDIANSHIP, NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT))/ADOPTION (GUARDIANSHIP, NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT))/GUARDIANSHIP (ADOPTION, NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT)

July 19, 2017

Criminal Law, Evidence, Family Law

EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

The Second Department, under a weight of the evidence analysis, determined the evidence of the appellant’s liability as an accomplice in this juvenile delinquency proceeding was insufficient. The complainant testified appellant was present during the assault and theft by another. Presence is not enough:

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act… . “A person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” … . Here, we agree with the appellant that the Family Court’s finding of accessorial liability was against the weight of the credible evidence. The appellant is alleged to have been an accomplice with another youth who punched the complainant in the face and took his iPhone. However, at the fact-finding hearing, when asked about the appellant’s actions at the time of the assault and robbery, the complainant testified that the appellant was standing near the perpetrator and watched the incident occur. The presentment agency’s evidence with respect to the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree established only that the appellant was present at the scene of the offense… . Accordingly, the determination of the Family Court with respect to those crimes was against the weight of the evidence, and the order of disposition must be modified accordingly. Matter of Justin M., 2017 NY Slip Op 05605, 2nd Dept 7-12-17

FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/JUVENILE DELINQUENCY (FAMILY COURT, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/CRIMINAL LAW (FAMILY LAW, JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/EVIDENCE (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)/ACCESSORIAL LIABILITY (JUVENILE DELINQUENCY, EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT)

July 12, 2017

Family Law

EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT.

The Second Department, affirming Family Court, noted that even one instance of excessive corporal punishment is sufficient support for a neglect finding:

“Although parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect” … Even “a single incident of excessive corporal punishment is sufficient to support a finding of neglect” … .

Here, contrary to the father’s contention, a preponderance of the evidence supported the Family Court’s finding that the father neglected the subject child by inflicting excessive corporal punishment … . The father admitted that on June 17, 2014, he hit the child once with a wooden ruler, and other credible evidence established that the child sustained visible marks and swelling on his left forearm as a result, and that this was not an isolated incident … . Matter of Tarelle J. (Walter J.), 2017 NY Slip Op 05600, 2nd Dept 7-12-17

FAMILY LAW (EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT)/NEGLECT (FAMILY LAW, EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT)/CORPORAL PUNISHMENT (FAMILY LAW, NEGLECT, EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT)

July 12, 2017

Family Law, Social Services Law

PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT.

The Second Department, reversing Family Court, determined putative father’s request for a DNA paternity test should not have been denied:

… [T]he Orange County Department of Social Services filed a paternity petition against the appellant on behalf of the mother of the subject child, alleging him to be the father of the child, who was born in 2007. The appellant requested a genetic marker test, commonly known as a DNA test. After a hearing, the Family Court determined that the appellant was estopped from contesting paternity, in effect, denied his application for a DNA test, and entered an order of filiation adjudicating the appellant to be the father of the child.

Contrary to the Family Court’s determination, the appellant should not have been estopped from contesting his paternity of the child. Considering the lack of a relationship between the appellant and the child, there was no evidence that “the child would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being” if the DNA test were administered and it was ultimately shown that the appellant was not the biological father of the child … .

Accordingly, we cannot conclude that a genetic marker test of the appellant’s and the child’s DNA would be contrary to the best interests of the child. Commissioner of Social Servs. v Dorian E.L., 2017 NY Slip Op 05590, 2nd Dept 7-12-17

FAMILY LAW (PATERNITY, PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT)/PATERNITY (PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT)/DNA TEST (PUTATIVE FATHER’S REQUEST FOR A DNAPATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT)

July 12, 2017

Family Law

EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT.

The Fourth Department determined father’s petition to modify custody should not have been denied without a hearing. The evidence that mother had been arrested for a drug offense, in addition to allegations of corporal punishment by mother’s boyfriend, were enough to warrant a hearing:

We … agree with the father that he made a sufficient evidentiary showing of a change in circumstances to require a hearing with respect to certain remaining allegations in the amended petition. It was undisputed that the mother was facing prosecution for criminal possession of a controlled substance in Georgia. Although the mother submitted a negative drug test in support of her motion, the drug test was performed on a hair follicle sample that she submitted well after her arrest, and the assertions by the mother’s attorney regarding how far back such a test could detect drug use raises an issue to be resolved at an evidentiary hearing, not on a motion to dismiss. Considering the mother’s history of drug and alcohol addiction, as acknowledged by the parties in the parenting agreement, we conclude that the allegation that the mother was arrested and being prosecuted for criminal possession of a controlled substance is sufficient to warrant a hearing … , inasmuch as such conduct, including the mother’s possible unlawful use of a controlled substance, “is plainly relevant to her fitness as a parent” … . Matter of Farner v Farner, 2017 NY Slip Op 05545, 4th Dept 7-7-17

FAMILY LAW (CUSTODY, EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT)/CUSTODY (FAMILY LAW, EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT)

July 7, 2017

Family Law, Social Services Law

PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Egan, determined that the Interstate Compact on the Placement of Children (ICPC) does not allow the placement of a child in another state absent that state’s permission, even when the placement is with a relative (custody, Family Ct Act article 6) and does not involve placement in foster care (neglect, Family Ct Act article 10). Here the grandmother, who lives in North Carolina, sought custody of the child with mother’s consent. The North Carolina authorities, however, determined placement with grandmother would not be appropriate because she was caring for three other children:

Here, DSS argues that the pending Family Ct Act article 10 proceeding against the child’s mother mandated that DSS, as the child’s custodian, comply with the ICPC in the first instance; therefore, the argument continues, absent approval from the appropriate authorities in North Carolina, Family Court was statutorily barred from placing the child with the grandmother in that state. The grandmother, on the other hand, contends the ICPC does not apply at all because custody of the subject child is being sought in the context of a Family Ct Act article 6 proceeding (rather than in conjunction with the related Family Ct Act article 10 neglect proceeding against the mother). Specifically, the grandmother argues that the statute — on its face — is limited to foster care situations or other similar instances in which the receiving state would bear some responsibility for providing aid or services to the subject child. Asserting that she is fully prepared to assume financial responsibility for the child, the grandmother contends that the statutory goals/concerns are not implicated and, therefore, notwithstanding the fact that North Carolina did not recommend the requested placement, the ICPC should not bar placement of the child with her.

The case law interpreting the ICPC is limited and is complicated by both the interplay between related and often (as is the case here) contemporaneous proceedings brought under Family Ct Act articles 6 and 10 … and the overarching desire to effectuate an appropriate placement for a child — particularly in those situations where the relevant statutory scheme may be more of an impediment than an aid in achieving a placement that is consistent with the child’s best interests. Here, although there is no question that the grandmother’s efforts to seek custody of the child were well-intentioned, the fact remains that, at the time that the grandmother’s custody petition was filed, DSS had custody of the child in the context of the then-pending Family Ct Act article 10 proceeding … . To that end, “[w]here the custody of a child who is under the supervision of [DSS] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply” … — even where, as here, there is a pending Family Ct Act article 6 petition for custody … . Matter of Dawn N. v Schenectady County Dept. of Social Servs., 2017 NY Slip Op 05482, 3rd Dept 7-6-17

FAMILY LAW (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/CUSTODY (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/NEGLECT (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)

July 6, 2017

Civil Rights Law, Family Law

HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF THE CHILDREN, MATTER REMITTED.

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on mother’s petition to change the surname of one of their children. The petition was opposed by father:

“Civil Rights Law § 63 authorizes an infant’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change” … . With respect to infants, the statute provides in relevant part, that, if the court is “satisfied . . . that the petition is true, . . . that there is no reasonable objection to the change of name proposed, and . . . that the interests of the infant will be substantially promoted by the change,” the court may grant the petition (§ 63). With respect to the interests of the infant, “the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . Such a determination “requires a court to consider the totality of the circumstances” … .

Contrary to petitioner’s contention, respondent raised reasonable objections to the petition … . Petitioner is seeking to change the sons’ names to a surname that is not used by either parent or the sons’ half-sibling … . While “neither parent has a superior right to determine the surname of the child,” we have stated that “a father has a recognized interest in having his child bear his surname” … . Respondent also contends that an order granting the petition will have a deleterious effect on his relationship with his sons … . Although petitioner contends that the sons desire the name change, that contention is based on hearsay, and respondent challenges that contention. Inasmuch as the court did not conduct an in camera interview with them, we cannot resolve that disputed issue on this record. In any event, the sons are now of sufficient age and maturity to express their preference for a particular surname, and they have a right to be heard … . Matter of Niethe (McCarthy–DePerno), 2017 NY Slip Op 05371, 4th Dept 6-30-17

June 30, 2017

Family Law

THE RECORD DID NOT SUPPORT THE AWARD OF PRIMARY PHYSICAL CUSTODY TO MOTHER, FAMILY COURT REVERSED, ALTHOUGH THE CHILD WISHED TO STAY WITH MOTHER, THAT FACTOR WAS AFFORDED LITTLE WEIGHT DUE TO THE CHILD’S YOUNG AGE.

The Fourth Department, reversing Family Court, determined there was not a sound and substantial basis in the record for awarding primary physical custody to the mother. Although the child wished to stay with mother, the Fourth Department accorded that factor little weight because of the child’s young age and mother’s permissive parenting style:

It is well settled that, in determining the child’s best interests, a court should consider “(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) [the] quality of the child’s home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child’s emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings” … . Additionally, a preexisting custody arrangement established by agreement is ” a weighty factor,’ ” but is not absolute … .

… With respect to the first factor, although the mother has been the child’s primary caretaker since birth, her living arrangements were unstable. The mother and the child had lived in seven different residences over the three years preceding the hearing, which resulted in the child changing schools every year. As the court recognized in its decision, the father is the more stable parent.

Concerning the quality of the home environment, the father and his wife own a home where the child has his own room, his own bed, and age-appropriate toys. In contrast, the mother’s chaotic living arrangements have put the child in regular contact with a half-sister who abuses drugs and have resulted in the child living in a home that was infested with fleas. Concerning the child’s emotional and intellectual development, the father ensures that the child attends school regularly and completes his homework. The record established that, since the father began playing a larger role in the child’s life, the child’s attendance and performance in school has improved dramatically. Also, the father facilitates the child’s participation in activities such as karate and swimming, encourages him to read for 20 minutes a day, and has adjusted his diet to address his medical needs. In contrast, the mother has shown a lack of concern for the child’s attendance and performance in school, shields him from experiences and foods that he finds unpleasant, and prefers that he play video games and eat fast food. Concerning the parents’ relative financial status, the father’s household income is significantly higher and his job is stable. In contrast, although the mother had difficulty affording her expenses and was evicted from prior residences, she continued to bounce from one part-time job to another and testified that she sees no need to work more than 28 hours a week. Matter of Braga v Bell, 2017 NY Slip Op 05348, 4th Dept 6-30-17

June 30, 2017

Family Law

TERMINATION OF PARENTAL RIGHTS PROCEEDING REMITTED FOR AGE-APPROPRIATE CONSULTATION CONCERNING THREE OF THE CHILDREN TO DETERMINE THEIR WISHES.

The Third Department determined Family Court did not engage in an age-appropriate consultation concerning three of the children to determine their wishes in this “termination of parental rights” proceeding. The matter was remitted for that purpose:

Contrary to the argument by the attorney for the three younger children, the mere participation at the hearing and the giving of a closing statement, without more, by the attorney who represented Dawn, Summer and Samantha do not satisfy the age-appropriate consultation requirement of Family Ct Act § 1089 (d). The closing statement by the attorney for the three younger children was devoid of any statement indicating the preferences of Dawn, Summer or Samantha … .. Nor does the attorney for the three younger children point to any other evidence in the record that reflects their wishes. We are mindful that the court is ultimately guided by the best interests of the children … . The Legislature, however, has made it explicitly clear that a permanency hearing “shall” include an age-appropriate consultation … , carry significance and cannot be lightly overlooked. Given that the record does not disclose the wishes of Dawn, Summer or Samantha, the matter must be remitted so that Family Court may conduct the age-appropriate consultation under Family Ct Act § 1089 (d) with respect to these children. Matter of Dawn M. (Michael M.), 2017 NY Slip Op 05282, 3rd Dept 6-29-17

June 29, 2017

Attorneys, Family Law

FATHER TOLD THE COURT HE HAD RETAINED COUNSEL BUT COUNSEL COULD NOT ATTEND THE PETITION-TO-RELOCATE HEARING THAT DAY, COURT WENT AHEAD WITH THE HEARING, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO COUNSEL.

The Second Department, reversing Family Court, determined father had been deprived of his right to counsel in mother’s relocation-petition proceeding. Father appeared for the hearing and told the court he had retained an attorney but the attorney could not attend that day. The court went ahead with the hearing:

After the court granted assigned counsel’s request to be relieved, it adjourned the hearing until June 24, 2016, so that the father could retain counsel. On June 24, 2016, the father told the court that he had retained an attorney but that the attorney could not be in court that day. The court, however, proceeded with the hearing after stating that it had no choice but to proceed.

We agree with the father’s contention that he was deprived of his statutory right to counsel … . Under the circumstances, instead of ordering the hearing to proceed, the Family Court should have granted an adjournment … . Accordingly, reversal is required, without regard to the merits of the father’s position, and we remit the matter … for a new hearing and new determination thereafter … . Matter of Charbonneau v Charbonneau, 2017 NY Slip Op 05221, 2nd Dept 6-28-17

June 28, 2017

NO PRESUMPTION THE BEST INTERESTS OF A CHILD ARE SERVED BY PLACEMENT WITH A FAMILY MEMBER, FAMILY COURT REVERSED (2ND DEPT).

EVIDENCE OF ACCESSORIAL LIABILITY INSUFFICIENT IN THIS JUVENILE DELINQUENCY PROCEEDING, PRESENCE IS NOT ENOUGH 2ND DEPT.

EVEN ONE INSTANCE OF EXCESSIVE CORPORAL PUNISHMENT IS SUFFICIENT TO SUPPORT A NEGLECT FINDING 2ND DEPT.

EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT.

HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF THE CHILDREN, MATTER REMITTED.

THE RECORD DID NOT SUPPORT THE AWARD OF PRIMARY PHYSICAL CUSTODY TO MOTHER, FAMILY COURT REVERSED, ALTHOUGH THE CHILD WISHED TO STAY WITH MOTHER, THAT FACTOR WAS AFFORDED LITTLE WEIGHT DUE TO THE CHILD’S YOUNG AGE.

TERMINATION OF PARENTAL RIGHTS PROCEEDING REMITTED FOR AGE-APPROPRIATE CONSULTATION CONCERNING THREE OF THE CHILDREN TO DETERMINE THEIR WISHES.

FATHER TOLD THE COURT HE HAD RETAINED COUNSEL BUT COUNSEL COULD NOT ATTEND THE PETITION-TO-RELOCATE HEARING THAT DAY, COURT WENT AHEAD WITH THE HEARING, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO COUNSEL.

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