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THE “ABANDONMENT” EVIDENCE WAS NOT SUFFICIENT; MOTHER’S PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner did not prove mother had abandoned her children. Mother’s parental rights should not have been terminated:

… [T]he petitioner failed to establish by clear and convincing evidence that the mother evinced an intent to forego her parental rights. The record demonstrates that, during the six-month abandonment period, the mother visited with the children on two occasions, saw the children on at least one additional occasion at a family gathering, purchased clothing for the children, spoke with the case worker on the phone multiple times, and objected to the goal for the children’s placement changing to a kinship adoption rather than returning the children to the mother. Under these circumstances, the Family Court should have denied the petitions on the merits, insofar as asserted against the mother … . We further note that the record contains testimony from a case worker that, during family visits subsequent to the filing of the petitions, the mother’s interactions with the children were “very positive.” “While a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent” … .  Matter of Grace E. W.-F. (Zanovia W.), 2022 NY Slip Op 03119, Second Dept 5-11-22

Practice Point: The petitioner did not present clear and convincing evidence that mother abandoned her children. The termination of parental rights petition should not have have been granted. Mother had visited the children, seen the children at a family gathering, purchased clothing for the children and frequently talked to the case worker.

 

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FOR PURPOSES OF A PERMANENT NEGLECT/TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, DIRECT PLACEMENT OF THE CHILD WITH A SUITABLE PERSON MEETS THE DEFINITION OF PLACEMENT IN THE “CARE OF AN AUTHORIZED AGENCY” SUCH THAT A PERMANENT NEGLECT PROCEEDING IS AVAILABLE AFTER DIRECT PLACEMENT FOR ONE YEAR; ALTHOUGH RESPONDENT’S PARENTAL RIGHTS HAD BEEN TERMINATED WHEN THIS APPEAL WAS CONSIDERED, THE “EXCEPTION TO THE MOOTNESS DOCTRINE” WAS INVOKED (THIRD DEPT).

The Third Department, considering the appeal as an exception to the mootness doctrine in this neglect/termination-of-parental rights proceeding, determined that direct placement of the child with a suitable person met the definition of placement in the “care of an authorized agency” for purposes of the pre-requisite for a permanent neglect proceeding seeking to terminate parental rights. Family Court had ruled placement with a suitable person was not placement in the “care of an authorized agency” and dismissed the permanent neglect proceeding on that ground. The Third Department, after finding the permanent neglect proceeding should not have been dismissed, went ahead and ruled on the merits, finding that mother had permanently neglected the child:

… [W]e find Family Court’s interpretation of Social Services Law § 384-b too narrow and calling for a result that is “unnecessarily circuitous” … and ultimately contrary to the stated legislative intent (see generally Social Services Law § 384-b [1] [a]-[b]). A proceeding for termination of parental rights may be originated by an “authorized agency” such as petitioner … , seeking an order for guardianship and custody when a child is a permanently neglected child … . A “permanently neglected child” is defined as “a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or [15] out of the most recent [22] months . . . substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child” … .

Regarding the phrase “care of an authorized agency,” courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued … pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384-b. Matter of Frank Q. (Laurie R.), 2022 NY Slip Op 02843, Third Dept 4-28-22

Practice Point: For purposes of the prerequisite for a permanent neglect/termination-of-parental rights proceeding, a child’s direct placement with a suitable person meets the definition of placement in the “care of an authorized agency” such that the permanent neglect proceeding is available after direct placement for one year. Here, the mother’s parental rights had been terminated at the time the appeal was considered, but the “exception to the mootness doctrine” was invoked because the issue was deemed likely to recur.

 

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MOTHER WAS ENTITLED TO A HEARING ON HER CLAIM SHE ADMITTED TO PERMANENT NEGLECT BECAUSE HER COUNSEL WAS INEFFECTIVE; MOTHER ALLEGED COUNSEL DID NOT INFORM HER OF THE RELEVANT BURDENS OF PROOF AT TRIAL (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was entitled to a hearing on whether her counsel was ineffective in failing to inform her of the applicable burdens of proof and in allowing her to admit to permanent neglect:

 “‘A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel'” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Effective assistance is predicated on the standard of “meaningful representation” … .

… [M]other submitted an affidavit alleging that, prior to entering her admission to permanent neglect, counsel failed to inform her of the burden and standard of proof at trial and that she made the admission “because [she] was advised that it was necessary in order to have [her] children returned.” She further alleged that she “would not have made the statements that [she] made to the court if [she] had been fully advised of [her] rights.” The Family Court did not ameliorate these purported deficiencies in its colloquy with the mother, and also omitted any reference to the possible consequences of the finding, including termination of her parental rights … . Matter of Skylar P. J., 2022 NY Slip Op 02793, Second Dept 4-27-22

Practice Point: A party in a neglect proceeding has a right to effective assistance of counsel. Here mother was entitled to a hearing on her claim she would not have admitted to permanent neglect had she been informed of the relevant burdens of proof at trial.

 

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ALTHOUGH THE PETITIONER, COUNTY COMMISSIONER OF SOCIAL SERVICES, WAS PROPERLY TERMINATED FROM HER EMPLOYMENT FOR OTHER REASONS, THE FACT THAT SHE TESTIFIED IN FAMILY COURT ABOUT THE PROPER PLACEMENT OF A JUVENILE WHICH WAS NOT AS SEVERE AS THE PLACEMENT ADVOCATED BY THE COUNTY ATTORNEY AND THE PROBATION DEPARTMENT DID NOT CONSTITUTE A BREACH OF LOYALTY (THIRD DEPT).

The Third Department, in this Article 78 action, affirmed the county’s decision to terminate the employment of petitioner, who was Commissioner of Social Services for the county. The allegations of misconduct are too detailed to be summarized here. But the Third Department noted that the fact that the petitioner disagreed with the county attorney and the probation department about the appropriate placement of a juvenile, and so testified in Family Court, was not actionable misconduct:

… [P]etitioner, the Director of Probation and the County Attorney each had defined statutory roles in the Family Court proceeding … . That petitioner opted to promote a less stringent measure than her counterparts does not, as charged by respondents, constitute a breach of loyalty owed to either the County Attorney or the Director of Probation, or vice versa. … [T]o the extent that the Board relied, at all, on the Hearing Officer’s findings with respect to [the relevant] charge … , its determination is not supported by substantial evidence. It therefore follows that so much of the Board’s determination as sustained said specifications are annulled. Matter of Scuderi-Hunter v County of Del., 2022 NY Slip Op 01078, Third Dept 2-17-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

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THE NYC HUMAN RESOURCES ADMINISTRATION (HRA) WAS NOT ENTITLED TO ANY OF THE PROCEEDS OF PLAINTIFF’S CAR-ACCIDENT SETTLEMENT BECAUSE THE SETTLEMENT DID NOT INCLUDE MEDICAL EXPENSES; PLAINTIFF WAS BARRED FROM RECOVERY OF MEDICAL COSTS BECAUSE HER BASIC ECONOMIC LOSS WAS LESS THAN $50,000 (INS LAW 5102) (FIRST DEPT).

The First Department, reversing Supreme Court, determined no part of plaintiff’s automobile accident settlement was available to satisfy a medical lien held by the NYC Human Resources Administration (HRA) because the settlement did not include medical expenses:

HRA asserted a lien on the proceeds of plaintiff’s settlement of an action arising out of an automobile accident in an amount representing the total amount of the medical bills it paid in connection with the treatment of the injuries plaintiff sustained in the accident (see Social Services Law § 104-b). However, plaintiff was barred from suing for medical expenses, because her basic economic losses were less than $50,000 (see Insurance Law § 5102[a]). Moreover, in light of the particular record before us, no portion of the proceeds of the settlement represents medical expenses, and HRA may not recover any portion of the proceeds for its medical costs … . Marmol v Mutino, 2022 NY Slip Op 00970, First Dept 2-15-22

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IN A MATTER OF FIRST IMPRESSION, THE APPELLATE COURT DETERMINED COUNTY COURT DID NOT CORRECTLY APPLY THE DOMESTIC-VIOLENCE-SURVIVOR’S-ACT CRITERIA IN SENTENCING DEFENDANT FOR THE MURDER OF HER ABUSIVE HUSBAND; SENTENCES SIGNIFICANTLY REDUCED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, reversed County Court’s application of the Domestic Violence Survivor’s Act (social Services Law 459-a) and significantly reduced the sentences for murder and possession of a weapon. Defendant shot and killed her husband. The jury rejected defendant’s “battered women’s syndrome” defense. But the Second Department found that the criteria for sentence reduction under the DV Survivor’s Act had been met by the evidence:

… [W]e hold that the County Court did not properly apply the DV Survivor’s Act when sentencing the defendant. Upon considering the plain language of the DV Survivor’s Act, the legislative history of the statute, and the particular circumstances of this case, we modify the judgment, on the facts and as a matter of discretion in the interest of justice, by reducing (1) the term of imprisonment imposed on the conviction of murder in the second degree from an indeterminate term of imprisonment of 19 years to life to a determinate term of imprisonment of 7½ years to be followed by 5 years of postrelease supervision, and (2) the term of imprisonment imposed on the conviction of criminal possession of a weapon in the second degree from a determinate term of imprisonment of 15 years to be followed by 5 years of postrelease supervision to a determinate term of imprisonment of 3½ years to be followed by 5 years of postrelease supervision, which terms shall run concurrently with each other. * * *

Upon consideration of the nature and circumstances of the crime, as well as the history, character, and condition of the defendant, we conclude that a sentence in accordance with the DV Survivor’s Act is warranted. The defendant is a 32-year-old mother of two young children, and has no known prior arrests or convictions. The defendant testified that she was repeatedly physically and sexually abused by Grover, as well as by other men in her past, and reportedly was sexually assaulted at the age of five. However, our examination under this factor does not end there. We also consider, among other things, the details of the crimes, including that the defendant shot Grover in the head as he was lying on the couch. Grover’s fatal injury was described as a hard contact wound in which the gun fired by the defendant was pressed against Grover’s skin, leaving a muzzle imprint. People v Addimando, 2021 NY Slip Op 04364, Second Dept 7-15-21

 

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THERE WERE PARALLEL DISCIPLINARY PROCEEDINGS STEMMING FROM PETITIONER’S ALLEGED ABUSE OF A PSYCHIATRIC PATIENT; THE ARBITRATOR’S FINDING THAT PETITIONER DID NOT ABUSE THE PATIENT WAS ENTITLED TO PRECLUSIVE EFFECT IN THE PARALLEL PROCEEDING (THIRD DEPT).

The Third Department, reversing the determination of the Administrative Law Judge (ALJ) in this employment disciplinary matter, determined the prior finding by the arbitrator in a parallel proceeding that petitioner did not abuse the psychiatric patient was entitled to preclusive effect:

Petitioner’s sole contention on appeal is that the ALJ erred in not giving preclusive effect to the arbitrator’s determination that petitioner’s conduct did not constitute physical abuse. We agree. “The underlying purpose of the doctrines of res judicata and collateral estoppel is to prevent repetitious litigation of disputes which are essentially the same” … . … [R]espondent contends that the issue decided by the arbitrator was not the identical issue before the ALJ. …

Respondent’s “Report of Investigation Determination” and OMH’s [Office of Mental Health’s] notice of discipline were issued four days apart and both referenced the same case number and charged petitioner with physically abusing the service recipient. Although neither the notice of discipline nor the arbitrator’s decision specifically cite the relevant portion of the Social Services Law associated with physical abuse, the arbitrator specifically took notice of said provision at the disciplinary hearing … . … [T]he arbitrator and the ALJ both reviewed the same videos of the underlying incident and petitioner’s interview. Although the arbitrator and the ALJ both agreed that petitioner pushed the service recipient’s head down into the restraint bed, the arbitrator concluded that petitioner was “cradling the neck of [the service recipient] at that time” such that his conduct did not constitute physical abuse. … [T]his was the same factual issue the ALJ later confronted. Matter of Anonymous v New York State Justice Ctr. for the Protection of People with Special Needs, 2021 NY Slip Op 03510, Third Dept 6-2-21

 

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FUNDS FOR PERSONAL CARE SERVICES ARE MEDICAID FUNDS SUBJECT TO THE AUDIT AND RECOUPMENT AUTHORITY OF THE CITY OF NEW YORK HUMAN RESOURCES ADMINISTRATION; APPELLATE DIVISION REVERSED (CT APP)..

The Court of Appeals, reversing the Appellate Division, determined funds paid for personal care were Medicaid funds which were subject to the audit and recoupment authority of the City of New York Human Resources Administration (HRA). The facts are explained in the Appellate Division decision:

For the reasons stated in the dissenting opinion below (Matter of People Care Inc. v City of New York, 175 AD3d 134, 147-152 [1st Dept 2020] [Richter, J.P., dissenting]), we conclude that the funds for personal care services paid to petitioner People Care, Inc. under the Health Care Reform Act (Public Health Law §§ 2807-v [1] [bb] [i], [iii]) are Medicaid funds subject to the audit and recoupment authority of the City of New York Human Resources Administration (HRA) in accordance with the parties’ 2001 contract. Matter of People Care Inc. v City of N.Y. Human Resources Admin., 2021 NY Slip Op 01834, CtApp 3-25-21

 

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CLASS CERTIFICATION FOR PERSONS DENIED PUBLIC ASSISTANCE BASED ON THE FAIR MARKET VALUE (FMV) OF THEIR VEHICLES WAS PROPER; THE OPT-IN PROCEDURE SHOULD BE USED TO IDENTIFY CLASS MEMBERS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the opt-in procedure should be used to identify members of the class who were denied public assistance based upon the fair market value (FMV) of their cars. The class certification by Supreme Court was found proper:

In our prior decision regarding this matter, we affirmed so much of Supreme Court’s judgment as annulled a determination of the Office of Temporary and Disability Assistance (hereinafter OTDA) denying petitioner’s application for public assistance … . We agreed with Supreme Court that the methodology that OTDA was using to calculate whether an applicant had available resources from an automobile — which focused on the fair market value (hereinafter FMV) of the applicant’s vehicle in excess of the statutory exemption (see Social Services Law § 131-n [e]) regardless of whether the applicant had any equity interest therein — was “irrational and unreasonable” … . * * *

… [T]he opt-in approach would prove more efficient … . … In those instances where the opt-in notice is returned as undeliverable, OTDA should then be required to conduct a manual file review. Matter of Stewart v Roberts, 2021 NY Slip Op 01105, Third Dept 2-18-21

 

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