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Derivative Severe Abuse Finding Reversed

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows:

…[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a determination of severe abuse requires that the court find, by clear and convincing evidence, as relevant here, not only that “the child [is] an  abused  child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved  indifference to human  life, which  result in serious physical injury to the child as defined in [Penal Law  § 10.00 (10)]” (Social Services Law  §  384-b  [8] [a] [i]), but  also that petitioner “made  diligent efforts to encourage  and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and  such  efforts have been unsuccessful and are unlikely to be successful in the foreseeable future” (Social Services Law  §  384-b  [8] [a] [iv]). Here, inasmuch as Family Court did not make either of the foregoing determinations and the evidence in the record does not enable us to do so, a finding of severe abuse against respondent cannot be sustained.  Matter of Nicholas S…, 511568, 3rd Dept 6-27-13

 

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Failure to Contest Referral of Support-Arrearages to Tax Department Precluded Further Court Action

The Third Department determined plaintiff’s failure to administratively challenge the referral of his support-arrearages case to the Department of Taxation and Finance and the subsequent issuance of a tax warrant (pursuant to provisions of the Social Services Law) barred his action against the Department in Supreme Court.  Plaintiff was seeking a declaratory judgment and injunctive relief after the Department seized his vehicles to satisfy the judgment for support arrearages.  Koziol v State of New York…, 514767, 3rd Dept, 6-6-13

 

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“Depraved Indifference to Human Life” Defined Differently in Family Law, as Opposed to Criminal Law, Context​

The Court of Appeals, in a full-fledged opinion by Judge Read, determined that the phrase “depraved indifference to human life” as it is used in Social Services Law 384-b(8)(a)(i) to define when a child has been “severely abused” does not have the meaning ascribed to the same phrase under the Penal Law.  In addition, the court clarified the statutory conditions which relieve a social services agency of the requirement to make diligent efforts to reunite the child with the abusive parent.  Judge Read wrote:

Social Services Law § 384-b (8) (a) (i) provides that a child can be found to be severely abused “as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved indifference to human life” (emphases added). Under the Penal Law, however, a crime requiring proof of an intent to kill can never be committed with depraved indifference … [“[I]t has never been permissible in New York for a jury to convict a defendant of depraved indifference murder where the evidence produced at trial indicated that if the defendant committed homicide at all, he committed it with the conscious objective of killing the victim” … . Additionally, “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” …, whereas acts of child abuse necessarily involve one-on-one violence. In short, our depraved indifference jurisprudence under the Penal Law has no bearing on whether a child is severely abused within the meaning of Social Services Law § 384-b (8) (a) (i). For purposes of that statute “circumstances evincing a depraved indifference to human life” refers to the risk intentionally or recklessly posed to the child by the parent’s abusive conduct.  Matter of Dashawn W …, No 71, CtApp, 4-25-13

 

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Assets Allegedly Wrongly Appropriated by Fiduciary Deemed “Asset-Transfers” for Purpose of Qualifying for Medicaid 

Pursuant to a power of attorney granted to Williams, petitioners’ decedent’s assets were transferred to joint accounts with Williams and decedent on the accounts.  Some of the funds were used by Williams for personal purposes.  When decedent applied for Medicaid benefits to pay for nursing home care, the benefits were denied by the Department of Health because it was determined that certain assets had been transferred for the purpose of qualifying for Medicaid.  Petitioners brought an Article 78 proceeding arguing that Williams wrongly appropriated the assets and, therefore, the assets were not transferred to qualify for Medicaid.  In upholding the Department of Health’s asset-transfer finding, the Third Department wrote:

In this regard, petitioners contend that Williams breached her fiduciary duty to decedent and engaged in self-dealing, thus establishing that “the assets [in question] were transferred exclusively for a purpose other than to qualify for medical assistance” and invoking the exception set forth in Social Services Law § 366 (5) (e) (4) (iii) (B). Although there arguably is evidence in the record that could support such a conclusion, given the existence of the joint checking accounts and the powers conferred upon Williams with respect to financial transactions, substantial evidence supports the Department of Health’s conclusion that petitioners failed to overcome the presumption that the stocks were sold and “the proceeds were transferred – at least in part – in order to qualify for Medicaid” … .Petitioners’ related assertion – that decedent lacked the mental capacity to manage his finances – is equally unavailing, as the record does not establish that decedent was incapacitated at the time the power of attorney was granted or the  joint accounts at issue  were  established. Under such circumstances, substantial evidence supports the Department of Health’s determination that petitioners  did  not  demonstrate  their entitlement to the claimed exception.  Matter of Conners… v Berlin …, 515536, 3rd Dept, 4-11-13

 

 

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State Equal Access to Justice Act 

In a full-fledged opinion by Justice Mazzarelli, the First Department interpreted the State Equal Access to Justice Act to allow the award of attorney’s fees under the “catalyst theory.” The petitioner had brought an Article 78 proceeding to compel the City to reinstate public assistance benefits after the Office of Temporary and Disability Assistance had ordered the City to do so. Two weeks after the Article 78 proceeding was started, the City complied with the order and reinstated the benefits.  The First Department determined the Article 78 proceeding was the “catalyst” for the City’s reinstatement of the benefits and, under the State Equal Access to Justice Act, the petitioner was entitled to attorney’s fees.  In re Luz Solla v Berlin, et al, 7847 & 401178/11, 2259, 1st Dept. 3-5-13

 

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