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EVIDENCE NOT SUFFICIENT TO SUPPORT ‘INDICATED’ CHILD MALTREATMENT REPORT, DETERMINATION ANNULLED AND REPORT AMENDED TO ‘UNFOUNDED’ AND SEALED (FOURTH DEPT).

The Fourth Department determined the evidence of child maltreatment was insufficient and the “indicated” report maintained in the New York State Central Register of Child Abuse and Maltreatment should be amended to unfounded and sealed:

At the fair hearing, DSS had the burden of establishing by a fair preponderance of the evidence that petitioner maltreated the child by the use of excessive corporal punishment (see Social Services Law § 424-a [2] [d]), and that such corporal punishment impaired or was in imminent danger of impairing the child’s physical, mental, or emotional condition (see Social Services Law § 412 [2] [a]; Family Ct Act § 1012 [f] [i]). Impairment of mental or emotional condition is defined as “a state of substantially diminished psychological or intellectual functioning” (Family Ct Act § 1012 [h]). Physical impairment is defined as ” a state of substantially diminished physical growth, freedom from disease, and physical functioning’ ” … . …

Other than a general reference in DSS records that the child was “upset” by the incident, DSS did not present evidence that the incident physically, mentally, or emotionally impacted the 10-year-old child. The marks observed on the child’s back, i.e., the sole marks attributed to petitioner by a preponderance of the evidence, apparently resolved the day after petitioner struck him, and before the DSS case worker examined the child. Under the circumstances here, the evidence is insufficient to establish that the child suffered the requisite impairment of his physical, mental, or emotional well-being to support a finding of maltreatment. Thus, the determination that petitioner placed the child in imminent risk of physical or emotional impairment is not supported by substantial evidence, and we therefore annul the determination and grant the petition … . Matter of Jonathan L. v Poole, 2019 NY Slip Op 01908, Fourth Dept 3-15-19

 

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FAMILY COURT SHOULD HAVE APPOINTED A GUARDIAN FOR THE CHILD AND MADE THE FINDINGS NECESSARY FOR THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined that a guardian should have been appointed for the child and findings should have been made to allow the child to petition for special immigrant juvenile status (SIJS):

“When considering guardianship appointments, the infant’s best interests are paramount” … . Here, the Family Court erred in determining that the proposed guardian should not be appointed (see generally Family Ct Act § 355.5[7][d][ii]; Social Services Law § 371[7]), as it failed to base its decision on any assessment of the credibility of the witnesses at the hearing, and failed to examine the facts of the case within the context of the required best interests analysis … . …

… [T]he child is under the age of 21 and unmarried, and since we have found that the proposed guardian should have been appointed as the child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … .Further, based upon our independent factual review, the record supports a finding that reunification of the child with her father is not a viable option due to parental neglect … . Matter of Grechel L.J., 2018 NY Slip Op 08934, Second Dept 12-26-18

 

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HEARING IS REQUIRED TO DETERMINE WHETHER A GUARDIAN SHOULD BE APPOINTED FOR MOTHER IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, MOTHER SUFFERS FROM SCHIZOPHRENIA (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined a guardian should have been appointed for mother in the proceeding which terminated her parental rights:

It is well settled that courts cannot “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on the courts to protect such litigants”… . Indeed, “[t]he public policy of this State . . . is one of rigorous protection of the rights of the mentally infirm”… . Thus, ” where there is a question of fact . . . whether a guardian ad litem should be appointed, a hearing must be conducted’ ” … , and the failure to make such an inquiry once a meritorious question of a litigant’s competence has been raised requires remittal … .

… [W]e conclude that a meritorious question of the mother’s competence was raised. It is of no moment that the mother’s attorney did not move for the appointment of a guardian ad litem inasmuch as the court may make such an appointment on its own initiative (see CPLR 1202 [a] …). …

There is no dispute that the mother, who had been diagnosed with, inter alia, schizophrenia, had been in and out of psychiatric hospitals throughout her life. Indeed, at the time of the subject child’s birth, which was two years before this termination proceeding, the mother had been committed to a psychiatric unit after being found incompetent to stand trial in a criminal court. During the course of the hearing in this proceeding, the mother was involuntarily committed to a psychiatric unit, and the matter had to be adjourned until her release. Additionally, during the mother’s brief testimony upon resumption of the hearing, the court and the AFC [attorney for the child] had to interrupt her repeatedly inasmuch as her answers to questions were nonresponsive and, at times, completely nonsensical.

Given “the magnitude of the rights at stake [in a termination proceeding], as well as the allegations of mental illness” …, we conclude that the court erred in failing to hold a hearing on whether a guardian ad litem should have been appointed for the mother. Matter of Jesten J.F. (Ruth P.S.), 2018 NY Slip Op 08812, Fourth Dept 12-21-18

 

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FAMILY COURT’S TERMINATION OF MOTHER’S PARENTAL RIGHTS WAS NOT SUPPORTED BY THE EVIDENCE, MOTHER WAS DEALING WITH HER MENTAL HEALTH AND DRUG PROBLEMS AND THE SPECIAL NEEDS OF THE CHILDREN WERE BEING ADDRESSED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined that the proof requirements for the termination of parental rights were not met:

To establish that a parent has permanently neglected a child, an agency must demonstrate, by clear and convincing evidence, that the parent “failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency 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” (Social Services Law § 384-b[7][a]).

… The mother testified that she complied with all of the requirements that were communicated to her in order for the children to be returned to her care. According to the mother, these requirements included visiting with the children regularly, undergoing multiple mental health evaluations, consistently participating in mental health treatment, undergoing drug testing, completing parenting skills classes, visiting the children’s school as much as allowed, and keeping up with the children’s health status. The case files … generally supported the mother’s testimony … .

In light of the petitioner’s failure to adduce other evidence beyond the mother’s own testimony as to the initial reasons for the children’s removal from her care, the significance of the mother’s mental health diagnosis, or the significance of the special needs diagnoses of the children, there was no basis for a determination that the mother’s testimony on these subjects demonstrated a failure “to take such steps as may be necessary to provide an adequate, stable home and parental care for the child[ren] within a period of time which is reasonable under the financial circumstances available to the parent” … . Matter of Jaylen R.B. (Lisa G.)2018 NY Slip Op 08643, Second Dept 12-19-18

 

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COLLATERAL ESTOPPEL APPLIED TO THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that the arbitration proceeding conducted by Office for People with Developmental Disabilities (OPWDD) had a collateral estoppel effect upon subsequent proceedings concerning the same matter conducted by the Justice Center for the Protection of People with Special Needs. Petitioner was accused of providing marijuana to a resident of a group home for persons with developmental disabilities. The OPWDD arbitration concluded petitioner was not guilty. However the Justice Center essentially sustained the charges. The central question was whether the OPWDD and the Justice Center were in privity, such that the Justice Center must accept the outcome of the OPWDD arbitration:

Collateral estoppel applies to arbitration proceedings, and when the doctrine’s requirements are satisfied, “[an] arbitrator’s factual findings must be accorded collateral estoppel effect” … .

…[T]the Justice Center shared interests with OPWDD in the disciplinary proceeding stemming from its fundamental statutory obligation to “protect[] . . . vulnerable persons who reside in or receive services from [state-operated] facilities” and “assur[e], on behalf of the state, that vulnerable persons are afforded care that is of a uniformly high standard” … . The Justice Center directly served these purposes by participating as counsel in the disciplinary proceeding conducted by OPWDD pursuant to its governing regulations and the pertinent collective bargaining agreement to determine whether petitioner should be terminated from her employment working with vulnerable persons… . …

… The Justice Center is required by statute to develop the code of conduct that governs OPWDD employees such as petitioner who regularly work with vulnerable persons in facilities like the group home at issue here … . …

… [T]he OPWDD form that was used to report the incident … included a section indicating that the Justice Center had been notified and providing the date, time and identification number of the notification … . The Justice Center’s subsequent investigation of the incident was carried out by an investigator who testified that he was employed by OPWDD. Matter of Anonymous v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 07996, Third Dept 11-21-18

SOCIAL SERVICES LAW (COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))/ARBITRATION (COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))/COLLATERAL ESTOPPEL (ARBITRATION, COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))/CIVIL PROCEDURE (COLLATERAL ESTOPPEL, ARBITRATION, COLLATERAL ESTOPPEL APPLIED TO OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES’ (OPWDD’S) ARBITRATION PROCEEDINGS WHICH FOUND PETITIONER WAS NOT GUILTY OF SUPPLYING MARIJUANA TO A RESIDENT OF A GROUP HOME FOR PERSONS WITH DEVELOPMENTAL DISABILITIES, THE SUBSEQUENT PROCEEDINGS BY THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS WERE BOUND BY THE FINDINGS OF THE OPWDD ARBITRATION (THIRD DEPT))

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PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT).

The Second Department, reversing the Commissioner of the New York State Office of Temporary and Disability Assistance, determined the Nassau County Department of Social Services’ notice to petitioner of the termination of her public assistance benefits was defective and violated her right to due process. The notice did not include any specific instance of a refusal to cooperate with the employment training program, and the subsequent hearing considered evidence not mentioned in the notice:

A local agency may not discontinue a recipient’s public assistance benefits unless the recipient’s failure to comply with one of the department’s work rules is found to be willful and without good cause” (,,,see Social Services Law § 341[1]). A social services agency is required to provide an individual whose public assistance benefits are being discontinued with written notice that includes “the specific instance or instances of willful refusal or failure to comply without good cause” with employment requirements (Social Services Law § 341[1][b]). “A notice specifying the wrong charge as the basis for a reduction in benefits does not comply with the regulatory standard, nor with the constitutional standards of due process”… .

Here, the petitioner correctly contends that the agency’s notice was defective because it did not include any specific instances of her willful refusal without good cause to cooperate with the employment training program … . Additionally, at the fair hearing, the agency offered evidence that the petitioner submitted a falsified timesheet indicating that she continued to attend training after her participation in the program was terminated, a charge not included in the notice. Accordingly, because the notice lacked specificity and failed to adequately advise the petitioner of the issues which were the subject of the hearing, the notice violated the petitioner’s right to due process of law … . Matter of Pearl v Imhof, 2018 NY Slip Op 08024, Second Dept 11-21-18

SOCIAL SERVICES LAW (PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/MUNICIPAL LAW (SOCIAL SERVICES LAW, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/CONSTITUTIONAL LAW  (SOCIAL SERVICES LAW, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/EVIDENCE (SOCIAL SERVICES LAW, PUBLIC ASSISTANCE BENEFITS, NOTICE, HEARING, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))

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FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that Family Court did not have enough evidence before it to justify denying mother’s petition to modify custody. Family Court relied upon a hearsay letter from the NYS Office of Children and Family Services Child Abuse and Maltreatment Register to the effect that certain allegations against the father were unfounded or unsubstantiated:

First, the Family Court improperly denied the mother an opportunity to respond to the “unfounded” letter, which was hearsay. Moreover, although the father apparently had it in his possession for approximately two months, he did not provide it to her until the September 20 court appearance.

Second, * * * even if the “unsubstantiated” letter referred to the report made by the older child’s school social worker, that letter did not disprove the mother’s uncontroverted assertion that, both before and after that report was made, the children had expressed fear of and a desire not to visit with the father. …

Finally, to the extent that Family Court was making a determination that the parties’ child’s fear of his father was unfounded based on the “unsubstantiated” letter, and that modification was therefore not in the child’s best interests, this was error. Since this was the parties’ first appearance before this judge, the court did not have sufficient information about the parties and their child to make a comprehensive and independent determination about the child’s best interests … . Matter of Juliette S. v Tykym S., 2018 NY Slip Op 07960, First Dept 11-20-18

FAMILY LAW (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/CUSTODY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/ABUSE (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/HEARSAY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))

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MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT).

The Third Department, annulling the Commissioner of Health’s determination, in a full-fledged opinion by Justice McCarthy, sent the matter back with instruction to consider whether there was a conflict between the Medicaid (Department of Social Services, DSS) regulations and the Department of Heath’s (DOH’s) guidelines. If there is a conflict, the regulations prevail. Petitioner’s request for osseous surgery to reconstruct her jaw after damage caused by cancer treatments was denied. The Commissioner had determined the surgery was not covered:

Medicaid does not cover every medically necessary procedure; “medical necessity and coverage are distinct concepts” … . A “medical necessity” analysis is only required and relevant when the requested procedure is covered in the first place. Thus, the initial question is whether osseous surgery is covered by New York’s Medicaid program. * * *

The Commissioner committed an error of law when he determined, based on the Medicaid dental manual and without recognizing a potential conflict between the manual and the regulations, that osseous surgery cannot be a covered service under Medicaid. Due to this error, respondents did not reach other issues. Specifically, there was no determination as to whether petitioner established that her request for prior approval of that surgery should be granted pursuant to the regulation as a “dental service[] required for . . . the relief of pain” (18 NYCRR 506.2 [b] [1]). If she did not meet her burden, there is no conflict between the regulation and guidelines, so the Medicaid dental manual would prevent approval of the surgery. If petitioner did establish that the surgery is required to relieve her pain (which would, perforce, mean that the surgery was medically necessary), the regulations would prevail and the Commissioner must approve the surgery as covered by Medicaid. Because this issue requires factual findings and falls within DOH’s expertise, it should be decided by the agency in the first instance … . Matter of Rovinsky v Zucker, 2018 NY Slip Op 07026, Third Dept 10-18-18

MEDICAID (MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT))/ADMINISTRATIVE LAW (MEDICAID COVERAGE, MATTER REMITTED TO THE COMMISSIONER OF HEALTH TO DETERMINE WHETHER BONE SURGERY TO REPAIR CANCER-RELATED DAMAGE TO PETITIONER’S JAW IS COVERED UNDER MEDICAID, IF THERE IS A CONFLICT BETWEEN THE DSS REGULATIONS AND THE DEPARTMENT OF HEALTH’S GUIDELINES, THE REGULATIONS CONTROL (THIRD DEPT))

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ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, over an extensive dissent, determined that an adjudicated juvenile delinquent was not eligible for special immigrant juvenile status (SIJS):

On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the child) for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Specifically, the Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent. … [W]e agree with the Family Court’s determination and conclude that such a placement does not satisfy the requirement of dependency under the statute. * * *

We hold that the child herein is not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In fact, even while under probation, his encounters with the law persisted. In effect, the child attempts to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. We cannot fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court. Matter of Keanu S., 2018 NY Slip Op 06918, Second Dept 10-17-18

FAMILY LAW (ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)  ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/JUVENILE DELINQUENT (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

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MOTHER’S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT).

The Second Department determined that mother's mental illness supported the neglect finding and an order requiring mother to cooperate with medication management by her mental health service providers:

Mental illness means “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act” (Social Services Law § 384-b[6][a]). “While parental neglect may be based on mental illness, proof of a parent's mental illness alone will not support a finding of neglect”… . Rather, the petitioner must adduce evidence sufficient to “establish a causal connection between the parent's condition, and actual or potential harm to the [child]” … .

… [T]the mother's contention that the Family Court acted in excess of its jurisdiction or violated her constitutional right to direct her own medical treatment when it directed that she comply with medication management recommended by her mental health service providers is without merit, since the court did not order the forcible administration of medication … . Matter of Nialani T. (Elizabeth B.), 2018 NY Slip Op 06019, Second Dept 9-12-18

FAMILY LAW (MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))

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