You are here: / Social Services Law
,

IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, modifying Supreme Court, determined the amount of an applicant’s equity in an automobile, not the fair market value (FMV), should be used in calculating whether an applicant is eligible for public assistance. Here the applicant owed more than the car was worth, but she was erroneously deemed ineligible because of the fair market value of the car. The Third Department further determined that the applicant was entitled to discovery in her effort to get class action certification seeking retroactive relief for persons who had been wrongly denied public assistance under similar circumstances:

Only the net amount that could be received upon the sale of an asset that is encumbered by an outstanding loan balance, i.e., the FMV less the outstanding loan balance, could be available to eliminate or reduce an applicant’s need for public assistance. The arbitrary nature of OTDA’s [Office of Temporary and Disability Assistance’s] contrary position is aptly illustrated in this case, where the sale of the vehicle would not have generated any resources that petitioner could have used to meet her own support needs. Indeed, based on the automobile’s FMV, she would not have received enough upon its sale to pay the entire outstanding loan balance. For these reasons, we conclude that Supreme Court properly held that the extent to which the FMV of an automobile that exceeds the exempt amount is an available resource must be determined based on the applicant’s equity interest therein, and that OTDA’s contrary interpretation was irrational and unreasonable. * * *

… [T]he present record does not permit identification of the number of individuals who were the subject of adverse action based on application of respondent’s erroneous rule within the specified time period. The petition seeks a judgment directing respondent to identify all individuals meeting the characteristics of the proposed class and, in her brief on appeal, she again seeks discovery regarding class size. Timely requests for disclosure on the issue of numerosity must be granted … . Matter of Stewart v Roberts, 2018 NY Slip Op 04609, Third Dept 6-21-18

​SOCIAL SERVICES LAW (PUBLIC ASSISTANCE, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/PUBLIC ASSISTANCE (WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/CIVIL PROCEDURE (CLASS ACTIONS, DISCOVERY , NUMEROSITY, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/CLASS ACTIONS (DISCOVERY, NUMEROSITY, IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/DISCOVERY (CLASS ACTIONS, NUMEROSITY,  IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))/NUMEROSITY (CLASS ACTIONS, DISCOVERY,  IN DETERMINING ELIGIBILITY FOR PUBLIC ASSISTANCE THE APPLICANT’S EQUITY IN AN AUTOMOBILE, NOT ITS FAIR MARKET VALUE, MUST BE CONSIDERED, THE APPLICANT WAS ENTITLED TO DISCOVERY TO DETERMINE HOW MANY OTHERS HAVE BEEN AFFECTED BY THE WRONG ASSET-CALCULATION TECHNIQUE IN SEEKING CLASS CERTIFICATION (THIRD DEPT))

,

TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP).

The Court of Appeals, reversing the Appellate Division, in a brief memorandum decision, determined the petitioner agency did not meet its burden of demonstrating father, who was incarcerated, had abandoned his child:

An order terminating parental rights may be entered upon the ground that a child’s parent “abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court” … . A child is “abandoned” within the meaning of Social Services Law § 384-b, if the “parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and  communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency” … . Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary … .

The petitioner agency bears the burden of proving abandonment by clear and convincing evidence… . Here, petitioner’s caseworker testified that respondent—who was incarcerated—did not visit with the child or communicate with the caseworker or other agency personnel in the six months preceding the filing of the abandonment petition. However, the record is bereft of evidence establishing that respondent failed to communicate with the child, directly or through the child’s foster parent, during the relevant time period. Thus, petitioner did not meet its burden of demonstrating, by clear and convincing evidence, that respondent abandoned the child. Matter of Mason H. (Joseph H.), 2018 NY Slip Op 04384, CtApp 6-14-18

FAMILY LAW (PARENTAL RIGHTS, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/PARENTAL RIGHTS (TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/ABANDONMENT (FAMILY LAW, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/TERMINATION OF PARENTAL RIGHTS (ABANDONMENT, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))

, ,

PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID-REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT).

The First Department, annulling the determination of the NYS Office for People with Developmental Disabilities, held that the petitioner demonstrated an intellectual disability qualifying her for Medicaid-reimbursed home and community based services:

In order to obtain Medicaid-reimbursed home and community based services, an applicant must demonstrate that he or she suffers from a “developmental disability.” An “intellectual disability” that originated before age 22, is expected to continue indefinitely, and constitutes a “substantial handicap” to the person’s ability to function normally in society, is a qualifying condition (Mental Hygiene Law § 1.03[22] [a][1], [b], [c] and [d]). The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (5th ed 2013) (Manual) defines “intellectual disability” as a disorder characterized by, inter alia, (1) general deficits in areas such as reasoning, problem solving and abstract thinking and (2) deficits in adaptive functioning, such as how well the person meets community standards of personal independence and social responsibility as compared to others of similar age and social responsibility. The term “intellectual disability” replaced the term “mental retardation.”

Here, respondent’s determination is not supported by substantial evidence … . Rather, the record demonstrates that petitioner met the qualifications as all of the evaluations that were performed before petitioner was 22 years old demonstrated an I.Q. below 70, which was the rough cut off for normal intellectual function. Deficits in her adaptive functioning were also noted repeatedly over the years. Moreover, it was entirely speculative to opine that petitioner’s I.Q. would have been higher but for co-occurring conditions. Matter of Spencer-Cedeno v Zucker, 2018 NY Slip Op 03488, First Dept 5-15-18

​MEDICAID (INTELLECTUAL DISABILITY, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))/MENTAL HYGIENE LAW  (INTELLECTUAL DISABILITY, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))/INTELLECTUAL DISABILITY (MEDICAID, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))/DEVELOPMENTAL DISABILITY, MEDICAID, PETITIONER DEMONSTRATED AN INTELLECTUAL DISABILITY QUALIFYING HER FOR MEDICAID REIMBURSED HOME AND COMMUNITY BASED SERVICES, CONTRARY FINDING BY THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ANNULLED (FIRST DEPT))

PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT).

The Third Department determined petitioner, an employee of the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office, “committed acts of neglect [within the meaning of the Social Services Law] when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence.” Petitioner had used the work “retarded” in conversations overheard by two service recipients:

… [N]eglect is defined as an action “that breaches a custodian’s duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient” (Social Services Law § 488 [1] [h]). Here, it is undisputed that petitioner used the word “retarded” while in a classroom when she was discussing mandated overtime work with the staff. Petitioner’s statement was overheard by two of the service recipients, who were, not surprisingly, offended by the word as evidenced by one service recipient running away from the classroom to report the incident and the other still being upset several days after the incident. Both of these service recipients were diagnosed with mild developmental disabilities, as well as a legion of other diagnoses. Petitioner, who had worked at the Brooklyn Developmental Disabilities Service Office for 10 years, worked directly with the service recipients and was familiar with their emotional and psychological conditions. Further, petitioner is charged with caring for these service recipients, who of course develop trust for their aides. Given this context, it is foreseeable that the word used by the trusted caregiver would be likely to seriously impair the service recipients’ already fragile emotional and psychological condition and there is no need for expert testimony to establish same … . As such, substantial evidence supports respondent’s final determination that petitioner committed a category three act of neglect … . Matter of Kelly v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 03407, Third Dept 5-10-18

SOCIAL SERVICES LAW (PEOPLE WITH DEVELOPMENTAL DISABILITIES, NEGLECT, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))/DEVELOPMENTALLY DISABLED PERSONS (NEGLECT, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))/NEGLECT (DEVELOPMENTALLY DISABLED PERSONS, SOCIAL SERVICES LAW, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))/RETARDED'(PEOPLE WITH DEVELOPMENTAL DISABILITIES, NEGLECT, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))

,

NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined a psychological exam of mother should not have been ordered prior to a fact-finding hearing in this neglect proceeding. The court had no indication mother suffered from mental illness:

… [T]he Suffolk County Department of Social Services (hereinafter the petitioner) filed a neglect petition against the mother, alleging, among other things, that she failed to “work cooperatively with the appropriate agencies” to ensure that the subject child, whom the mother reported to have been sexually abused, “would receive appropriate counseling and services.” The petitioner also alleged that the mother failed “to take any action to ensure that [the child] was being adequately and appropriately cared for by his father,” who was alleged to be abusive toward the child. The mother consented to the temporary removal of the child. Thereafter, prior to a fact-finding hearing, the petitioner requested that the mother be directed to submit to a psychological examination. …

The determination whether to direct a psychological examination is within the sound discretion of the Family Court … . Under the circumstances of this case, it was an improvident exercise of discretion for the Family Court to direct the mother to submit to a psychological examination prior to a fact-finding hearing. The record is devoid of any indication that the mother may suffer from a mental illness. Nor did the petition contain any allegations which placed the mother’s mental health at issue … . Matter of Tyriek J. (Tamika J.), 2018 NY Slip Op 03361, Second Dept 5-9-18

​FAMILY LAW (NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))/NEGLECT (FAMILY LAW, NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))/PSYCHOLOGICAL EXAM (FAMILY LAW, NEGLECT, NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))

, ,

FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Department of Social Services made reasonable efforts to prevent or eliminate the need for the temporary removal of the children while the neglect petition is pending. The court noted that Family Court did not have the power to find a foster home for the family’s cat:

… [T]he court lacked the authority to order it to find a foster home for respondents’ cat, and we therefore further modify the order accordingly. “Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … , or by the New York Constitution (see NY Const, art VI, § 13). Inasmuch as animals are property … , and Family Court does not have jurisdiction over matters concerning personal property, we conclude that the court exceeded its authority in directing petitioner to find foster care for respondents’ cat. Matter of Ruth H. (Marie H.), 2018 NY Slip Op 01840, Fourth Dept 3-16-18

FAMILY LAW (PETS, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/FOSTER CARE (FAMILY LAW, PETS, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/PETS (FAMILY LAW, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))

,

PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child, Tabitha, should not have been removed from her foster home and placed with her maternal grandmother:

… T]he determination of the Family Court that it was in Tabitha’s best interests to be removed from her foster home, where she had resided for over four years, and to be placed in the kinship foster home of the maternal grandmother lacks the requisite sound and substantial basis in the record … . In determining the best interests of the child, “[t]here is no presumption that the children’s best interests will be better served by a return to a family member” … . Indeed, ” Social Services Law § 383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody'”… . “Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart” … . Here, the court gave inappropriate weight to this preference, as Tabitha and her brother only shared a household with the maternal grandmother for the first five months of Tabitha’s life (see id.). Moreover, the record reveals that Tabitha has closely bonded with her foster family and remains healthy, happy, and well-provided for … . Therefore, the court erred in determining that it was in Tabitha’s best interests to be moved to the kinship foster home of the maternal grandmother rather than remain with her foster mother for the purpose of adoption, which the record shows is the intent of the foster mother … . Matter of Tabitha T. S. M. (Tracee L. M.–Candace E.), 2018 NY Slip Op 01468, Second Dept 3-7-18

FAMILY LAW (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/CUSTODY (FAMILY LAW, PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/FOSTER CARE  (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))

, , ,

ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT).

The First Department determined plaintiff mother was entitled to the infant plaintiff’s foster care records in connection with her claim that SCO Family Services negligently certified the individual defendant as a foster parent, and failed to properly supervise the foster home:

Pursuant to Social Services Law § 372(1), SCO was required to maintain records while the children were in foster care. Those records are confidential, but are discoverable pursuant to article 31 of the CPLR (Social Services Law § 372[3]). The statutory confidentiality requirement is intended to protect the privacy of children in foster care and their natural parents … , not to prevent former foster children from obtaining access to their own records.

When a former foster child “seeks her own records, so she can further her own suit against the defendant custodian of those records, who would otherwise have unequal access to them”… , she is “presumptively entitled to her own records” and “only a powerfully compelling showing would justify the court in potentially restricting” her access to the records … .

In this case, the court properly undertook in camera review of the foster care records to ensure that no private information of nonparties would be disclosed. However, the court erred in determining that the identities of ACS caseworkers, mental health professionals and other professionals should be redacted. Plaintiffs sought access to those witnesses to determine whether they had any relevant knowledge, and SCO did not articulate any privacy interests of those professionals that would warrant redacting their names from the foster care records. K.B. v SCO Family of Serv., 2018 NY Slip Op 01400, Second Dept 3-1-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/DISCOVERY (FAMILY LAW, FOSTER CARE,  ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/FOSTER CARE (DISCOVERY, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/NEGLIGENCE (DISCOVERY, FOSTER CARE RECORDS, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))

ALTHOUGH THE CHILD SUPPORT INCOME FOR TWO CHILDREN IN COLLEGE WAS COUNTED AS PART OF THE HOUSEHOLD INCOME, THE TWO COLLEGE STUDENTS WERE PROPERLY NOT COUNTED FOR FOOD STAMP ELIGIBILITY, THE DENIAL OF FOOD STAMPS WAS PROPER (SECOND DEPT).

The Second Department determined the Commissioner of the NYS Office of Temporary and Disability Assistance properly interpreted the food stamp regulations. Petitioner’s application to continue her Supplemental Nutritional Assistance Program (SNAP) (food stamp) benefits was denied. Petitioner had five children, two in college. The two college students were not counted as part of the household for SNAP purposes but the child support income petitioner received for the two college students was counted. So petitioner’s income was deemed too high for food stamp eligibility:

Pursuant to 7 CFR 273.7(a)(1), “[a]s a condition of eligibility for SNAP benefits, each household member not exempt under paragraph (b)(1) of this section must comply with the following SNAP work requirements,” including registering for work. According to 7 CFR 273.7(b)(1)(viii), students enrolled at least half time in institutions of higher education are only exempt if they meet “the student eligibility requirements listed in” 7 CFR 273.5(b), which includes students under 18, students with special needs, students in work study programs, or students employed for a minimum of 20 hours per week.

Similarly, 18 NYCRR 387.16(d) provides for the inclusion of income from nonhousehold members who have been disqualified for an intentional program violation, ineligible alien status, failure to attest to citizenship or alien status, or failure to comply with a food stamp work registration or work requirement as provided in 18 NYCRR 385.3. Under 18 NYCRR 385.3 and 18 NYCRR 387.1(jj), such students are not exempt from work requirements, and are not eligible for food stamps. Pursuant to 18 NYCRR 387.16(d) their income has to be included in household income.

The college students were not employed a minimum of 20 hours per week or otherwise eligible for an exemption. Accordingly, their income was properly included in household income. Matter of Leggio v Devine, 2018 NY Slip Op 01312, Second Dept 2-28-18

SOCIAL SERVICES LAW (FOOD STAMPS, ALTHOUGH THE CHILD SUPPORT INCOME FOR TWO CHILDREN IN COLLEGE WAS COUNTED AS PART OF THE HOUSEHOLD INCOME, THE TWO COLLEGE STUDENTS WERE PROPERLY NOT COUNTED FOR FOOD STAMP ELIGIBILITY, THE DENIAL OF FOOD STAMPS WAS PROPER (SECOND DEPT))/FOOD STAMPS (ALTHOUGH THE CHILD SUPPORT INCOME FOR TWO CHILDREN IN COLLEGE WAS COUNTED AS PART OF THE HOUSEHOLD INCOME, THE TWO COLLEGE STUDENTS WERE PROPERLY NOT COUNTED FOR FOOD STAMP ELIGIBILITY, THE DENIAL OF FOOD STAMPS WAS PROPER (SECOND DEPT))/SUPPLEMENTAL NUTRITIONAL ASSISTANCE PROGRAM (SNAP) (FOOD STAMPS, ALTHOUGH THE CHILD SUPPORT INCOME FOR TWO CHILDREN IN COLLEGE WAS COUNTED AS PART OF THE HOUSEHOLD INCOME, THE TWO COLLEGE STUDENTS WERE PROPERLY NOT COUNTED FOR FOOD STAMP ELIGIBILITY, THE DENIAL OF FOOD STAMPS WAS PROPER (SECOND DEPT))/SNAP (FOOD STAMPS, ALTHOUGH THE CHILD SUPPORT INCOME FOR TWO CHILDREN IN COLLEGE WAS COUNTED AS PART OF THE HOUSEHOLD INCOME, THE TWO COLLEGE STUDENTS WERE PROPERLY NOT COUNTED FOR FOOD STAMP ELIGIBILITY, THE DENIAL OF FOOD STAMPS WAS PROPER (SECOND DEPT))

, ,

ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT).

The First Department noted that a finding mother is mentally ill within the meaning of the Social Services Law is not, as a nondispositional order, appealable as of right. However, because of the stigma attached to the finding, the court deemed the notice of appeal to be a request for leave to appeal and granted it. The mental illness finding was affirmed:

Although this nondispositional order is not appealable as of right (see Family Ct Act § 1112[a]), the finding that the mother is mentally ill within the meaning of Social Services Law § 384-b constitutes a permanent and significant stigma that might impact her status in future proceedings … . Accordingly, the Court, on its own motion, deems the notice of appeal to be a request for leave to appeal, and hereby grants leave to appeal … . Matter of Chad Nasir S. (Charity Simone S.), 2018 NY Slip Op 00026, First Dept 1-2-18

APPEALS (FAMILY LAW, SOCIAL SERVICES LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))/FAMILY LAW (APPEALS, SOCIAL SERVICES LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))/MENTAL ILLNESS (APPEALS, FAMILY LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))/SOCIAL SERVICES LAW (APPEALS, MENTAL ILLNESS, FAMILY LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy