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MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT.

The Second Department determined mother’s motion to vacate the dispositional portions of the orders terminating her parental rights based upon mental illness and permanent neglect should have been granted. Mother defaulted, but moved to vacate both the fact-finding a dispositional aspects of the orders:

Family Court improvidently exercised its discretion in denying that branch of the mother’s motion which was to vacate the dispositional portions of the orders of fact-finding and disposition. Although, in the context of a proceeding pursuant to Social Services Law § 384-b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case … , the circumstances of this case were not such that a separate dispositional hearing was unwarranted … . Furthermore, in the case of permanent neglect, the Family Court may not dispense with a dispositional hearing in the absence of the consent of the parties … . Consequently, the mother was entitled to vacatur of the dispositional portions of the orders of fact-finding and disposition in the interest of justice … . Matter of Isabella R.W. (Jessica W.), 2016 NY Slip Op 05715, 2nd Dept 8-3-16

FAMILY LAW (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)/PARENTAL RIGHTS, TERMINATION OF (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)/PERMANENT NEGLECT (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)

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EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW.

The First Department, in a full-fledged opinion by Justice Acosta, over a two-justice dissenting opinion, reversing Supreme Court, determined: (1) although the finding that petitioner had violated work-related requirements under the family assistance program was reversed and the reduction in petitioner's benefits had been restored, the appeal was not moot; (2) the wording of the notices of required meetings for work-assessment under the family assistance program did not violate the Social Services Law; and (3) the propriety of the “autopost” system by which petitioner's failure to attend a scheduled meeting resulted in an automatically posted infraction must be determined in the context of a summary judgment or a trial (not this declaratory judgment action). The dissenters argued the appeal was moot and should not have been heard:

… [W]e find that the notices at issue do not violate the applicable regulatory scheme. In reviewing these notices, we are mindful that “[t]he standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious” … , or contrary to the statute under which it was promulgated … . The party challenging a regulation has the heavy burden of establishing that “it is so lacking in reason for its promulgation that it is essentially arbitrary” … . * * *

The regulation and notices closely track the statute, which focuses on how a recipient can demonstrate good cause for having failed to comply with work requirements. In fact, every requirement set forth in SSL § 341 is incorporated into the notices. The crux of Supreme Court's holding is that the regulation and notices do not satisfy a requirement that recipients be expressly told that they can avoid sanction by asserting compliance. The statute on its face, however, simply contains no such requirement. This is particularly true for the notice of decision, because SSL § 341(1)(b) does not require that the notice give examples of good cause. Under these circumstances, this Court cannot find that 18 NYCRR 385.11 and the notices were unreasonable or arbitrary. Matter of Puerto v Doar, 2016 NY Slip Op 04463, 1st Dept 6-9-16

SOCIAL SERVICES LAW (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/FAMILY ASSISTANCE PROGRAM (NYC) (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/APPEALS (EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)

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SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT.

The Court of Appeals, over an extensive two-judge dissent, determined, under the Executive Law, a special prosecutor has the authority to bring a criminal case in local court concerning the abuse of vulnerable persons pursuant to the “Protection of People with Special Needs Act.” Defendant unsuccessfully argued the Executive Law limited the power of the special prosecutor to criminal prosecutions in County and Supreme Court:

There is no indication from the statute that the special prosecutor’s powers are limited by section 552 (2) (c). That section merely sets forth the requirement that the special prosecutor consult with the district attorney of the pertinent county should the special prosecutor wish to appear in County Court or Supreme Court, or before the grand jury, for the purposes of managing or conducting before such court or grand jury a criminal action or proceeding involving the abuse or neglect of a vulnerable person. There is no indication that the statute governs proceedings in local courts at all. People v Davidson, 2016 NY Slip Op 04326, CtApp 6-7-16

 

CRIMINAL LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/EXECUTIVE LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/SOCIAL SERVICES LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/VULNERABLE PERSONS (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/PROTECTION OF PERSONS WITH SPECIAL NEEDS ACT (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)

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JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.

The Third Department, in a full-fledged opinion by Justice Peters, determined the controlling Social Services Law statutes did not give the Justice Center for the Protection of Persons with Special Needs (Justice Center) the authority to find make a “neglect” finding against a facility for people with developmental disabilities. When two staff members left a resident unsupervised the resident engaged in inappropriate sexual conduct. The resident had acted similarly in the past:

… [T]he issue before us “is one of pure statutory interpretation dependent only on accurate apprehension of legislative intent” … . In performing this function, we are “constitutionally bound to give effect to the expressed will of the Legislature and the plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern” … .

… While the Justice Center is indeed permitted to make a “concurrent finding” with respect to a facility or provider agency in conjunction with either a substantiated or unsubstantiated report, the scope of that “concurrent finding” is expressly circumscribed by the statute. By its terms, the only “concurrent finding” that may be made is “that a systemic problem caused or contributed to the occurrence of the incident” (Social Services Law § 493 [3] [b]). Had the Legislature intended to authorize the Justice Center to make a concurrent finding of neglect as against a facility or provider agency, it could have expressly said so. Likewise, if it was the intent of the Legislature to equate a finding “that a systemic problem caused or contributed to the occurrence of the incident” with a finding of “neglect,” it could have easily done so through use of the term “neglect.” It is axiomatic that “new language cannot be imported into a statute to give it a meaning not otherwise found therein” (McKinney's Cons Laws of NY, Book 1, Statutes § 94 at 190), nor can a court “amend a statute by inserting words that are not there” … . Matter of Anonymous v Molik, 2016 NY Slip Op 04288, 3rd Dept 6-2-16

SOCIAL SERVICES LAW (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)/DEVELOPMENTAL DISABILITIES, PEOPLE WITH (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)/NEGLECT (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)

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FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER.

The Second Department, over a dissent, determined Family Court’s failure to strictly comply with all the notice requirements for judicial surrender of parental rights was not a ground for vacation of the judicial surrender:

Social Services Law § 383-c(3)(b) defines the procedures to be followed for the execution of judicial surrenders. Specifically, it requires the court to inform the parent of the right to legal counsel and to obtain supportive counseling, and to inform the parent of the consequences of the surrender, including the permanent loss of custodial rights and the immediate and irrevocable effect of the surrender. After informing the parent that the surrender becomes final and irrevocable upon its execution and acknowledgment, the court must provide the parent with a copy of the written instrument. * * *

A clear reading of the statute indicates that the failure by a court to orally advise a surrendering parent in open court of his/her right to supportive counseling is not a ground upon which a parent may rely when seeking to vacate or revoke a surrender. Pursuant to Social Services Law § 383-c(6)(d), the only available grounds for such relief are fraud, duress, or coercion. No such allegations are present in this case. Matter of Naquan L.G. (Carolyn C.), 2016 NY Slip Op 04218, 2nd Dept 6-1-16

FAMILY LAW (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/PARENTAL RIGHTS (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/JUDICIAL SURRENDER (PARENTAL RIGHTS, (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/SOCIAL SERVICES LAW (JUDICIAL SURRENDER OF PARENTAL RIGHTS, FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)

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MORTGAGE HAD PRIORITY OVER COUNTY’S CLAIM FOR REIMBURSEMENT OF MEDICAID BENEFITS.

The Third Department determined a mortgage held by Wells Fargo had priority to a claim by the county seeking reimbursement of Medicaid benefits received by the decedent:

 

Petitioner [Saratoga County Department of Social Services] asserts priority pursuant to Social Services Law § 104 (1), which provides, in relevant part, that “[i]n all claims of the public welfare official made under [such] section[,] the public welfare official shall be deemed a preferred creditor” (emphasis added). “Preferred creditor” has been construed to give a social services department priority over a “general creditor, that is, a creditor that, upon giving credit, takes no rights against specific property of a debtor” … . Here, Wells Fargo holds a mortgage lien against the Rotterdam property that was recorded prior to the May 2014 decree of Surrogate's Court validating petitioner's claim. Although Medicaid assistance was provided to decedent before the mortgage was given, petitioner did not have a prior lien against the property (see Social Services Law § 369 [2] [a]). As such, we conclude that Wells Fargo's prior specific lien gives it priority over petitioner's claim with respect to the … property … . Matter of Shambo, 2016 NY Slip Op 02699, 3rd Dept 4-7-16


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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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DEPARTMENT OF HEALTH EXECUTIVE-COMPENSATION-CAP AND CONFLICT-OF-INTEREST RULES FOR AGENCIES PROVIDING SERVICES TO DEVELOPMENTALLY DISABLED CHILDREN DO NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE.

The First Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined that two Department of Health (DOH) rules concerning services provided to developmentally disabled children did not violate the separation of powers doctrine. One rule placed a cap on executive compensation, and the other prohibited an agency which evaluates a child’s need for services from itself providing those services (“conflict of interest” rule). The First Department explained the underlying general principles and then went through each of the Boreali [71 NY2d 1] “separation of powers” factors for each rule:

“The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” … . “The constitutional principle of separation of powers . . . requires that the [L]egislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies” … . “The branches of government cannot always be neatly divided, however, and common sense must be applied when reviewing a separation of powers challenge. As long as the [L]egislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency’s role” … . Where an agency has been endowed with broad power to regulate in the public interest, courts generally will uphold reasonable acts that further the regulatory scheme … .

[The Boreali] factors are (1) “whether the agency did more than balanc[e] costs and benefits according to preexisting guidelines, but instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems”; (2) “whether the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance”; (3) “whether the [L]egislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve”; and (4) “whether the agency used special expertise or competence in the field to develop the challenged regulations” … . The “central theme” of a Boreali analysis is that “an administrative agency exceeds its authority when it makes difficult choices between public policy ends, rather than find[ing] means to an end chosen by the Legislature” … . Agencies for Children’s Therapy Servs., Inc. v New York State Dept. of Health,  2015 NY Slip Op 09647, 2nd Dept 12-30-15

ADMINISTRATIVE LAW (SERVICES FOR DEVELOPMENTALLY DISABLED CHILDREN, DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)/DEVELOPMENTALLY DISABLED CHILDREN, SERVICES FOR (DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARARY OF POWERS)/DEPARTMENT OF HEALTH (EXECUTIVE COMPENSATION CAP AND CONFLICT OF INETERST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)/SEPARATION OF POWERS DOCTRINE (SERVICES FOR DEVELOPMENTALLY DISABLED CHILDREN, DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)

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Petitioner, Who Was Required to Work in the “Work Experience Program [WEP]” to Receive Public Assistance, Was an “Employee” Entitled to Minimum Wage Under the Fair Labor Standards Act (FLSA)

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over an extensive dissenting opinion by Judge Abdus-Salaam (in which Judge Pigott concurred), determined petitioner, who received public assistance from New York City and was therefore required to work 35 hours per week in the Work Experience Program (WEP), was an “employee” entitled to the minimum wage under the Fair Labor Standards Act (FLSA). Petitioner, after completing the WEP, won $10,000 in the state lottery. Under the lottery rules, the state sought one-half of the lottery proceeds as reimbursement for the public assistance paid to petitioner. Petitioner argued that the reimbursement reduced the amount the state paid him for his WEP work below the minimum wage required by the FLSA. The Court of Appeals agreed with petitioner’s argument. The bulk of the opinion and the dissent dealt with the propriety of finding petitioner was an “employee” entitled to the minimum wage protections of the FLSA:

… [W]e must apply the economic reality test and, under that test, the City should be considered Carver’s employer. The City had the power to hire and fire WEP workers, in that it was the City’s responsibility to assign public assistance recipients to a WEP agency and the City could dismiss workers from WEP based upon their performance. Additionally, the City and its WEP agencies supervise and control the work schedule of the workers. Furthermore, the City and its agencies, such as HRA, maintain the employment records of the WEP workers. While the Social Services Law, not the WEP agencies or the City, determines the rate and method of payment of WEP workers, that is simply one factor. The economic reality test “encompasses the totality of the circumstances” … . Matter of Carver v State of New York, 2015 NY Slip Op 08451, CtApp 11-19-15

 

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Substantial Evidence Did Not Support Department of Health’s Finding that Property Transfers Rendered Petitioner Ineligible for Medicaid Benefits

The Second Department annulled the Department of Health’s (DOH’s) finding that petitioner was ineligible for Medicaid benefits based on transfers of property made well before she exhibited signs of dementia. The court explained the analytical criteria:

In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record as a whole to determine if the agency’s decisions are supported by substantial evidence and are not affected by an error of law … . Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . While the level of proof is less than a preponderance of the evidence, substantial evidence does not arise from bare surmise, conjecture, speculation, or rumor (see id. at 180), or from the absence of evidence supporting a contrary conclusion … . When determining Medicaid eligibility, an agency is required to “look back” for a period of 60 months immediately preceding the first date the applicant was both “institutionalized” and had applied for Medicaid benefits to determine if any asset transfers were uncompensated or made for less than fair market value (42 USC § 1396p[c][1][A], [B]; Social Services Law § 366[5][e][1][vi]). If such a transfer was made during that period, the applicant may become ineligible for Medicaid benefits for a specified period of time (see 42 USC § 1396p[c][1][A], [E]; Social Services Law § 366[5][e][3]), unless there is a “satisfactory showing” that, inter alia, the assets were transferred exclusively for a purpose other than to qualify for medical assistance (42 USC § 1396p[c][2][C][i], [iii]; Social Services Law § 366[5][e][4][iii]). It is the petitioner’s burden to rebut the presumption that the transfer of funds was motivated, in part if not in whole, by anticipation of a future need to qualify for medical assistance … .

Here, the evidence at the fair hearing showed that the latest of the subject transfers was made approximately two years before the petitioner started to exhibit signs of dementia. At the time of the transfers and in the years preceding her need for nursing home care, the petitioner was in good health and living independently. She was driving, cooking, exercising, and paying her own bills. The transfers themselves constituted gifts to her relatives, and the petitioner still had more than $250,000, not including Social Security benefits, following the transfers. Under these circumstances, the petitioner met her burden of rebutting the presumption that the subject transfers were motivated by the anticipation of a future need to qualify for medical assistance … . Matter of Sandoval v Shah, 2015 NY Slip Op 07034, 2nd Dept 9-30-15

 

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