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Father Not Denied Due Process by Absence from Portion of Neglect Proceeding

In affirming Family Court’s finding that the parents had permanently neglected their daughter, the Third Department noted that father had not been denied due process based on his absence from some of the proceedings:

We reject the father’s assertion that his due process rights were violated when Family Court proceeded with a portion of the fact-finding hearing in his absence.  Although a parent in a proceeding seeking to terminate parental rights has a right to be present for all stages of the proceeding, that right is not absolute … .  On the second day of the factfinding hearing, the father’s counsel appeared and informed the court that his client would not be present due to health reasons. Rather than request an adjournment, counsel affirmed that the father’s attendance at the hearing “would not be required today,” requested another hearing date – which the court agreed to schedule – so as to allow the father to testify, and thereafter actively participated in the hearing.   Under these circumstances, we discern no error in Family Court’s decision to proceed with the hearing in the father’s absence or any prejudice inuring to the father as a result thereof… . Matter of Arianna BB…, 2013 NY Slip Op 06758, 3rd Dept 10-17-13

 

Order Prohibiting Visitation Unless Recommended by Therapist Improper

The Third Department affirmed Family Court’s neglect finding but determined the order prohibiting visitation unless recommended by a therapist improperly delegated the court’s authority to make determinations in the best interests of the child:

…[W]e find merit to respondent’s argument that Family Court’s order prohibiting visitation except “as therapeutically recommended or attendance at therapy with [the child] as recommended by a therapist after review by . . . Family Court” constitutes an improper delegation of the court’s authority to make determinations on the issue of the best interests of the child … .  Although the record contains some indication that Family Court recognized and attempted to avoid this delegation, the order failed to require further review unless triggered by the therapist, and did not direct the child to attend therapy with respondent unless recommended by the therapist.  As the order thus makes the recommendation of a therapist a prerequisite for any visitation, we find that there was an improper delegation of the court’s authority, and the matter is therefore remitted to Family Court for further proceedings regarding the issue of visitation… . Matters of Alisia M…, 515188, 3rd Dept 10-17-13

 

Family Court Properly Assumed Jurisdiction Over California Order

In affirming Family Court’s dismissal of mother’s petition for a modification of custody, the Third Department noted that Family Court properly assumed jurisdiction over a California custody order:

Family Court properly assumed jurisdiction over this proceeding.  As California no longer had exclusive continuing jurisdiction over this matter (see 28 USC § 1738A [d]), New York could assume jurisdiction for the purpose of modifying the California order so long as it “[was] the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state” (Domestic Relations Law § 76 [1] [a]; see Domestic Relations Law § 76-b).  “Home state” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]).   Matter of Clouse v Clouse, 514987, 3rd Dept 10-17-13

 

Child Support Standards Act Formula Should Have Been Used

The Third Department determined Family Court erred in determining the parents’ respective contributions to child support when it used the catchall factor (factor 10, FamCtAct 413 (1)(f)(10)) to deviate from the Child Support Standards Act (CSSA) formula because the father had custody of the older child all the time and the younger child every other week.  The Third Department determined the CSSA formula should have been applied:

Here, the Support Magistrate stated that he was relying on factor 10, the catch-all provision for “[a]ny other factors the court determines are relevant in each case” (Family Ct Act § 413 [1] [f] [10]).  His stated reason for deviating from the presumptive amount was that the father has physical custody of the older child all of the time and of the younger child every other week, so the Support Magistrate adjusted the amount such that the father would not pay support when both children are with him.  This was merely another way of applying the proportional offset method, which would reduce a parent’s child support obligation based upon the amount of time that he or she actually spends with the child … .

The Court of Appeals has rejected this method as impractical, unworkable and contrary to the statute and legislative history … .  … While application of the CSSA formula may seem to produce unfair results where, as here, the parties equally share parenting time with a child, “[t]he difficult policy choices inherent in creating an offset formula for shared custody arrangements are better left to the Legislature” … .  The costs of providing suitable housing, clothing and food for the children during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount (see Family Ct Act § 413 [1] [f] [9]…). While there may be circumstances in which a deviation is warranted in situations involving shared parenting time, the Support Magistrate’s articulated reason did not provide an adequate basis for such deviation here… . Matter of Ryan v Ryan. 514954, 3rd Dept 10-17-13

 

No Sound Basis for Family Court’s Determination Shared Custody Was Appropriate

The Third Department determined there was not a sound basis for Family Court’s determination that shared custody was appropriate

…[N]either party appears to have requested such relief, and the parties’ testimony at the fact-finding hearing was replete with mutual allegations of domestic violence and poor communication, as well as descriptions of vastly differing parenting styles. Moreover, although not a determinative factor, we note the absence in the court’s decision of any discussion concerning the wishes or preferences of the children, both of whom are in their teens, even though this factor should be “entitled to great weight” … .   Nor is there any discussion addressing the difficulties in a shared custody arrangement raised by the testimony concerning the son’s alleged preference to live in the mother’s home.  Additionally, while the court specifically found that there was some evidence that the father “does not fully understand or appreciate the daughter’s dietary needs and her medical issues,” it was not explained how this concern would be met by the alternating physical custody schedule set forth in the decision.  Given these and other concerns raised by the parties’ testimony, we deem it appropriate to remit the matter to Family Court for a determination of primary physical custody of the children, accompanied by appropriate findings detailing the facts essential to such decision… . Matter of Glenna Y…, 514558, 3rd Dept 10-17-13

 

Custody Petition by Maternal Grandmother Denied in Favor of Child’s Mother

In affirming the denial of custody to petitioner, the maternal grandmother, in favor of the child’s mother, the Third Department explained the relevant criteria:

“‘[A] biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances'” … .  Significantly, the nonparent seeking custody bears a heavy burden of establishing the existence of extraordinary circumstances … .

Persistent neglect will be found where the parent “has failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child’s future” … . While relinquishing care and control of a child for a continuous period of 24 months will be considered an extraordinary circumstance (see Domestic Relations Law § 72 [2]…), petitioner concedes that no such period of separation occurred here … .  Although the child had visits with petitioner that lasted multiple weeks and, on at least one occasion, three months, the record does not reflect a prolonged period of separation or “a complete abdication of parental rights and responsibilities”… . Matter of Mildred PP v Samantha QQ, 514416, 3rd Dept 10-17-13

 

Imputed Income, As Opposed to Actual Income, Used to Determine Mother’s Contribution to College Costs

The Third Department used imputed income to determine mother’s ability to contribute to the children’s college education:

In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek more lucrative employment that is consistent with his or her education, skills and experience … .  Imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay … .  Thus, imputed income may be attributed to a party as long as the court articulates the basis for imputation and record evidence supports the calculations … .

Here, Family Court accepted the mother’s income as $15,000, without imputing any income to her.  She testified that she earned approximately that amount at her part-time job as a tax preparer, but acknowledged that she has a Bachelor’s degree in accounting and could work full time, yet chooses to work reduced hours out of loyalty to her employer.  Because we are basing the college expenses on the parties’ ability to pay rather than their actual income, we will impute income to the mother based on her underemployment and ability to earn more ,,, .  Using the mother’s testimony that she earned approximately $15,000 working full time from January through April and two days per week for the remainder of the year, we can extrapolate a full-time salary for her at the same earning rate, resulting in an imputed income of $25,000.   Matter of Curley…, 514294, 3rd Dept 10-17-13

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Parental Rights Termination Based Upon Mental Illness Reversed—Psychologist’s Report Included Inadmissible Hearsay

The Third Department reversed Family Court’s determination that mother’s parental rights should be terminated based upon her mental illness. The psychologist’s (Liotta’s) report, upon which Family Court based its ruling, should not have been admitted in evidence because it included inadmissible hearsay:

Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay “if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” … .  While some of the individuals with whom Liotta spoke testified during the hearing and were thus subject to cross-examination, several others did not.  Liotta was not asked and offered no opinion as to whether the information he gleaned from the interviews with individuals who did not testify was professionally accepted as reliable in performing mental health evaluations.  Respondent objected on hearsay grounds to Liotta’s testimony about these interviews and to the admission of his report – which contained detailed accounts of each interview – but the court overruled these objections.  Moreover, when respondent’s counsel sought to ask about the effect of the collateral source interviews on his opinions, the court precluded him from doing so.  As a result, no proper foundation was laid for the admission of Liotta’s testimony or his report… . Matter of Dakota F …, 513066, 3rd Dept 10-17-13

 

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Failure to Move to Dismiss Indictment on Speedy Trial Grounds Constituted Ineffective Assistance of Counsel—Inexcusable Post-Indictment Delay Required Dismissal

The Third Department determined defense counsel’s failure to move to dismiss the indictment on speedy trial grounds constituted ineffective assistance of counsel, requiring that defendant’s motion to withdraw his guilty plea be granted, and the postindictment delay, for which the People had no adequate excuse, required that the indictment be dismissed:

A Washington County grand jury handed up a four-count sealed indictment in October 2011 charging defendant with criminal sale and possession of controlled substances occurring in September and November 2010.  An arrest warrant was issued and provided to the State Police, who for well over six months were reportedly unable to locate defendant, who had relocated, until he was arrested during a traffic stop in Chautauqua County, where he had been residing.  He was arraigned on the indictment on June 14, 2012. * * *

…[D]efendant’s ineffectiveness of counsel claim was preserved by his motion to withdraw his plea and adequately alleges that it impacted the voluntariness of his plea and appeal waiver, so as to survive both … .  Thus, we address defendant’s speedy trial claim in the context of ascertaining whether he was deprived of meaningful representation, mindful that “[a] single error of failing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amount to ineffective assistance of counsel” … . * * *

The People’s fleeting description of the efforts made to locate defendant fell far short of “all reasonable efforts to enforce judicially issued warrants” … required to satisfy the “due diligence” standard (CPL 30.30 [4] [c] [i]).  As such, the People failed to meet their burden of establishing the statutory exclusion for this postindictment prereadiness delay … . Accordingly, all of this unready time would be chargeable to the People … . People v Devino, 105441, 3rd Dept 10-17-13

 

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Leading Questions and Elicitation of Hearsay in Grand Jury Proceedings Did Not Constitute Prosecutorial Misconduct

The Third Department reversed County Court and determined leading questions and elicitation of hearsay in the grand jury proceedings did not constitute prosecutorial misconduct:

“Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the [g]rand [j]ury” … .  Contrary to County Court’s finding, the record as a whole does not reveal a “pervasive mishandling” of the manner in which this case was presented to the grand jury.  To the extent that the prosecutor asked leading questions or elicited hearsay testimony from the various witnesses, we note that “not every improper comment, elicitation of inadmissible testimony, impermissible question or mere mistake renders an indictment defective.  [Rather], the submission of some inadmissible evidence [typically] will be deemed fatal only when the remaining evidence is insufficient to sustain the indictment” … .  Inasmuch as we are satisfied – based upon our review of the grand jury minutes – that there otherwise is legally sufficient (and admissible) evidence to sustain count 1 of the indictment, the isolated instances of hearsay testimony, which were accompanied by appropriate limiting instructions, do not warrant dismissal thereof … .  We similarly are persuaded that the prosecutor’s limited use of leading questions did not impair the integrity of the grand jury proceeding… . People v Miller, 105721, 3rd Dept 10-17-13

 

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