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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, PETITIONER DID NOT MEET ITS BURDEN TO PROVE IT MADE DILIGENT EFFORTS TO ASSIST RESPONDENT MOTHER IN ADDRESSING HER MENTAL HEALTH; MOTHER’S PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner did not prove it made diligent efforts toward reunification of mother and child, given mother’s mental health and the incomplete measures to address her mental health needs. Therefore mother’s parental rights should not have been terminated. The facts are far too complex to summarize here:

The petitioning agency “bears the burden of proving . . . that such diligent efforts were made,” and must do so by clear and convincing evidence … . To satisfy that burden, the agency “must develop a plan that is realistic and tailored to fit [the] respondent’s individual situation” … , and “make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … . The petitioning agency “should mold its diligent efforts to fit the individual circumstances so as to allow the parent to provide for the child’s future’ ” … .

… [The] “terms and conditions” placed upon respondent required … that she “undergo a complete mental health evaluation by a licensed professional approved by [petitioner]”; engage in a domestic violence program; attend all of the child’s medical appointments and all scheduled visitation; and “successfully complete Family Services of Chemung County’s Protective Parenting Program.” We agree with respondent and the AFC that petitioner did not prove, by clear and convincing evidence, that it made diligent efforts to assist respondent in satisfying these conditions. Matter of Willow K. (Victoria L.), 2023 NY Slip Op 03730, Third Dept 7-6-23

Practice Point: Here mother had serious mental health issues and the “terms and conditions” imposed upon mother required those issues to be addressed in specific ways. Petitioner did not prove it diligently provided sufficient assistance to mother in her attempts to meet those terms and conditions. Therefore mother’s parental rights should not have been terminated.

 

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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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A ROCKY LEDGE UNDER FOUR INCHES OF WATER IN A NATURAL SWIMMING HOLE SURROUNDED BY IRREGULAR ROCK WAS OPEN AND OBVIOUS AND PLAINTIFF ASSUMED THE RISK OF STRIKING HER FOOT ON THE ROCK LEDGE (THIRD DEPT).

The Third Department, reversing (modifying) the Court of Claims, determined defendant (a state-owned park with a natural swimming area surrounded by irregular rock) was not liable for plaintiff’s injury caused by striking a rock ledge covered by four inches of water. Defendant demonstrated the water was clear and the rock ledge was open and obvious. Defendant further demonstrated the swimming area had been made as safe as possible. In addition plaintiff assumed the risk of swimming there:

The open and obvious nature of the rock shelf obviated any duty on defendant’s part to warn park users of its presence … . * * *

While it may be true that a rocky underwater surface could be less optimal for swimming than an engineered swimming pool, it nevertheless remains the case that claimant’s striking of her foot on a rock ledge was a reasonably foreseeable risk inherent in swimming in the gorge, and the swimming conditions were as safe as they appeared to be … . McQuillan v State of New York, 2023 NY Slip Op 03734, Third Dept 7-6-23

Practice Point: A rocky ledge under four inches of water in a natural swimming hole surrounded by irregular rock was open and obvious. Plaintiff assumed the risk of striking her foot on the rock ledge.

 

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THE SPEEDY TRIAL REQUIREMENTS FOR A JUVENILE DELINQUENCY PROCEEDING WERE VIOLATED (THIRD DEPT).

The Third Department, reversing the juvenile delinquency adjudication and dismissing the petition, determined the speedy trial requirements were violated:

“Where [a] juvenile is not detained, an adjudication on the merits of the petition’s charges, known as the ‘fact-finding’ phase of the process, ‘shall commence not more than [60] days after the conclusion of the initial appearance,’ subject to adjournments for good cause and special circumstances” (…Family Ct Act § 340.1 [2]). A court may adjourn a fact-finding hearing “on its own motion or on motion of the presentment agency for good cause shown for . . . not more than [30] days if the respondent is not in detention” and “[t]he court shall state on the record the reason for any adjournment of the fact-finding hearing” … . However, “a judicial referral for adjustment under Family C[t] Act § 320.6 operates to toll the limitations period set forth in Family C[t] Act § 340.1” … . “Efforts at adjustment . . . may not extend for a period of more than three months without leave of the court, which may extend the period for an additional two months” … .

Here, the record establishes that the initial appearance on the petition was on February 1, 2021, at which time respondent appeared with counsel, was arraigned and entered a general denial to the petition (see Family Ct Act §§ 320.1; 320.4). Measured from the February 1 initial appearance date, 273 days passed before the scheduled November 1, 2021 fact-finding hearing.[FN3] Of the 273 days, tolling for the entire adjustment period of 153 days[*3], leaves 120 days before the scheduled fact-finding hearing, well-beyond the initial 60-day speedy trial period, as well as the 90-day speedy trial period, assuming without deciding that the 30-day adjournment was properly granted (see Family Ct Act § 340.1 [4], [5]). As such, the speedy trial requirements relative to juvenile delinquency proceedings were violated and the petition must be dismissed. Matter of Zachary L., 2023 NY Slip Op 03735, Third Dept 7-6-23

Practice Point: The speedy trial requirements for a juvenile delinquency proceeding, explained in this decision, were violated.

 

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THE DATE BY WHICH AN OPTION TO RENEW A LEASE IS TO BE EXERCISED CAN BE WAIVED BY THE ACCEPTANCE OF AN UNTIMELY ELECTION TO RENEW; THE REQUEST FOR A NEW LEASE WITH THE SAME MATERIAL TERMS DOES NOT AFFECT THE VALIDITY OF THE ELECTION TO RENEW (THIRD DEPT).

​The Third Department, reversing Supreme Court, determined there were questions of fact about whether defendant tenant had exercised its option to renew the lease. The court noted that the date by which an option to renew must be exercised is for the benefit of the landlord and therefore can be waived by the landlord:

… [W]e agree with plaintiff that, to the extent that Supreme Court concluded that defendant could not have exercised the option to renew because the option lapsed after November 30, 2018, that finding was erroneous. Although an “optionee must exercise the option in accordance with its terms within the time and in the manner specified in the option” … , the relevant case law establishes that the notice provision associated with the option was “solely for plaintiff’s benefit as the landlord and may be waived, even in the absence of a written waiver” … . Here, plaintiff’s assertion that he confirmed and accepted defendant’s untimely election constitutes such waiver.

… [W]here an option is exercised and all of the essential and material terms of the parties’ agreement are provided for in the original lease, the fact that a party contemplates “the subsequent execution of a more formal writing [that was] not done will not impair [the] effectiveness” of the election … . Nor would plaintiff’s inquiry as to whether defendant would like a future option to renew render defendant’s exercise of the option conditional … .

The core question is whether defendant exercised its option to renew, as a matter of law. Moore v Schuler-Haas Elec. Corp., 2023 NY Slip Op 03739, Third Dept 7-6-23

Practice Point: The date by which an option to renew a leased is to be exercised is for the benefit of the landlord and therefore can be waived by the acceptance of an untimely election. The request for a new lease with the same material terms does not invalidate the election to renew.

 

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AT THE TIME OF THE JUVENILE’S ADMISSION TO POSSESSION OF STOLEN PROPERTY THE JUDGE DID NOT INFORM HIM OR HIS MOTHER OF THE EXACT NATURE OF HIS “PLACEMENT OUTSIDE THE HOME OR ITS POSSIBLE DURATION” AS REQUIRED BY FAMILY COURT ACT SECTION 3213(1); ORDER REVERSED (THIRD DEPT).

The Third Department, reversing the juvenile’s admission in this juvenile delinquency proceeding, determined the juvenile and his mother were not adequately informed of the consequences of the admission to possession of stolen property:

… [T]he allocution in which respondent admitted to [possession of stolen property] was fatally defective because Family Court … failed to comply with the requirements of Family Ct Act § 321.3 (1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home . . . for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” … . “Inasmuch as the provisions of Family Ct Act § 321.3 (1) are mandatory and cannot be waived, the order must be reversed” … . Matter of Tashawn MM., 2023 NY Slip Op 03745, Third Dept 7-6-23

Practice Point: At the time of a juvenile’s admission in a juvenile delinquency proceeding, the juvenile must be informed of the exact nature of any “placement outside of the home and its possible duration.” The failure to so inform the juvenile requires reversal of the placement order.

 

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LAWYERS FOR CHILDREN, WHICH IS CONTRACTUALLY OBLIGATED TO PROVIDE ATTORNEYS IN CHILD WELFARE MATTERS, HAS STANDING TO CHALLENGE THE HOST FAMILY HOMES PROGRAM WHICH PLACES CHILDREN WITHOUT THE PARTICIPATION OF ATTORNEYS (THIRD DEPT).

​The Third Department reversing Supreme Court, determined Lawyers for Children, which provides attorneys for child welfare matters, had standing to bring a petition challenging the Host Family Homes program which facilitates temporary placement of children in foster care without an attorney. 

… [P]ursuant to Social Services Law § 358-a (6), Family Court is tasked with appointing an attorney for the children should there be a hearing before it. Petitioner Lawyers for Children had initially contracted with the Office of Court Administration (hereinafter OCA) respecting voluntary foster care placements and, since the legislative changes in 1999, has consistently represented children in New York City who have been voluntarily placed outside of the home. Similarly, petitioner Legal Aid Society contracted with OCA and receives assignments through New York City Family Court. Petitioner Legal Aid Bureau of Buffalo, Inc., likewise, has contracted with OCA and receives funding to represent children in child welfare matters.

In December 2021, respondent Office of Children and Family Services (hereinafter OCFS) promulgated regulations creating the Host Family Homes program, a system for the temporary care of children by pre-vetted volunteers without resorting to the voluntary placement process in the Social Services Law … . * * * Children cared for by a host family under this program were not entitled to assigned counsel, although they could communicate with an attorney … . * * *

… [P]etitioners sufficiently alleged an injury in fact that is not merely conjectural, as implementation of the program would, in essence, place children outside their home without the right to legal representation to which they would be entitled by Social Services Law § 358-a and that petitioners have a contractual obligation to provide … . Matter of Lawyers for Children v New York State Off. of Children & Family Servs., 2023 NY Slip Op 03747, Third Dept 7-6-23

Practice Point: Lawyers for Children is contractually obligated to provide attorneys in child welfare matters. Lawyer for Children has standing to challenge the Host Family Homes program which places children in foster care without the participation of attorneys.

 

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THE EVIDENCE THAT DEFENDANT INTENDED TO PURCHASE DEALER QUANTITIES OF COCAINE FROM A DEALER (SANCHEZ) AND COOKED CRACK COCAINE FOR THAT DEALER WAS NOT LEGALLY SUFFICIENT EVIDENCE OF AN INTENT TO ORGANIZE OR LEAD THE DEALER’S DISTRIBUTION NETWORK; CONSPIRACY CONVICTON REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conspiracy to distribute cocaine conviction, determined the conviction was not supported by legally sufficient evidence:

… [D]efendant’s conviction of conspiracy in the second degree based upon the underlying crime of operating as a major trafficker is not supported by legally sufficient evidence. The evidence presented by the People shows only that defendant intended to purchase dealer quantities of cocaine from Sanchez and cooked crack cocaine for Sanchez when requested, but wholly fails to connect defendant to Sanchez’s broader cocaine dealing network, as defendant was not linked to any of the stash houses or the other individuals with whom Sanchez was in contact. Although Penal Law § 220.77 (1) does not contain a defined mens rea term, it is not a strict liability crime (see Penal Law § 15.15 [2]), and its plain language requires proof that defendant engaged in conduct constituting the administration, organization or leadership of a controlled substance organization. The proof offered by the People does not set forth a valid line of reasoning to permissibly infer that this specific intent was met here. While defendant’s purchase of dealer quantities of cocaine from Sanchez and an agreement to cook crack cocaine for him might be sufficient to establish his knowledge of a broader cocaine distribution network … , they are not sufficient to infer that defendant intended Sanchez to administer, organize or lead a controlled substance organization, as the knowledge of such an organization is not equivalent to the intent to control one. People v Lundy, 2023 NY Slip Op 03727, Third Dept 7-6-23

Practice Point: Conspiracy is a specific intent crime. Here the fact that defendant intended to purchase dealer quantities of cocaine from a dealer and cooked crack cocaine for the dealer was not legally sufficient evidence of the intent that the dealer administer, organize or lead a drug organization. The conspiracy conviction was vacated.

 

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THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the voters whose absentee ballots were unsuccessfully challenged on the ground the voters did not meet the village-residency-requirements were necessary parties in this proceeding and the matter had to be remitted to add them and consider whether their absentee ballots are valid:

Viewing Election Law § 5-220 (2) together with Election Law § 9-209, there is no statutory authority, under the circumstances here, permitting a challenge by petitioners to the absentee ballots submitted by the challenged voters. In view of the statutory scheme, the only opportunity for an objection to be lodged during the post-election review of an absentee ballot is after such ballot has been deemed invalid following a review under Election Law § 9-209 (8) (e), which presupposes an initial review under Election Law § 9-209 (2). … [T]he improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon the initial review. Even assuming it was a ground, there is still no indication in the record that any review under Election Law § 9-209 (2) has occurred or, more importantly, that any determination under Election Law § 9-209 (8) (e) has been made here by the canvassing authority as to the invalidity of any absentee ballots and that such determination has been objected to — i.e., the statutory predicate for judicial review (see Election Law § 9-209 [8] [e]). There is likewise no explicit authority within Election Law § 9-209 permitting a court to either conduct that review or make that determination in the first instance. Matter of Hughes v Delaware County Bd. of Elections, 2023 NY Slip Op 03431, Third Dept 6-26-23

Practice Point: When absentee ballots are challenged, the voters who submitted the ballots are necessary parties.

Practice Point: Any challenge to absentee ballots must be made in accordance with the procedures described in the Election Law, not the case here.

 

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PLAINTIFF, AN EXPERIENCED MOTOCROSS RIDER, ASSUMED THE RISK OF LOSING CONTROL OF HIS BIKE UPON LANDING AFTER A JUMP; PLAINTIFF WAS AWARE THAT SOME ASPECT OF THE LANDING AREA CAUSED HIM TO LOSE CONTROL OF THE BIKE ON A PRIOR PRACTICE RUN BUT DID NOT INVESTIGATE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined plaintiff, an experienced motocross rider, assumed the risk of injury when using defendant’s motocross track. Plaintiff alleged a pothole where riders landed after a jump was filled with a talcum-powder-like substance which caused him to lose control of the bike. The majority concluded plaintiff was aware of the risk associated with the material used to fill the pothole:

Considering that Fritz [plaintiff] testified that on both jump landings the back end of his bike “kicked up,” that he hit the same pothole and that he had to work to recover the bike, we are satisfied that he was aware of the potential for injury on that jump’s landing … . Fritz v Walden Playboys M.C. Inc., 2023 NY Slip Op 03524, Third Dept 6-29-23

Practice Point: Here plaintiff testified he was aware that some aspect of a jump-landing area of the motocross track caused him to lose control of his bike briefly in a prior practice run but he did not investigate. The majority concluded he therefore assumed the risk associated with a pothole filled with talcum-like powder in the landing area. Plaintiff lost control of the bike in the area of the filled pothole on his second jump.

 

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