Custody

Published on: June 8, 2013

Court Decides if Social Services Law is Constitutional

by Stephen Bilkis

The two appeals before this court, involving two different sets of children, raise questions relating to Social Services Law §§ 384-b(4)(c) and 384-b(6)(a). Because in each case the trial court entertained a different view of the constitutionality of those sections, we have chosen to consolidate these appeals and consider the conflicting claims of the parties in one opinion.

A New York Family Lawyer said that, in the first case, petitioner, the Cardinal McCloskey School and Home, appeals from an order of the Family Court, New York County, entered May 15, 1980, which dismissed its petition pursuant to Social Services Law § 384-b(4)(c) for an order terminating the parental rights of respondent, on the ground, inter alia, of her mental illness. The court, after a fact-finding hearing, concluded that there was clear and convincing proof of mental illness rendering respondent unable to provide adequate supervision and guidance to the children in the foreseeable future. However, following a dispositional hearing upon the consent of all counsel, the court extended the children’s placement with petitioner, but dismissed the petition on the ground that §§ 384-b(4)(c) and 384-b(6)(a) were unconstitutional.

A New York Custody Lawyer said that, in the second case, the children, through their law guardian the Legal Aid Society, appeal from an order of the Family Court, Bronx County, entered November 15, 1979, which dismissed the petition of the Cardinal McCloskey School and Home pursuant to Social Services Law § 384-b(4)(c) seeking guardianship and custody of the children on the ground that the father, was unfit to care for them by reason of mental illness. The petition was dismissed after a fact-finding hearing at which the court found there was insufficient proof to support a termination of parental rights based on mental illness.

Published on: June 7, 2013

Court Decides Custody in Light of Molestation Allegations

by Stephen Bilkis

Two petitions were filed by the Administration for Children’s Services (ACS) in May 2010 on behalf of three-year-old child, and five-year-old daughters of Respondent. The petition on behalf of five-year-old also named the child’s mother, as co-respondent, and the petition on behalf of three-year-old child named her mother, as co-respondent. The allegations in the petitions as to both children are identical. A New York Family Lawyer said that, the petitions allege that both children are less than eighteen years of age and, their father, Respondent, has sexually abused them, as defined in Family Court Act § 1012 (e) (iii), and has impaired their physical, mental or emotional conditions, or placed them in imminent danger of such impairment, as a result of his failure to exercise a minimum degree of care in providing each of them with proper supervision or guardianship, or by any other acts of a similarly serious nature requiring the aid of the court within the purview of the Family Court Act § 1012 (f) (i) (B).

A New York Custody Lawyer said that, the fact finding hearing was commenced January 24, 2011 and was completed on March 23, 2012. ACS called two witnesses. A non-subject child, testified via two way circuit video from a residential treatment center in Syracuse, New York. The ACS Caseworker also testified. Respondent testified on his own behalf.

A Nassau County Family Lawyer said that, petitioner ACS asks that the court, pursuant to Family Court Act § 1012 (e) (iii) and§ 1012 (f) (i) (B), find that the subject children are derivatively neglected or abused children based on Respondent’s 2001 conviction of rape in the second degree of his two half-sisters, then ages fourteen and seven years, his registration as a level three sex offender, and the testimony of non-subject child who alleged that Respondent committed sex offenses against her around 2006-2008. The Attorney for the non-subject child joins in ACS’s application. Respondent argues that the court must dismiss the instant petitions based on ACS’s failure to establish derivative abuse or neglect of the two subject children or to present evidence to show that Respondent has harmed the children or placed them in substantial risk of harm. Further, Respondent asserts that the testimony of the thirteen-year-old child as to his alleged sexual touching of her was not credible and could not be used as a predicate offense for a finding of derivative child abuse or neglect.

Published on: June 6, 2013

Court Hears Case Regarding Double Jeopardy Against Infant Defendant

by Stephen Bilkis

A Bronx Order of Protection Lawyer said that, the petitioners, pursuant to Article 78 CPLR, seek relief in the nature of prohibition restraining the respondent court (Family Court) from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing. Relief pursuant to Article 78 CPLR is an appropriate remedy upon such claim. Movant has properly sought such relief here (CPLR 506(b)).

A New York Family Lawyer said that, the infant petitioner was charged with the commission of an act which would be a crime if committed by an adult. A fact-finding hearing was commenced thereon and there was a failure of proof when the complaining witness admitted she could not identify the infant. The record submitted establishes that there may have been a witness who might have supplied the necessary identification, but that the witness did not appear and indicated that he would not obey a subpoena to compel his attendance. In addition, it appears that the Court viewed, but without the objection of the attorney for the infant petitioner, probation reports and other records concerning a prior ‘Person in Need of Supervision’ petition brought by the infant petitioner’s mother. Thereupon, the Court declared a mistrial and set the case down for a new hearing upon the expressed grounds ‘because of failure of necessary witness to respond to subpoena and because of Judge’s perusal of other records of respondent’ (the infant petitioner herein).

The issue in this case is whether the Family Court should be restrained from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing.

Published on: June 4, 2013

Maternal Aunt Seeks to Adopt Child

by Stephen Bilkis

An institution filed a child neglect petition in the family court based on allegations that the mother failed to provide adequate medical care for the infant and had a prior history of neglect findings as to the infant’s older siblings. The court issued an order removing the child from the mother’s care and sends back the child to the institution for foster care services. Then, the institution removed the child from the mother’s care and the child physically entered the foster care. A New York Family Lawyer said the institution placed the child in a foster home with the agency with whom they contracts for foster care and adoption services. The agency consequently placed the child in the home of non-kinship foster parent who has now filed the agency for adoption petition. The child remained in the foster mother’s home continuously.

Consequently, the court found that the mother had neglected the child and issued a dispositional order placing the child with the institution. At the hearing, the court approved a change in the child’s permanency goal from return to parent to adoption. The agency filed a petition to terminate the parental rights of the mother on the grounds of permanent neglect or abandonment, and sought a finding that there was no man who was entitled to notice of and consent to the adoption of the child.

The hearing for the termination of parental rights proceeding was initiated. At the hearing, the court learned that the mother had died and her death ended the proceeding. A New York Custody Lawyer said the court then held a hearing and found that there was no man who was entitled to notice of or consent to the child’s adoption. The court directed the agency to submit a written order of disposition and the mother’s death certificate.

Published on: June 2, 2013

Court Decides Guardianship Proceeding

by Stephen Bilkis

In this guardianship proceeding, respondent, an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, respondent nominated his neighbor as his guardian. A New York Family Lawyer said that following the filing of the initial petition, the nephew of respondent, filed a cross-petition similarly seeking the appointment of a guardian for respondent but opposing the nomination of the neighbor. Subsequent to the commencement of the cross-petition, respondent withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing, wherein several witnesses testified.

A New York Custody Lawyer said that based upon the credible and documentary evidence adduced at the hearing, the court determines that a cross-petitioner, has demonstrated by clear and convincing evidence that respondent is incapacitated. Specifically, the court determines that respondent is unable to provide for his personal needs and the management of his property management. Respondent cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that respondent executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.

The issue to be resolved in this case is whether respondent should be placed under guardianship.

Published on: June 1, 2013

Mother Seeks to Relocate Child

by Stephen Bilkis

The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a six-year-old boy born on May 17, 2004. A New York Family Lawyer said the stipulation settling the divorce case granted the mother legal and physical child custody. The father was given visitation rights every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation also allowed relocation within 25–miles of the father’s house in Bronx County.

The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

A New York Custody Lawyer said that after the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying to mirror my own childhood. I had a wonderful suburban upbringing. The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem.

Published on: May 31, 2013

In Sad Case, Mother of Child Accused of Abuse and Neglect

by Stephen Bilkis

An institution moved to request a decision without proceeding with regards to the child neglect proceeding. The institution requested the court to enter a finding of derivative neglect against the mother of the child based on the court’s prior finding of neglect as to her older child.

Consequently, a New York Family Lawyer said the attorney of the child filed an affirmation opposing the institution’s motion. The attorney stated that the mother had accepted services and did not exhibit an impaired level of parental decision as to create a substantial risk of harm to the infant. The mother’s attorney also filed responsive papers opposing the institution’s motion. For that reason, the court denies the institution’s motion.

Later, the institution filed a child abuse and neglect petition against the mother. Sources revealed that the petition claimed that the children are less than eighteen years of age whose physical, mental or emotional conditions have been impaired or are in imminent danger of becoming impaired as a result of the failure of their mother to exercise a minimum degree of care in supplying them with proper supervision or guardianship by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, or by misusing a drug, and not voluntarily and regularly participating in a rehabilitative program, or by any other acts of a similarly serious nature requiring the aid of the court.

Published on: May 30, 2013

Wife Contends Husband Violated Order for Protection

by Stephen Bilkis

The complainant woman filed a Family Offense Petition in the Family Court of Bronx County against her husband. A New York Family Lawyer said acting on the petition, the Family Court issued a permanent Order of Protection in favor of the wife. The Order, the duration of which is 12 months, directed that the husband shall refrain from acts constituting assault, menacing, reckless endangerment, and/or disorderly conduct directed against his wife and it is further ordered that the husband is excluded from the wife’s apartment.

Earlier, the Bronx County Family Court had issued an order governing visitation by the husband to their child.

On August 10, 1987, the complainant filed a Petition for Violation of the Order of Protection in the Bronx Family Court based on conduct allegedly engaged in by the husband on several occasions. It is the conduct complained of on August 9 and 10, 1987 along with the events of July 26, 1987 which likewise form the basis of the criminal charges. A New York Custody Lawyer said also on August 10, 1987, the complainant filed with the Family Court a Petition for Modification of the Visitation Order. Both petitions were signed by the wife on August 10, 1987. The husband was arrested on the wife’s complaint to the police and given a desk appearance ticket returnable in the Bronx Criminal Court.

Published on: May 29, 2013

Court Decides Adoption of a Minor

by Stephen Bilkis

An Order of Disposition by Family Court of Bronx County was entered and adjudicated the appellant, a juvenile delinquent upon his admission in Westchester County Family Court. A New York Family Lawyer said he admitted that he committed an act that, if committed by an adult, would constitute the crime of grand larceny in the fourth degree, and placed him in the custody of the Office of Children and Family Services for a period of 18 months. The order was unanimously reversed on the law without costs, and the matter was remanded to Family Court of Bronx County for a new fact-finding hearing.

The Appellant juvenile delinquent is entitled to vacatur of his admission because the court failed to comply with the allocution requirements of Family Court Act which provides that at the initial appearance, the respondent shall admit or deny each charge contained in the petition unless the petition is dismissed or the proceeding otherwise terminated.

A New York Custody Lawyer said the allocution was inadequate because the court did not advise appellant that he had the rights to testify, call witnesses in his own behalf and confront witnesses against him. It is also found to be inadequate because the appellant was not advised of the presentment agency’s obligation to prove his guilt beyond a reasonable doubt. Since the requirement is not waivable, preservation is not required.

Published on: May 28, 2013

Court Overturns Order for Protection

by Stephen Bilkis

Petitioner filed a family offense petition in wherein she alleged in pertinent part that respondent physically assaulted her on numerous occasions and threatened to shoot her. A New York Family Lawyer said although served with a copy of the summons and petition, respondent did not appear on the return date of the petition. The Presiding Judge in the Part conducted an inquest on that date. Finding aggravated circumstances, the judge entered a final order of protection on the same date for a term of four years, requiring respondent to stay away from petitioner and her children, and to refrain from communicating with or committing any acts constituting a family offense against petitioner mother and the children.

A Queens County Order of Protection Attorney said that respondent father filed a petition seeking visitation with the children. The court dismissed the petition without prejudice as neither party appeared. There is no indication that the father ever served the mother with the petition. This is how matters remained until the Administration for Children’s Services filed neglect petitions against the mother alleging in pertinent part that the mother had engaged in sexual intercourse with a 12-year-old minor and that the home and the children were malodorous. Through that date the father had no contact with the children at least since the mother had filed the 2006 family offense petition.

Later, the mother withdrew her previous denial to the allegations of the neglect petition and submitted to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a). Based upon the allegations set forth in the verified petition, the court found that the mother neglected the subject children based upon failure to exercise a minimum degree of care in providing the subject children with adequate guardianship and supervision. As part of the dispositional order, petitioner mother was ordered to refrain from making disparaging comments against respondent, who was not a respondent in the neglect proceedings.