New York City

Published on: June 23, 2013

Court Hears Petition Regarding Allegations of Mother’s Neglect

by Stephen Bilkis

The order appealed from is unanimously reversed on the law without costs, the petition is granted and the matter is remitted to Family Court for further proceedings in accordance with the Memorandum that Family Court erred in determining that the petitioner mother failed to prove by a preponderance of the evidence that the children who are the subject of the proceeding are neglected children based upon domestic violence between the respondent father and the mother of the children and in therefore dismissing the petition. The court notes at the outset that the respective Attorneys for the Children did not take an appeal from the order, and thus to the extent that their briefs raise contentions not raised by the petitioner mother, they have not been considered.

A New York Family Lawyer said that upon review of the record, the petitioner established by a preponderance of the evidence that the children were in imminent danger of emotional impairment based upon the alleged incidents of domestic violence between the children’s mother and the respondent. In connection with her admission in the separate neglect proceeding brought against her, the mother admitted that she and the respondent had several disagreements and arguments in the presence of the children and that sometimes the children were afraid. The respondent father failed to appear at the instant fact-finding hearing, and thus the court draw the strongest inference against her that the opposing evidence permits based upon her failure to testify at the hearing.

According to the evidence presented at the fact-finding hearing, when the police responded to the residence on a specified date, both the mother and the respondent admitted that they had been engaged in a loud argument in the living room, during which they struck each other. The police officer observed a scratch on the mother’s neck, which the mother admitted she received while she and the respondent were fighting. The police officer further observed that the one-year-old child (younger child) was crying in a bedroom, and he described the child as shook up and scared. The court conclude that the younger child’s proximity to the physical and verbal fighting that occurred in the living room, together with the evidence of a pattern of ongoing domestic violence in the home, placed him in imminent risk of emotional harm.

Published on: June 22, 2013

Administration for Child Service Files Petition for Neglect of Six Children

by Stephen Bilkis

On November 8, 2010, ACS (Administration for Children’s Services) filed petitions against a mother alleging that her six children were neglected children pursuant to Family Court Act. At that time, the youngest child was a new-born and the oldest child, was 16 years old. A New York Family Lawyer said five of the children were living with their mother in New York City having recently relocated from Washington, D.C. A 14 year old daughter had returned to Washington D.C., after coming to New York City briefly with her siblings when they relocated.

The petitions alleged that the respondent mother failed to provide the children with proper supervision and guardianship. Specifically, the petitions alleged that the school-age children were not enrolled in school in New York City during the 2010 2011 academic year until October 14, 2010. Additionally, the petitions alleged that the respondent misused marijuana; that she gave birth with a positive toxicology for marijuana and that she was not participating in a drug treatment program. A fact-finding hearing was conducted before the Court.

A New York Custody Lawyer called ACS called two witnesses on their direct case, the caseworker and the respondent mother. In addition ACS introduced a number of documents into evidence. These included oral report transmissions dated November 3, 2010 and November 4, 2010 as well as the hospital records for the mother and the baby.

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: 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: March 18, 2013

Court Determines if Abused Mother Leaving Home Affects Child Custody

by Stephen Bilkis

A husband seeks custody of their two children from his wife who surreptitiously left the conjugal home in New York and took the children to Virginia where the wife’s relatives all lived.

During the trial, the husband and the wife testified. A New York Family Lawyer said the mother-in-law of the wife and the sister-in-law of the wife also testified for the husband and against the wife. The judge took the two children to a nearby park and interviewed the children. The judge videotaped this interview with the children.

During the custody hearing it was proved that the husband and the wife had a child when they were just teenagers. They got married within three years after the birth of their first child. The wife was emotionally and physically abused. The abuse consisted of sexual assault. The husband would force the wife to have sex. He would kick the woman and bite her, hit her with his fists in her back and buttocks. He also constantly criticized and insulted her within the hearing of their children. Both the husband and the wife took drugs. A New York Custody Lawyer said the wife’s injuries were documented by emergency room visits where the nature and extent of her injuries were reported. The husband and wife were separated from each other for nine months. During these nine months, the husband fathered a child by another woman. He then left his newborn child by another woman and returned to the conjugal home. By that time, the wife had already sobered up and was no longer using drugs. The husband continued to use drugs and the sexual assault of the wife by the husband continued until the woman escaped the conjugal home with her two children and left for Virginia.

Published on: March 2, 2013

Father Claims Child is Being Sexually Abused

by Stephen Bilkis

Each party to these post-judgment proceedings seeks modification of the Judgment of Divorce from joint custody to sole custody. A New York Family Lawyer said the issue in the father’s case is whether the mother’s allegation of sexual abuse of the child involving the father and her request of the Court to restrict his access to the child constitutes a change of circumstances to modify the award of joint custody with physical residence to the mother, and if so, whether it is in the best interest of the child for sole custody and physical residence to be awarded to the father. The mother in her petition alleges the father is an unfit parent based on the sexual abuse allegations and requests his visitation be eliminated or supervised. The Court finds that there has been a sufficient change of circumstances and it is in the best interests of the child for her father to be granted sole custody.

The parties to this custody proceeding were married on September 7, 1991. There is one child of the marriage, born on July 27, 1995. They were divorced by Judgment of Divorce dated October 11, 1999 in the Supreme Court of the State of New York. A New York Custody Lawyer said the Judgment incorporated a Stipulation of Settlement entered into between the parties on the record in Court on July 30, 1999, and a written stipulation regarding custody, dated July 30, 1999, which survives and is not merged in the Judgment, and pursuant to which the parties share joint child custody, with primary physical child custody to the mother. The Supreme Court did not retain exclusive jurisdiction to modify the Judgment. The father was awarded child visitation schedule that consisted of Wednesday evenings between 5:30 p.m. and 7:30 p.m.; alternate weekends beginning Friday evenings at 6:00 p.m. through Sunday at 6:00 p.m.; and two weeks summer vacation in July and two weeks in August. The order also made provisions for holidays.

The complainant father and the opponent mother each seek modification of the Judgment and sole legal and physical custody of the child. A Nassau County Family Lawyer said the child has lived with her mother throughout her life. The father argues that the mother’s repeated fourth false accusation of sexual abuse, is indicative of the mother’s emotional instability and her attempts to frustrate his relationship with his daughter and that it is in the child’s best interest that the Judgment be modified to award him sole legal and physical custody. The Court finds that the mother’s fourth allegation of sexual abuse of the child is a sufficient change in circumstance, in that the mother, in part of a continuing pattern of attacks on the father in which she asked the Court to be her partner, interferes with and compromises his relationship with the child and, potentially, compromises the child’s future development. The Court finds that it is in the child’s best interest for custody to be awarded to the father in that continued joint custody and physical residence to the mother is detrimental to the child’s current and future development.

Published on: March 1, 2013

Young Mother Faces Neglect Charges

by Stephen Bilkis

A neglect complaint was filed against a 16 years old mother alleging that she left her child with her mother and other unknown individuals without making adequate provisions for her care. There were also allegations of poor hygiene and medical neglect with respect to a serious diaper rash. The 16 years old mother made an admission of neglect and her child was placed with the commissioner for an initial period of twelve months. A New York Family Lawyer said the goal of the permanency plan was return to the parent and the young mother was expected to complete parenting skills classes, engage in therapy and to obtain suitable housing and employment in order to meet that goal.

A social service group was assigned as the foster care agency to manage the family. The record in court contains no evidence as to when the said agency received the contract. There are no records at all when the child was placed in care. Almost three full years, the agency placed into evidence and the only records documenting an assorted 13 months of casework by no less than five different caseworkers. The young mother testified on her own behalf and the law guardian consequently did not present any independent evidence.

The complainant alleges that although the agency arranged visitation between the young mother and her child, the mother for more than a year following the date on which the child came into the agency’s care, failed substantially and continuously or repeatedly to maintain contact with her child. The caseworker’s records do not reflect any formal visitation schedule set up by the agency between the mother and her child. A New York Custody Lawyer said in fact, the casework records only noted the visits by the mother to her child in the foster home in passing, as part of her observations in home visits at the foster home, or in conversations with the foster mother. However, those limited references suggested that the visitation between the mother and her child was regular and frequent.