New York Family Law Blog
A New York Family Lawyer said that in two related child neglect proceedings pursuant to Family Court Act, the appellant father appeals from so much of an order of the Family Court as denied his motion to vacate a fact-finding order of the same court, made upon his default in appearing at a fact-finding hearing, finding that he had neglected the subject children, and, in effect, to vacate an order of disposition of the same court, which, upon the fact-finding order, directed the release of the subject children to the mother’s custody and directed him to complete, inter alia, domestic violence counseling.
A New York Divorce Lawyer said the order dated July 7, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, the appellant’s motion to vacate the fact-finding order and, in effect, to vacate the order of disposition is granted, the fact-finding order and order of disposition are vacated, and the matter is remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing; and it is further, ordered that, upon remittal, the Family Court shall forthwith make an order with regard to the custody of the subject children pending the new hearing or hearings and determination.
A Queens Family Lawyer said these proceedings were commenced pursuant to Family Court Act upon the filing of two petitions, in which it was alleged that the appellant father was a person legally responsible for the care of two female children, and that these children were neglected by him. The petitions were based on a single incident, in which it was alleged that the appellant, among other things, grabbed one of the subject children on the side of her neck.
A Long Island Family Lawyer said the fact-finding hearing began on November 20, 2009. The appellant father was present at the hearing, but the caseworker employed by the Administration for Children’s Services (ACS) was absent. ACS introduced medical records and progress notes taken by the absent employee, which were admitted into evidence over the appellant’s objection. No fact witnesses were called to testify. The hearing was thereafter adjourned until February 9, 2010.
On August 24, 2010, the hearing was continued, but the appellant father was not present. ACS introduced certain other exhibits, but no fact witnesses were called to testify. ACS rested on the basis of the documents which had been admitted into evidence. The Family Court reserved decision.
The proceedings continued on December 13, 2010. The appellant father was present, and his attorney explained that the appellant had missed the previous hearing date because he relied on the adjournment slip that he had received, which listed the adjournment date as August 25, 2010. The Family Court did not address the appellant father’s statement, and instead adjourned the proceeding until January 14, 2011, due to the fact that the medical records introduced by ACS had been misplaced and had to be re-subpoenaed.
On January 14, 2011, the proceedings continued, with the appellant father again present. The Family Court concluded that the appellant had defaulted by failing to appear at the August 24, 2010, hearing date. The Family Court further concluded based on the documentary evidence submitted by ACS, that the appellant father had neglected the two subject children based on the incident described in the petitions. In a fact-finding order dated January 14, 2011, the Family Court determined that the petitioner had established by a preponderance of the evidence that the appellant neglected the subject children. The order was made on the appellant’s default.
In an order of disposition dated May 25, 2011, it was determined that the subject children would be at risk of abuse or neglect if returned to appellant, and, therefore, they were released to the custody of their mother. The order of disposition also directed the appellant father to complete domestic violence counseling.
The appellant father moved to vacate the fact-finding order and, in effect, the order of disposition. In support of his motion the appellant father submitted an affidavit in which he controverted the version of the facts presented in the documents introduced by ACS. The appellant specifically denied grabbing the subject child on her neck, as alleged in the petition. The appellant asserted that the medical records were inconsistent with the version of the events alleged by ACS.
The appellant father’s motion was opposed by ACS and the attorney for the children. In an order dated July 7, 2011, the appellant’s motion was denied on the ground that he failed to establish a reasonable excuse for the default as well as a meritorious defense.
If the parent or other person legally responsible for the child’s care is not present, the court may proceed to hear a petition under Family Court Act if the child is represented by counsel. The parent or other person legally responsible for the child’s care may move to vacate the order of disposition and schedule a rehearing within one year after being served with a copy of the order of disposition. Such motion shall be granted on an affidavit showing a meritorious defense to the petition, unless the court finds that the parent or other person willfully refused to appear at the hearing, in which case the court may deny the motion.
Here, the appellant submitted, among other things, an affidavit in which he averred that he had not intentionally defaulted, inasmuch as he missed the August 24, 2010, hearing date only because he incorrectly thought that the hearing was adjourned until August 25, 2010. The appellant actually appeared at the Family Court on August 25, 2010, only to find that the fact-finding hearing had already been conducted. The father also submitted the adjournment slip, which incorrectly showed that the matter was adjourned until August 25, 2010. Under the circumstances, including the father’s record of appearances at the previous hearing dates and the fact that the August adjournment date was changed numerous times during extended discussions at the previous court date, we conclude that the appellant adequately demonstrated that his failure to appear at the fact-finding hearing on August 24, 2010, was not willful.
Furthermore, the appellant demonstrated a potentially meritorious defense to the petitions. Contrary to the contention of ACS, the appellant’s affidavit was not conclusory. The appellant did more than merely intone that he had a meritorious defense. Rather, he controverted the evidence against him and presented an affidavit, based on his own personal knowledge, to support his version of what had transpired during the incident which formed the basis for the neglect petitions. The appellant was not required to conclusively disprove the allegations of the petition or otherwise establish as a matter of law that the entire proceeding must be resolved in his favor, since such a showing would render a rehearing superfluous. The appellant was simply required to show that he possessed a reasonable position on the merits, which was potentially meritorious.
Under the circumstances here, the Family Court improvidently exercised its discretion in denying the appellant’s motion to vacate the fact-finding order and, in effect, to vacate the order of disposition. Accordingly, the fact-finding order and order of disposition must be vacated, and the matter must be remitted to the Family Court for a new fact-finding hearing, and, if necessary, a new dispositional hearing.
Both the father and mother share equal rights and obligations to their children. However, they also must protect their children from everyone and everything that could harm them in any way possible. In order to protect your children’s rights, you can ask the legal help of the Kings County Abuse and Neglect Lawyer or the Kings County Order of Protection Attorney from Stephen Bilkis and Associates.