New York Family Law Blog

Published on: August 28, 2015

Court Decides Child Neglect Case

by Stephen Bilkis

The issue before this Court is whether a finding of neglect as to a newborn and the newborn’s older sibling may be based solely on the newborn’s positive toxicology for a controlled substance. We conclude that more than a positive toxicology is generally required for a neglect determination. We affirm in this case because, as the Appellate Division concluded, there is additional evidence in the record supporting the Family Court’s findings of neglect.

The appellant gave birth to her son in November 1990. Both mother and son tested positive for cocaine. After learning of the positive toxicologies, the Nassau County Department of Social Services (DSS) brought a petition pursuant to section 1022 of the Family Court Act to temporarily remove Dante from appellant’s care. Family Court conducted a hearing on the removal petition on November 21, 1990.

At the hearing, DSS presented evidence that the son was born with a positive toxicology for cocaine and a low birth weight. DSS also presented evidence that appellant had a history of cocaine abuse, had been admitted to several drug rehabilitation centers, and that appellant’s mother had custody of two of appellant’s children because appellant’s drug use rendered her incapable of caring for them. Appellant’s mother informed DSS that she had observed appellant high on cocaine in the last weeks of appellant’s pregnancy with the son. Appellant told DSS that she smoked a cigarette at a Halloween party at the end of her pregnancy which may have contained cocaine.

Published on: August 27, 2015

Court Rules on Hearsay Allegations

by Stephen Bilkis

The court said that for an order dismissing paragraph 3B of the violation petition as jurisdictionally defective pursuant to Family Court Act §311.2, in that it allegedly is not “sufficiently supported by non-hearsay allegations,” and further that it is not a condition of the Respondent’s current order of probation; and for a dismissal of the entire violation petition “for reasons of res judicata;” and also pursuant to Family Court Act §315.2 for such other and further relief as the Court may deem appropriate.

Respondent was initially arrested on or about May 26, 2004, upon a petition that alleged acts which, if the Respondent were an adult, would be coercion in the first degree in violation of §135.65 of the Penal law, a class D felony and coercion in the second degree in violation of §135.60 of the Penal Law, a class A misdemeanor. A fact-finding hearing commenced on May 30, 2004 and concluded on July 21, 2004 with respect to that petition; the acts constituting coercion in the first degree were dismissed and the Court made an affirmative finding with respect to the acts of coercion in the second degree. Thereafter at a dispositional conference, Respondent was placed on probation on consent for a period of 24 months, from September 2, 2004. In addition to the usual conditions of probation supervision, special conditions consisted of the following: “no contact with the victim; no gang affiliations or associations, except for Respondent’s brother; and Respondent to continue in counseling as directed.”

Published on: July 22, 2015

Court Review Social Service Law

by Stephen Bilkis

This termination of parental rights (TPR) proceeding was brought pursuant to Social Service Law (SSL) section 384–b by Petitioner against respondent in connection to her child, age four. The petition, filed August 24, 2009, seeks to terminate the parental rights of RM on the grounds of mental illness.1 The Court held a fact finding hearing on September 22, 2010, October 18, 2010, December 21, 2010, January 18, 2011, January 20, 2011, January 21, 2011, February 4, 2011, March 4, 2011 and April 26, 2011. On June 27, 2011, counsel delivered oral summations with supplemental written summations submitted to the Court on July 8, 2011.

The petitioner presented the testimony of one (1) witness: a qualified expert in the field of clinical psychology. Respondent presented the testimony of two (2) witnesses: a qualified expert in the field of forensic psychology, and RM who testified on her own behalf. Petitioner also submitted for judicial notice the following court orders, decisions and documents/photographs, in connection with the underlying child protective proceeding and prior termination of parental rights proceeding brought against RM as to her child, who was freed for adoption by order dated June 24, 2008.

Published on: July 21, 2015

Petitioners Bring Case Regarding Food Stamp Benefits

by Stephen Bilkis

Petitioners/plaintiffs commenced this hybrid proceeding/class action in June 2006, challenging reductions in their food stamp benefits. The reductions were made pursuant to a pilot project entitled the Group Home Standardized Benefit Program (“GHSBP”), instituted by Respondent/Defendant who is the Commissioner of the Office of Temporary and Disability Assistance (“OTDA”) of the New York State Department of Family Assistance.

In the course of the proceedings herein, Plaintiffs were granted partial summary judgment on their claim that the State Defendant’s implementation of GHSBP violated the state constitutional and statutory rulemaking requirements, Intervenor was granted leave to intervene, the application for certification of the Plaintiff class was denied, and the State Defendant’s motion for summary judgment was denied. By decision and order dated May 19, 2009, the Appellate Division, Second Department, reversed the denial of class certification and identified the Plaintiff class as “consisting of all recipients of food stamps in the State of New York whose food stamp benefits were determined and reduced under the Group Home Standardized Benefit Program and whose monthly income included payments of Supplemental Security Income benefits.

Published on: July 19, 2015

Father Appeals Custody Hearing Awarding Custody to Grandparents

by Stephen Bilkis

This is an appeal by the father of an 11-year old boy (1) from an order of the Family Court, Nassau County, entered July 31, 1973, which, without a hearing, awarded custody of the boy jointly to the 74-year old maternal grandmother and his 21-year old sister and the latter’s 20-year old husband, with visitation granted to the father, and (2) from so much of an order of the Supreme Court, Nassau County, entered October 17, 1973, as referred and remanded the question of custody to the Family Court, Nassau County, for a full hearing and determination.

At issue in these appeals is the custody of an 11-year old boy. The boy was three months old when his parents separated in November, 1962. Custody was with his mother until she died on February 9, 1973. The boy then remained with his sister. Within a month after the death of the boy’s mother, his father sought custody in the Family Court, Nassau County, as did the sister and her husband and the maternal grandmother. On the basis of a conversation with the boy, a report of the Family Court Mental Health Clinic and a report of the Nassau County Probation Department, but without a hearing, the Family Court awarded custody to respondents.

Published on: July 18, 2015

Court Listens to Two Related Cases Pursuant to Social Services Law 384b

by Stephen Bilkis

The two cases below are about family law and proceedings.

The first case deals with two related proceedings pursuant to Social Services Law § 384-b (4) to terminate the mother’s parental rights on the ground of permanent neglect, the mother appeals from two orders of disposition (one as to each child) of the Family Court, Nassau County (Foskey, J.), both dated June 13, 2002, which, after a hearing, determined that she failed to comply with the terms and conditions of an order suspending judgment of the same court (Koenig, J.) dated October 5, 2001, terminated her parental rights, and awarded custody and guardianship of the children to the petitioner for the purpose of adoption.

Published on: July 17, 2015

Defendant Contends The Court Has Insufficient Evidence

by Stephen Bilkis

On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed at least six beers, the defendant attended a friend’s party in Merrick in Nassau County. He arrived at the party, which consisted of a small gathering of his friends, between 11 P.M. and midnight. The house where the party was being held was approximately a five-minute drive from the Meadowbrook State Parkway.

At the party, the defendant was seen consuming several alcoholic drinks. Two of the defendant’s friends who were at the party described the defendant as intoxicated or “buzzed.” However, neither one observed the defendant stumbling or staggering while he was dancing, nor was he observed to be slurring his words.

Published on: July 16, 2015

Petitioners Request Final Judgment

by Stephen Bilkis

A motion (seq. No. 1) by the attorney for the petitioner for an order pursuant to Article 78 of the Civil Practice Law and Rules to compel the County Respondents to reduce petitioners’ total assessments on the April 2006 final roll by applying RPTL § 1805 assessment limitations and caps, and defining “assessment” as full property value-or-if a lower total assessment reduction results, to apply RPTL § 1805 assessment limitations to the parcel’s land assessment, and defining “assessment” as the full property value and “land assessment” as the full land value; to compel respondents, when applying RPTL § 1805 assessment limitations, to use an assessment as reduced by judicial review as the “previous year’s” assessment; and to compel Nassau County to pay refunds for any overpaid tax bills is determined as hereinafter set forth and adjourned suasponte to November 15, 2007. Cross-motion (seq. No. 2) by the attorney for the respondents for an order pursuant to CPLR § 3211(a)(5) and CPLR 3211(a) (7) dismissing petitioners’ Article 78 proceeding is denied.

The petitioners bring the within Article 78 proceeding for a judgment declaring that the alleged disparate treatment of petitioners’ class one property compared to class two and four properties with respect to lowering the level of assessment to avoid the application of RPTL § 1805 constitutes a violation of the equal protection clauses of the State and Federal Constitutions and petitioners are entitled to a refund from Nassau County for any overpaid tax bills.

Published on: July 15, 2015

Court Discusses Procedural History of Case

by Stephen Bilkis

A the outset, the Court would like to clarify some of the procedural history of this case which is related to the action Aurora v. Loan Services LLC v. BOM, et al., Index Number 22937/2009, a residential foreclosure proceeding.

Originally the undersigned under the mistaken impression that all papers had been fully submitted on the applications decided herein before these matters were reassigned to this part, issued decisions without the parties’ complete submissions. As a result, the Court vacated the decisions under motion sequence numbers 001 and 002 and, at a conference, counsel and the pro se defendants were informed of a new submission date and told to bring to the Court’s attention any additional arguments they deemed appropriate.

Published on: July 14, 2015

Patient Files Assistance Denial

by Stephen Bilkis

I. Matter of St. Francis hospital, as attorney-in-fact for JL.

For approximately two weeks in May, 1977, JL was a patient at St. Francis Hospital. He incurred a bill of $4,794.90 and applied for medical assistance. The Nassau County Department of Social Services, however, declared him ineligible and his application was denied. He appealed the denial and, after a fair hearing which he attended along with an attorney retained by the hospital, the State Department of Social Services affirmed the determination of the local agency.