New York Family Law Blog

Published on: September 1, 2015

Court Hears Guardianship Proceeding

by Stephen Bilkis

The petition presented in this Art. 81 guardianship proceeding raises two questions that this court has not previously addressed. The first is whether it is appropriate for a facility to petition the court solely for the appointment of a special guardian of the property of an alleged incapacitated person residing in its facility where the sole power sought is to complete the Medicaid application for the facility. The second question that follows is then where there is no healthcare proxy executed by the alleged incapacitated person does the Family Healthcare Decisions Act vitiate the need for a personal needs guardian. Here the court finds that a residential facility/hospital should not petition the court for the appointment of a special guardian for the sole purpose of seeking Medicaid benefits when the patient is clearly incapacitated and clearly needs a guardian of the person as well. For the reasons stated herein the court finds that the Family Healthcare Decisions Act is not a substitute for the appointment of a guardian of the person pursuant to Art. 81 of the Mental Hygiene Law.

The petitioner herein is the administrator of the A. Holly Patterson extended care facility located at 875 Jerusalem Avenue, Uniondale, N.Y. where the alleged incapacitated person, AG, currently resides. He had been taken there after being treated at Nassau University Medical Center for a cerebral vascular accident (also known as CVA). AG is 80 years old and suffers from right hemiparesis, cognitive deficits, and seizure disorder, as well as dementia. He requires a gastrointestinal feeding tube for nutrition due to dysphagia, and is incontinent of bowels. He is bed bound and needs assistance with all activities of daily living. However, the court evaluator indicated in his report to the court that AG had the ability to communicate his wishes and therefore the hearing was held at the facility and AG was present.

Petitioner originally limited its application under Article 81 of the Mental Hygiene Law for the appointment of a special guardian of the property while acknowledging in their application that AG is an incapacitated person. When the court inquired prior to the hearing as to why petitioner did not also move for the appointment of a guardian of the person, petitioner stated that they believed it was not necessary because DA, a son of the alleged incapacitated person, had been located locally and it was the facility’s position that because a surrogate was available the Family Healthcare Decisions Act allows for that surrogate to make all medical decisions for adult patients as needed. Further, even if no surrogate had been found the petitioner’s stated position was that under the Family Healthcare Decisions Act the hospital may make medical decisions for the patient. Therefore, a personal needs guardian was not needed.

Published on: August 31, 2015

Court Decides Private Placement Adoption

by Stephen Bilkis

In this private placement adoption the natural mother of the subject child, born on October 21, 1976, and her husband, the alleged father, by order to show cause dated November 17, 1977 request an order: (1) vacating and setting aside the natural mother’s consent to the subject child’s adoption; (2) dismissing the adoption proceeding filed by the respondents; (3) requesting the court to determine the custody of the child; and (4) directing the respondents to deliver the subject child to the petitioners.

Following extensive and protracted pre-trial discovery by all parties, testimony was heard by Surrogate for 16 days commencing November 17, 1978 and concluding on July 1, 1980. The transcript is in excess of 2,100 pages with 23 exhibits in evidence. During the course of the discovery and hearing, the court rendered 8 decisions, and the guardian ad litem appointed by the court to represent the interests of the child filed 3 interim and 1 final report. On July 31, 1980, before he could render a decision, Surrogate retired, which requires this court to render a decision on a bitterly contested matter which it did not hear.

Published on: August 30, 2015

Husband and Wife Dispute Separate Property

by Stephen Bilkis

The petitioner and respondent were married on September 26, 1996, and were living together, with their children, in the marital residence located at 245 Hallman Avenue, Oceanside, New York 11572. A divorce proceeding was brought 8 years later in 2004, and the divorce was finalized by a judgment of divorce rendered in the Nassau County Supreme Court on September 8, 2008. The judgment of divorce regarded the marital domicile as a “separate property of [the husband].” Furthermore, it was adjudged that the wife must “remove from the former marital residence no later than 3 months following the entry of final judgment.” If the wife was unable to obtain suitable housing in the area, the judgment of divorce provided that respondent may “move for a reasonable extension of this deadline upon showing a bona fide diligent effort.” However, before the divorce was finalized, petitioner claims that respondent entered into possession of the marital residence by way of an oral license made on October 31, 2007, which expired on March 30, 2009. Thus, accordingly, on March 19, 2009, a 10-day notice to quit was served upon the respondent, requiring her to vacate from the subject premises by March 30, 2009. The respondent, however, has failed to surrender possession of the marital residence.

By motion dated July 12, 2009, the respondent, and now former wife of petitioner, seeks to dismiss the instant holdover proceeding instituted by her ex-husband. The respondent asserts three affirmative defenses in which she denies that an oral license agreement was entered into on October 31, 2007 and alleges that she is not a licensee, but a tenant, and thus, cannot be evicted in a summary proceeding. Additionally, respondent claims that she is entitled to a 30-day notice to quit, as opposed to a 10-day notice to quit. According to the affidavit submitted by the respondent, the respondent claims that the petition is defective in several respects: (1) The petitioner failed to serve respondent with a 30-day notice to vacate making the petition materially defective. (2) The petitioner alleged that respondent is a tenant, but served only a 10-day notice to quit. (3) In the alternative, the proper forum to decide all issues of possession is the Nassau County Supreme Court.

Published on: August 29, 2015

Interesting Case Regarding Invitro Fertilization

by Stephen Bilkis

The instant case presents this court with issues of first impression in New York regarding the status and ultimate disposition of fertilized human ova that are the product of an in vitro fertilization (hereinafter IVF) procedure in which one of the prospective parents no longer wishes to participate. Although the parties have raised, inter alia, various fundamental legal and policy arguments in support of their respective positions, we conclude that this controversy is governed by the intent of the parties as clearly expressed in the provisions of an informed consent document which they voluntarily executed as participants in the IVF program and in a subsequent “uncontested divorce” instrument which they executed shortly thereafter, both of which manifest their mutual election that the IVF program should retain the cryopreserved pre-zygotes for approved research purposes under the circumstances of this case. Furthermore, by stipulating to the decision of this matter on submissions, the parties have charted their own course and the plaintiff, not having submitted sufficient evidence to support her contentions, cannot prevail.

The plaintiff and the defendant were married on July 4, 1988. Apparently as a result of her in utero exposure to Diethylstilbistrol (DES), the plaintiff experienced difficulty in conceiving a child through coital relations. Accordingly, the parties enrolled in the Long Island IVF program at John T. Mather Memorial Hospital and at that time executed a “General IVF Consent Form No. 1”. It is undisputed that the parties underwent 10 unsuccessful attempts to have a child through IVF between March 1990 and June 1993, at a total cost in excess of $75,000. The last of these procedures commenced in May 1993. On May 12, 1993, prior to the procedure, the parties executed a single, seven-page informed consent document dealing with cryopreservation and consisting of two sections, to wit: “INFORMED CONSENT FORM NO. 2: CRYOPRESERVATION OF HUMAN PRE-ZYGOTES”, comprising pages one to five of the document, and “INFORMED CONSENT FORM NO. 2–ADDENDUM NO. 2-1: CRYOPRESERVATION–STATEMENT OF DISPOSITION”, consisting of pages six and seven. Insofar as relevant, the first section of the document contained the following general language regarding cryopreservation: “III Disposition of Pre-Zygotes. “We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage.

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.