ABUSE
SHAKEN BABY SYNDROME
People v. Flores-Estrada, 51 N.Y.S.3d 863 (Sup. Ct. 2017). Defendant babysitter was indicted for reckless assault and endangerment of baby whose injuries were consistent with nonaccidental trauma and rapid acceleration/deceleration. Defendant sought to preclude prosecution’s expert testimony on shaken baby syndrome/abusive head trauma (SBS/AHT), or alternatively for Frye hearing to determine whether such testimony remained generally accepted within scientific community. Trial court ruled issue whether scientific evidence of SBS/AHT was admissible as generally accepted as reliable was for jury and defendant could cross-examine prosecution witnesses and call her own experts.
SUFFICIENCY OF EVIDENCE
Gwen Y. v. Office of Children & Fam. Servs., 2015 WL 6181613 (N.Y. App. Div.). Evidence was insufficient to show daughter’s broken leg resulted from mother’s failure to provide appropriate supervision. Caseworker’s notes relied on statements of treating orthopedic surgeon who was unaware of genetic condition that helped explain extent of injury. Affidavits from daughter’s pediatrician showed lack of indication of abuse or neglect, and psychologist’s evaluation of mother indicated her account of incident was credible and there was no history of mental health or substance abuse issues.
ADOPTION
BEST INTERESTS
In re Sandra N., 962 N.Y.S.2d 75 (N.Y. App. Div. 2013). Trial court properly determined that children should be adopted by foster parents rather than moved to great grandmother’s home. Finding was supported by fact that state case law does not contain a presumption for placement with a relative and children had been with foster parents since shortly after birth.
RELIGIOUS PREFERENCE
In re James WW., 955 N.Y.S.2d 424 (N.Y. App. Div. 2012). Trial court properly ordered placement for adoption with child’s current foster parents despite mother’s preference for a Jewish home for the child. Though state statute provides for preferential placement with members of the same religious group as the family, the preference can be overcome by the best interests of the child where child had been with foster parents for over a year.
CONFIDENTIALITY
RIGHT TO PRIVACY
Admin. for Children’s Servs. v. Erica A., 946 N.Y.S.2d 455 (N.Y. Fam. Ct. 2012). In case where mother’s attorney sought to record child and mother for use in a training video to highlight their law office’s holistic approach to child welfare advocacy, parties were entitled to an evidentiary hearing on whether including child in video was in his best interests. Though the mother had reportedly agreed to let her son participate in the video, the child’s individual rights represented by a guardian ad litem and the agency’s interest justified a full hearing on the matter.
CUSTODY
GRANDPARENTS
Ferguson v. Skelly, 914 N.Y.S.2d 428 (N.Y. App. Div. 2011). Trial court properly found that extraordinary circumstances did not exist to support allowing grandfather to retain custody of children whom he cared for while children’s mother and father were abusing drugs; despite father’s shortcomings, he had turned his life around and completed substance abuse classes, underwent counseling, secured a job and stable home, and was living a healthy lifestyle free from drugs.
THIRD PARTIES
McBride v. Springsteen-El, 967 N.Y.S.2d 768 (N.Y. App. Div. 2013). Where neglect petition was dismissed previously when child was placed with aunt via consent order, trial court erred in dismissing mother’s later modification petition because she had not showed changed circumstances. Because earlier consent order did not require finding for third party custody purposes and no neglect adjudication had taken place, burden was still on aunt to show mother’s unfitness or extraordinary circumstances.
DELINQUENCY
EVIDENCE
In re Jakwon R., 973 N.Y.S.2d 228 (N.Y. App. Div. 2013). Family court erred in suppressing evidence of a gun found on youth in delinquency proceeding. Officers had reasonable cause to search youth where he and companions matched the physical description of robbery suspects, were dressed similarly, were nearby crime scene, and were seen by officers 10 minutes after the call.
GROUNDS
In re Luis C., 998 N.Y.S.2d 120 (N.Y. App. Div. 2014). On issue of first impression, juvenile’s theft and possession of his grandfather’s debit card number, and not debit card itself, was insufficient to support delinquency adjudication. He did not steal or possess a “debit card” merely by using the card numbers to buy sneakers. His acts violated provisions of the criminal law, just not the ones charged in the petition.
HEARINGS
In re Tyquan C., 998 N.Y.S.2d 188 (N.Y. App. Div. 2014). Family court did not abuse its discretion in denying juvenile’s recusal motion in delinquency proceedings. Court was presumed capable of making fair fact-finding determination based on evidence presented and relevant burden of proof, even though court had presided over other hearings and made findings of fact on issues other than juvenile’s guilt or innocence.
SEARCHES
In re Shariff H., 978 N.Y.S.2d 55 (N.Y. App. Div. 2013). Family court properly dismissed delinquency petition after suppressing results of a warrantless search that revealed bullets in minor’s backpack, which were unlawful under New York City code. Minor had not abandoned his backpack and officers did not show exigent circumstances that justified a search without a warrant.
DEPENDENCY
ADJUDICATION
Tyler S., 960 N.Y.S.2d 438 (N.Y. App. Div. 2013). In dependency adjudication, where sole issue was child’s injury, state failed to meet burden in proving abuse where mother reported the child had slipped from her hands in the bathtub and expert testimony was conflicting. Testimony by expert with pediatric experience that the fall could have caused the injury rebutted the state’s case. State’s two experts were not as experienced with infants, and one admitted the injury was possible given mother’s account.
CHILD WITNESSES
In re David H., 7 N.Y.S.3d 452 (N.Y. App. Div. 2015). Court’s finding that mother neglected two of her children by inflicting excessive corporal punishment and failing to supply adequate food was supported by preponderance of evidence. Evidence included children’s out-of-court statements that their mother struck them with her fist and other objects. Children’s statements were corroborated by caseworkers’ testimony, medical records documenting child’s injuries, and children’s own cross-corroborating statements.
In re Kyanna T., 7 N.Y.S.3d 452 (N.Y. App. Div. 2012). In dependency proceeding, where child testified about sexual abuse, court properly excluded parents from courtroom. Court properly balanced child’s and parents’ rights where, after concluding she would be traumatized by testifying in front of her parents, it excluded them but allowed their counsel to remain in court and they were given the opportunity to cross-examine the child.
In re Naitalya B., 2017 WL 1842428 (N.Y.App. Div.). In case alleging mother neglected daughter and derivatively neglected son, evidence indicated mother inflicted excessive corporal punishment on daughter, causing child to sustain bruises all over her body. Child’s out-of-court statements were sufficiently corroborated by agency caseworker and hospital staff’s observations of bruises on child, photographs of injuries, and medical records. Child’s repetition of same allegations did not provide corroboration for out-of-court statements, but consistency of child’s reported statements enhanced her credibility.
COLLATERAL ESTOPPEL
In re Idhailia P., 945 N.Y.S.2d 705 (N.Y. App. Div. 2012). Family court properly granted agency’s motion for summary judgment on its dependency petition regarding siblings where father pled guilty to raping his older daughter in criminal case. Collateral estoppel may apply in family law case where a defendant has an opportunity to litigate the identical issue in a prior criminal case and fact that father repeatedly raped daughter in case showed he had fundamental defect in ability to safely parent her siblings.
CONCURRENT PLANNING
In re Dakota F., 939 N.Y.S.2d 586 (N.Y. App. Div. 2012). Family court erred in ordering concurrent goals of reunification and adoption in dependency case. Family court must choose only one permanency goal given the statute’s use of the conjunction ‘or’ and goals of adoption and reunification are inherently contradictory such that the agency could not work toward both.
CORPORAL PUNISHMENT
In re Hayden C., 130 A.D.3d 924 (N.Y. App. Div.). Preponderance of evidence supported finding that father neglected child by inflicting excessive corporal punishment on him. Neglect finding supported determination that father derivatively neglected another child. Out-of-court statements by children were sufficiently corroborated by testimony of school nurse and child welfare caseworkers, who had also observed evidence of physical injury, as well as by children’s own cross-corroborating statements.
In re Jayden R., 2015 WL 9464968 (N.Y. App. Div.). Court found mother neglected older son by inflicting excessive corporal punishment on him and derivatively neglected younger son. Mother had history of hitting son with belt and causing bruises to his body, child welfare agency caseworker observed bruises, photographs depicted injuries, and mother admitted beating child with belt. Mother’s boyfriend also inflicted excessive corporal punishment and mother failed to protect son.
Parker v . Carrión, 914 N.Y.S.2d 150 (N.Y. App. Div. 2011). Administrative law judge’s determination that mother used excessive corporal punishment was incorrect where mother attempted to hit child on the behind, but child turned around when trying to run away and was accidentally hit in the face and there was no evidence that child required medical treatment.
In re Tayleese M.C., 2014 WL 5350447 (N.Y. App. Div.). Preponderance of evidence supported court’s determination that mother neglected child by using excessive corporal punishment and committing acts of domestic violence against father while in child’s presence. Her actions impaired, or created imminent danger of impairing, child’s physical, mental, or emotional condition.
COURT ORDERS
In re Joshua P., 975 N.Y.S.2d 440 (N.Y. App. Div. 2013). Clerical error in court order identifying nonexistent criminal code did not invalidate court order. Preponderance of evidence showed father had sexually abused daughter, a statutory offense. Further, trial court properly concluded siblings were derivatively abused based on father’s sexual abuse of one child, which showed a lack of good judgment that placed other children at imminent risk of harm.
DERIVATIVE ABUSE
In re Iryanna I., 2015 WL 6181548 (N.Y. App. Div.). Father’s sexual abuse of former wife’s daughter over three-year period beginning when she was seven years old, which led to initial adjudication that he neglected, abused, and severely neglected six of his biological children and his former wife’s daughter, was sufficiently proximate to support finding that he engaged in derivative abuse of his eighth biological child. Eighth child was born three years after initial adjudication and five years after acts of sexual abuse.
DOMESTIC VIOLENCE
In re Amier H., 966 N.Y.S.2d 182 (N.Y. App. Div. 2013). Where children were alleged to have been neglected based on a single domestic violence incident, but where substantial evidence did not show mother failed to protect her children on that date, trial court erred in finding children dependent based on additional evidence presented about earlier domestic violence that was not in petition and that mother did not have an opportunity to prepare to defend.
In re Anthony FF., 963 N.Y.S.2d 483 (N.Y. App. Div. 2013). Family court properly found child dependent despite mother’s claim she was merely a victim of domestic violence where the record reflected mother allowed the perpetrator into her home despite having a protection order, partially blamed her children for the incident, and told her children to lie about it.
In re Chaim R., 943 N.Y.S.2d 195 (App. Div. 2012).
Family court erred in finding children were neglected where petition was based on single domestic violence incident
between parents and where there was no evidence that children were in harm’s way or emotionally impacted by incident. While domestic violence may form basis for neglect finding, facts must show harm or an imminent threat to a child’s safety.
In re Justin A., 2015 WL 7462464 (N.Y. App. Div.). Court’s finding that parents’ children were neglected was supported by consistent accounts of abuse in household. Caseworker responding to abuse report interviewed mother, who stated that father physically abused her and one of two children, called mother and both children derogatory names, and one child did not want to go to school for fear father would kill mother.
In re Jubilee S., 35 N.Y.S.3d 645 (Fam. Ct. 2016). Child welfare agency failed to corroborate child’s hearsay statement that father “hits her mother all over her body” or prove children suffered physical, mental, or emotional harm as result of altercations between parents. Domestic violence in presence of child may be permissible basis for neglect finding; however, exposing child to domestic violence is not presumptively neglectful.
DISPOSITION
In re Brianna L., 956 N.Y.S.2d 518 (N.Y. App. Div. 2012). A mother assaulted her son and was prohibited from having contact with him by a criminal court. Thereafter, a family court erred in concluding it could not return child to mother’s custody in dependency case despite criminal order being written ‘subject to Family Court’ and its own belief it was in child’s best interest. Family court may modify provisions of criminal orders subject to subsequent family court orders and is in a good position to ascertain the best interests of a child given added protections and opportunities for information gathering in dependency cases.
In re Monique M., 973 N.Y.S.2d 665 (N.Y. App. Div. 2013). Family court erred in issuing dispositional order without holding a hearing. Though facts in adjudication showing that mother allowed boyfriend, who previously shot her, back in home where he abused a child, and there were no allegations against father may have supported removal from mother and placement with father, due process requires court hold a hearing and give parties opportunity to call witnesses and present evidence.
In re Tiara G., 959 N.Y.S.2d 147 (N.Y. App. Div. 2013). Trial court properly found safety of children required placement in care where mother had beaten one child so severely that marks were visible a year later, failed to pick up her child when requested by police, and behaved aggressively and erratically around professionals.
EDUCATIONAL NEGLECT
In re Ricky S., 139 A.D.3d 959 (N.Y. App. Div. 2016). Educational neglect of school-aged child may support finding of derivative neglect of sibling younger than school age. However, truancy of one teenaged child, who resisted going to school, and which resulted in finding father educationally neglected child, did not establish derivative neglect of sibling who was not even of school age.
In re Santino B., 941 N.Y.S.2d 743 (App. Div. 2012). Evidence supported family court’s finding of educational neglect where brothers were absent or tardy dozens of times without excuse during the year. Parents failed to adequately address the issue by refusing to allow special education testing and not meeting with teachers to discuss the problems.
EMERGENCY REMOVAL
Rankel v. County of Westchester, 2016 WL 143321 (N.Y. App. Div.). Court properly exercised its discretion in permitting child welfare agency officials to amend answer in § 1983 action to assert affirmative defense of qualified immunity in parents’ action alleging that officials’ emergency removal of children violated their constitutional rights. In emergency situations, where child is at imminent risk of harm, child may be removed from parent’s care without court authorization or parental consent.
EMOTIONAL ABUSE
In re Alexander G., 940 N.Y.S.2d 189 (N.Y. App. Div. 2012). Family court properly denied neglect petitions against parents who were uncooperative with school and otherwise failed to address their child’s behavioral problems. Though the record reflected parents had made poor parenting decisions, trial court was within discretion to find that this did not rise to the necessary level of harm or an imminent danger.
In re Amodea D., 978 N.Y.S.2d 513 (N.Y. App. Div. 2013). Family court properly found children were emotionally abused when father kicked and choked mother in front of them, child reported she was “sad and scared” during the incident, and both children reported still being afraid of the father after the incident.
In re Jayden B., 938 N.Y.S.2d 692 (N.Y. App. Div. 2012). Family court erred in dismissing neglect petition against mother where she and her partner engaged in violent altercations in the presence of the children. Given the testimony that the child were often afraid of the mother and her girlfriend, that these fights were frequent and required police intervention, petitioner showed by a preponderance of evidence that children were at risk for serious emotional harm.
EXTENDED PLACEMENT
Jairy R. v. Jeffrey H., 934 N.Y.S.2d 688 (App. Div. 2011). Trial court could not order child welfare agency to extend expired placement of juvenile who had been determined to be a person in need of supervision (PINS). Statute permitting the return of a former foster youth under age 21 to foster care when the discharge was caused by a “failure to consent to continuation of placement” was not meant to apply to PINS juveniles who were no longer under court jurisdiction because placement expired.
FAILURE TO IMPROVE
In re Jaileen X.M., 974 N.Y.S.2d 440 (N.Y. App. Div. 2013). Family court properly terminated parents’ rights where they failed to correct the conditions that led to removal. Parents did not complete mental health assessments or any treatment that might have been recommended and continued risks of harm were shown where children returned from visits smelling of urine, with severe diaper rash, and with unexplained scratches and bruises.
In re Nadine L., 938 N.Y.S.2d 530 (App. Div. 2012). Termination was appropriate where father claimed financial hardship prevented him from assuming custody of his children but where he had an income over $60,000 and had stable housing for many years. Despite services by the agency to improve his capacity to care for his children, father would not accept return of children, supporting trial court’s determination that he would not be able to parent in a reasonable amount of time.
In re Sjuqwan Anthony Zion Perry M., 975 N.Y.S.2d 387 (N.Y. App. Div.2013). Mother failed to remedy conditions that led to her children’s removal by not securing suitable housing, as required by suspended termination judgment. Mother lived in a shelter with father, who continued to abuse drugs, and had plans to move to an apartment with him.
FAILURE TO PROTECT
In re Jessica L., 941 N.Y.S.2d 42 (N.Y. App. Div. 2012). Trial court improperly found father had neglected children by failing to protect them from the effects of mother’s drug use because father did not know she was using and made an effort to protect them by contacting child protective services. Mere fact that mother was not working and that a child had an untreated rash before he sought assistance, did not fall below the minimum standard of protection required.
In re Lakshmi G., 974 N.Y.S.2d 60 (N.Y. App. Div. 2013). Child was properly adjudicated dependent as to father where he failed to protect her when he left her in mother’s care. Father knew mother was having visual and auditory hallucinations for a year and she threw the child on the ground outside when she believed she was possessed.
In re Orlando R., 977 N.Y.S.2d 30 (N.Y. App. Div. 2013). Family court properly concluded father failed to protect child in dependency trial where he secured a place to stay with a friend he knew to be a drug user. Father’s friend had a history of drug use, and she resumed using drugs, exposing child in utero. Further, father’s series of incarcerations contributed to his inability to ensure mother did not abuse drugs during pregnancy.
In re Shannen AA., 914 N.Y.S.2d 768 (App. Div. 2011). Trial court’s finding of dependency was proper on failure to protect ground where mother allowed her daughter to reside with relatives in a hotel for five weeks after learning that the child’s father, who she knew to be a registered sex offender, was residing there and where she failed to seek medical attention for her daughter for several days after she reported she had been raped.
In re Stevie R., 947 N.Y.S.2d 832 (N.Y. App. Div. 2012). Family court properly found father neglected child by failing to protect her from mother’s drug use. Child was born positive for opiates and amphetamines and father lived with her during the pregnancy such that he should have known about the drug use and discontinued prenatal care.
FRYE HEARING
In re Bethany F., 925 N.Y.S.2d 737 (N.Y. App. Div. 2011). In proceeding to place father under child welfare agency supervision based on finding that he sexually abused daughter, Frye hearing on admissibility of validation testimony by court-appointed mental health counselor was not warranted since counselor’s interview method had been cited by appellate court, New York courts had admitted similar testimony by experts using the same method, and counselor testified regarding widespread use of interview approach in the field.
GROUNDS
In re Salvatore M., 961 N.Y.S.2d 292 (N.Y. App. Div. 2013). Family court properly adjudicated child neglected where mother made repeated unfounded allegations of abuse against the father resulting in multiple medical examinations and interviews by the agency and law enforcement showing a lack of adequate supervision.
GUARDIANSHIP
In re Michael TT., 2011 WL 4744115 (N.Y. App. Div.). Child welfare agency lacked authority to terminate its guardianship and custody of 17 year old when he was arrested and pleaded guilty to two crimes and was transferred to a substance abuse treatment program; New York statute requires agencies to supervise children who have been removed from their families until they turn 21, are returned to their parents, relatives, or guardians, or are adopted.
HEARSAY
In re Justin CC., 909 N.Y.S.2d 771 (App. Div. 2010). In dependency proceedings, hearsay statements by third parties about child’s statements describing father’s sexual and physical abuse were sufficiently corroborated by child’s in-court testimony, which matched her prior statements, and by her written statement to police.
HEARSAY
In re Matthew L., 2016 WL 6271106 (N.Y. App. Div.). Children’s out-of-court statements to caseworker in neglect proceeding against father about domestic violence towards mother and excessive corporal punishment were sufficiently corroborated. Each child’s account of father’s behavior, including pulling of children’s hair and hitting them with belt and hands, was essentially similar to other children’s accounts, mother’s testimony, and father’s admissions about punishment.
HOMELESSNESS
In re Niya Kaylee S., 973 N.Y.S.2d 111 (N.Y. App. Div. 2013). Family court properly found children were neglected where mother had lacked housing, a legal source of income, or medical care for approximately a year while she had allowed aunt to care for children. Evidence her grandmother would allow her to live with her for “a while” did not compel a different result.
IMMIGRATION
In re Leslie J.D., 2016 WL 3533267 (N.Y. App. Div.). Child requested leave to renew motion to obtain order declaring her dependent with specific findings that she was unmarried and under 21 years of age, reunification with one or both parents was not viable due to abandonment, and it would not be in her best interests to return to Belize, her previous country of nationality and last habitual residence. Such findings would enable child to petition for special immigrant juvenile status (SIJS). New facts offered on motion would not change prior determination that reunification of child with one or both parents was not viable due to parental abandonment.
INADEQUATE SUPERVISION
In re Erica D., 909 N.Y.S.2d 64 (App. Div. 2010). Evidence supported neglect finding based on mother’s inability to provide adequate care for her daughter who had Down’s Syndrome with autistic features requiring constant care; mother’s own limitations prevented her from adequately caring for daughter’s intense needs and placed daughter at imminent risk of harm.
JURISDICTION
In re Bridget Y., 936 N.Y.S.2d 800 (N.Y. App. Div. 2011).Trial court properly exercised emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act after parents voluntarily agreed to allow New York relatives to have physical custody as part of a safety plan. Though the New Mexico court thereafter issued an order placing the children with family friends in Ohio, continued exercise of jurisdiction by New York was proper because New Mexico had a criminal but no pending civil neglect case and thus had not made an order to protect the children and placement in Ohio allowed parents additional control over children.
KINSHIP CARE
Elizabeth L. v. Jaris S., 2016 WL 3095257 (N.Y. Fam. Ct.). Former kinship foster parent had standing to pursue custody and was entitled to temporary order of visitation with twin foster children who were removed from her foster home, which was closed due to allegations she assaulted her boyfriend in children’s presence. Kinship foster parent did not lose status as relative or standing to seek custody merely because she became kinship foster parent and because her home had been decertified. To deny visitation would deny opportunity to maintain relationship before court heard all evidence concerning best interests.
MEDICAL NEGLECT
In re Izayah J., 962 N.Y.S.2d 491 (N.Y. App. Div. 2013). Children born prematurely were properly found dependent as to their father when he failed to comply with recommendations of physicians assigned to the neonatal intensive care unit. Testimony showed that any caretaker for the twins would need frequent instruction as to their special medical needs and father’s lack of attendance for hands-on instruction during their four-month stay and especially during the 15 days before discharge put them at serious risk.
In re Mary YY., 968 N.Y.S.2d 692 (N.Y. App. Div. 2013). Where child was born eight weeks premature and with a cleft palate and was not gaining weight, trial court properly found father neglected child. Father refused diagnostic tests to determine the cause of her low weight and refused admission to the hospital for monitoring and treatment. Father had been instructed by medical professionals repeatedly on feeding techniques to cope with child’s needs, yet child only gained weight when under medical care, showed that lack of weight gain was due to father’s lack of proper care.
MENTAL HEALTH
In re Joele Z.F., 2015 WL 1894413 (N.Y. App. Div.). Evidence supported finding that mother with untreated mental illness neglected child. Although mother and child lived in apartment with broken windows and no working gas, mother refused access to landlord or energy company to make repairs and restore gas. Mother’s mental condition rendered her unable to provide child with adequate supervision, resulting in conditions that caused child to be depressed, anxious, and angry.
In re Shay-Nah FF., 966 N.Y.S.2d 266 (N.Y. App. Div. 2013). Family court properly found mother neglected child where her older children had been previously removed for physical abuse and by the time the third child was born, she had not been able to remedy her mental health issues that led to the earlier abuse, had violated an order of protection regarding the child’s father, and though she had finally secured income and housing, she was looking for a new place due to getting in an altercation with a neighbor.
MENTAL ILLNESS
In re Anthony TT., 914 N.Y.S.23 765 (App. Div. 2011). Trial court properly found children dependent as to father due to his untreated mental illness where he had convinced his children that various governmental agents had implanted surveillance devices in his body and where he had threatened to harm their mother in their presence.
In re Assata P., 961 N.Y.S.2d 586 (N.Y. App. Div. 2013). Mother’s paranoid behavior supported preponderance of the evidence finding by family court that child was neglected in dependency case where she believed, without evidence, that the government and her sister sought to kill her, and she constantly moved to different hotels, thus spending the money needed for caring for her children.
In re Immanuel C.-S., 962 N.Y.S.2d 122 (N.Y. App. Div. 2013). Family court properly found child dependent where mother had a mental illness that put her children at risk as shown by the facts that she had not taken her child to a doctor or dentist for several years and the deplorable condition of the home. State was not required to show past or present harm, merely an imminent risk of harm.
In re Nialani T., 2 N.Y.S.3d 581 (N.Y. App. Div. 2015). Proof of mental illness alone will not support finding of neglect. There was no causal connection between mother’s mental illness and actual or potential harm to child. No evidence established mother ever failed to properly care for child or provide child with adequate food, clothing, or shelter. Evidence indicated child was healthy, active, and intelligent two year old.
In re Skye C., 8 N.Y.S.3d 126 (N.Y. App. Div. 2015). Preponderance of evidence supported court’s finding that mother neglected child. Record showed mother’s untreated mental illness placed child at imminent risk of impairment. Testimony of mother and caseworkers showed that mother socially isolated child and kept child confined to unsafe and unsanitary room in shelter most of the time.
NEGLECT
In re Clayton OO., 956 N.Y.S.2d 328 (N.Y. App. Div. 2012). Where mother sent child to live with brother due to child’s behavior problems, trial court erred in finding child was not neglected where mother refused to care for him. Though agency believed she could safely parent child by the time of trial, her refusal to engage in any services put child at serious risk.
In re Dylynn, 2016 WL 634798 (N.Y. App. Div.). Determination of neglect of stepson by stepfather was supported by record. Grandmother’s statement that stepfather had pinned stepson on floor and put his arm around stepson’s neck, grandfather’s statement that stepfather was particularly abusive towards stepson and hit him on mouth or threw him to floor when he tried to talk, and grandfather’s statement about particular incident in which stepfather pinned stepson against wall and hit him showed imminent danger of harm or impairment sufficient to establish that stepson was neglected child.
In re Milagros A.W., 2015 WL 2457849 (N.Y. App. Div.). Father did not place three-week-old baby in actual or imminent danger of impairment, as required for finding of neglect, when he forcibly took child out of stroller and away from mother after an argument and traveled with baby on public transportation to his home. Although father exhibited undesirable parental behavior, baby was not injured during event.
ORDERS
In re Giovanni S., 950 N.Y.S.2d 777 (N.Y. App. Div. 2012). Trial court improperly granted state’s motion for judgment in adjudication proceeding at the close of the state’s evidence but before mother could present defense witnesses. A ruling in the case was untimely because, though the state may have made out a prima facie case, mother proffered triable issues of fact including the contention that, though she was found with illegal drugs, there was no showing of how she had specifically endangered her child.
PARAMOUR
In re Tyler MM., 918 N.Y.S.2d 644 (N.Y. App. Div. 2011). Trial court correctly found that mother’s paramour was a person legally responsible for the care of the children in dependency adjudication; though mother’s boyfriend was only 19 and just a few years older than the oldest children, he had lived in the home for a year and had daily responsibility for care of the children, including cooking, cleaning, and getting them ready for school.
PERMANENCY PLAN
In re Sean S., 926 N.Y.S.2d 230 (App. Div. 2011). Trial court order changing children’s goals to adoption was against the weight of the evidence where teen brothers were strongly opposed to adoption, a psychological report recommended against adoption, and they had a written promise from their foster parent to serve as a permanent support for another planned permanent living arrangement purposes.
PETITIONS
In re Enrique S., 2015 WL 9281215 (N.Y. App. Div.). Family Court properly amended neglect petition to conform to evidence. Father had ample notice of new allegations and opportunity to respond. Child welfare agency met its burden in showing father neglected children by reason of untreated mental illness and violent behavior toward mother, as well as by his failure to protect children from mother’s neglect, which he knew or should have known created risk of harm.
In re Madison H., 952 N.Y.S.2d 124 (N.Y. App. Div. 2012). Trial court properly amended petition to add that child was endangered by domestic violence on part of father because he had been adequately notified of the underlying claims by the mother and had ample opportunity to cross-examine her.
PHYSICAL ABUSE
In re Amir L., 961 N.Y.S.2d 386 (N.Y. App. Div. 2013). Family court improperly found child neglected.While femur fracture was unlikely to occur to a five-month-old absent acts or omissions of parents, parents effectively rebutted prima facie case by showing that after injury occurred, their delay in seeking medical attention was reasonable given the child’s lack of apparent pain and display of normal physical activity.
In re Aniya C., 952 N.Y.S.2d 127 (N.Y. App. Div. 2012). Trial court properly found child dependent based on physical abuse where mother beat child with a belt leaving bruises and marks on her necks, arms, and legs. Contrary to mother’s argument, state was not required to prove child had suffered a “significant injury” in finding child dependent.
In re David T.-C., 974 N.Y.S.2d 506 (N.Y. App. Div. 2013). Family court properly found that mother effectively rebutted the state’s case alleging that she had physically abused her child leading to her death. The state’s expert testified that the child was beaten the day before she died, and the mother’s expert, who performed the autopsy, testified that the trauma could have happened days earlier, when the child was not in the mother’s exclusive care.
REASONABLE EFFORTS
In re Ronnie P., 909 N.Y.S.2d 775 (App. Div. 2011). There was clear and convincing evidence that child welfare agency made reasonable efforts to strengthen parent-child relationship as required to support permanent neglect finding; agency assigned caseworkers who devised case plan for mother and provided various programs and services, visitation, counseling and guidance on steps to take to ensure children’s return.
In re Taylor, 914 N.Y.S.2d 404 (N.Y. App. Div. 2011). Trial court properly found child welfare agency failed to make reasonable efforts to finalize developmentally disabled child’s permanency plan of placement in adult residential facility with significant connection to an adult resource; record showed agency’s efforts to identify adult connection for child were insufficient, including its day-of-hearing discussion of possible connection to siblings’ adoptive mother and failure to investigate other adults with previously established connection to child.
REMOVALS
In re Baby Boy D., 2015 WL 1810359 (N.Y. App. Div.). Court’s determination that remand of child to mother’s custody would place him at imminent risk of harm was based on mere speculation that mother would not enforce protection order against child’s father. Temporary removal pending outcome of child protection proceeding was unwarranted. Mother testified she lived apart from father and would enforce order; caseworkers confirmed she lived alone, successfully completed therapy, and consistently attended and fully engaged in supervised visitation.
REPORTS
Elizabeth v. New York State Office of Children and Fam. Servs., 47 N.Y.S. 3d 515 (Ct., App. 2017). The New York Court of Appeals concluded a child maltreatment report should be expunged and the record sealed where the basis of the report was unfounded. The report found a biological mother failed to protect her children from harm because she waited three days before contacting police about domestic violence she experienced in the home. The court reasoned the mother’s delay did not indicate failed guardianship, but rather was based on her thoughtfully planned strategy to report the abuse at a time and in a way that would most protect her safety and that of her children.
REPRESENTATION
In re Lemarcus E., 934 N.Y.S.2d 553 (App. Div. 2011). In case where father appealed the order finding his son dependent, the decision on appeal had to be withheld until the child could be afforded meaningful assistance of counsel. Though child’s attorney on appeal received information from another attorney who had represented the child, fact that she had not met with the child was ineffective assistance of counsel.
SEXUAL ABUSE
In re Lebraun H., 975 N.Y.S.2d 524 (N.Y. App. Div. 2013). Family court erred in finding child’s custodial grandmother had neglected her where she had not taken action regarding child’s allegation that she was sexually abused by her eight-year-old cousin because it was not proven that the child was sexually abused. Grandmother could not be required to protect child conduct that did not cause actual harm.
In re Naomi P., 1 N.Y.S.3d 893 (N.Y. Fam. Ct. 2015). Respondent presented imminent and substantial risk to his stepdaughter, which supported adjudication of stepdaughter as abused child regardless of passage of time since last acknowledged act of sexual abuse or failure to prosecute respondent criminally. Stepfather admitted he engaged in sexual contact with stepdaughter during specific period beginning when she was nine years old. He never received treatment and risk of recidivism was extremely high.
In re Nyrie W., 974 N.Y.S.2d 70 (N.Y. App. Div. 2013). Family court properly found children dependent where one child reported her father raped her repeatedly and her statements were corroborated by siblings’ statements and medical evidence. The siblings were properly found derivatively neglected because the seriousness of the abuse showed such a lapse in parental judgment that they were at imminent risk. Children were also present at the home when some rapes occurred.
In re Shade B., 953 N.Y.S.2d 126 (N.Y. App. Div. 2012). Trial court properly found child dependent where she was four years old and had gonorrhea. Fact that such a young child had a sexually transmitted disease and had reported that her father had touched her privates, and parents did not rebut this information with another explanation, supported finding.
SIBLINGS
In re Kylani R., 941 N.Y.S.2d 46 (App. Div. 2012). Family court did not err in finding a substantial risk of harm to siblings where father was found to have sexually abused stepdaughter. Therefore, the court properly found that the unborn sibling was prospectively at risk.
SUBSTANCE ABUSE
In re Alexia J., 3 N.Y.S.3d 877 (N.Y. App. Div. 2015). Circumstances in neglect of two other children were sufficient to support finding of derivative neglect of one-year-old child, who was passenger in father’s vehicle when he drove while intoxicated. Evidence with respect to child found to be neglected demonstrates such impaired level of parental judgment as to create substantial risk of harm for any child in parent’s care. Child welfare agency presented evidence that father neglected other subject child, violated protection order, was convicted of aggravated driving while intoxicated, and demonstrated fundamental flaws in understanding of duties of parenthood.
In re Camarrie B., 966 N.Y.S.2d 415 (N.Y. App. Div. 2013). Trial court properly granted summary judgment motion for finding child neglected in case where child’s older siblings were currently in care and had been adjudicated 10 months earlier and where recent review hearings contained findings that mother admitted to using illegal drugs daily and had not entered drug treatment.
In re Jeffrey M., 959 N.Y.S.2d 59 (N.Y. App. Div. 2013). While mother lived in unsafe conditions herself and used illegal drugs, and where child occasionally visited her, trial court properly dismissed petition absent evidence that child was harmed physically or mentally from the visits or that he had been exposed to the drug use. FULL SUMMARY
In re Samaj B., 951 N.Y.S.2d 308 (App. Div. 2013). Trial court properly found child dependent based on mother’s abuse of a prescription medication used to treat opiate addiction. Fact that she used the drug without prescription, used it frequently, and engaged in prostitution to obtain money for the drug supported finding that her use put child at risk.
In re Stephen D., 44 N.Y.S.3d 714 (2016). In dependency proceeding against mother based on physical condition of newborn, who tested positive at birth for both cocaine and opiates, court directed child welfare agency to include provisions in final dispositional order directing mother to attend birth control counseling, see doctors about birth control and addiction, and take whatever steps she chose to prevent another pregnancy until child was safely out of foster care and back in her care. Mother had history of drug abuse and giving birth to drug-addicted infants.
In re Stevie R., 975 N.Y.S.2d 784 (N.Y. App. Div. 2013). Family court properly found child neglected based on father’s failure to protect him from mother’s substance abuse. Court was entitled to find father’s claim that he was not aware of her abuse incredible where he lived with her through the birth of two children born exposed to opiates and amphetamines and was arrested with mother and a known drug dealer for drug possession.
In re William N., Jr., 968 N.Y.S.2d 357 (N.Y. Fam. Ct. 2013). Where mother tested positive for marijuana during pregnancy, child tested negative at birth and had no difficulties that were attributed to drug use. Since no other allegations were made as to unsafe behavior by mother, child could not be adjudicated neglected. Evidence of drug misuse alone is insufficient for dependency finding.
SUMMARY JUDGMENT
In re Terrence G., 951 N.Y.S.2d 309 (App. Div. 2012). Trial court erred in granting agency’s motion for summary judgment based on mother’s prior termination where motion only contained termination petition, a psychological assessment, and had no indication of the outcome of the prior termination. Though trial court indicated it was familiar with the outcome of the prior proceeding, lack of record evidence provided an issue of triable fact, precluding summary judgment.
THIRD PARTIES
In re P.A., 2015 WL 2085480 (N.C. Ct. App.). After child was removed from mother’s care for neglect, court awarded guardianship of child to father’s former girlfriend at request of child welfare agency. Sufficient evidence did not support conclusion guardian had adequate resources to care appropriately for child. She provided support for child without additional support of child’s father for only eight interrupted months, lived in at least three addresses during her custody of child, and presented no evidence of her resources.
VISITATION
In re Bree W., 949 N.Y.S.2d 185 (N.Y. App. Div. 2012). Trial court abused its discretion in allowing daily hour-long unsupervised visits with mother before a full fact-finding hearing was conducted on allegations that three-month old had fractured ribs were parents where her sole caretakers.
In re Jacob P., 967 N.Y.S.2d 89 (N.Y. App. Div. 2013). While family court order of adjudication was based on sufficient evidence that child was derivatively neglected where his sibling suffered physical abuse, dispositional order was in error in not providing mother with visitation in that there were not extraordinary circumstances to show some type of visitation would harm the child’s well-being.
In re Natasha M., 941 N.Y.S.2d 687 (N.Y. App. Div. 2012). Trial court erred by not holding a full evidentiary hearing to determine whether good cause existed to modify the prior no-contact order and consider stepfather’s request for visitation where he previously was found to have had sexual contact with child.
In re Nicolette I., 974 N.Y.S.2d 144 (N.Y. App. Div. 2013). Family court erred in giving aunt sole discretion in determining visitation in dependency case. Parents are entitled to frequent and regular visitation unless it would harm the child. Under the circumstances, where the relationship with the parents and aunt was strained, delegating this authority to her was improper and required remand.
In re Ni-Na C., 2015 WL 7740388 (N.Y. App. Div.). Father appealed order finding he neglected his children and declining to award visitation. Record showed sound and substantial basis supporting decision to deny father visitation while further information was gathered from children’s therapist. Father denied wrongdoing and had angry demeanor at court. Trial court did not delegate authority to determine best interests of children to therapist but rather sought information from therapist.
VOLUNTARY PLACEMENTS
In re Lamarcus E., 942 N.Y.S.2d 647 (N.Y. App. Div. 2012). Trial court correctly found father had neglected child and that agency appropriately refused to enter a voluntary agreement where the father intended to leave the state without seven-year-old son without arranging for his care. Voluntary agreements are appropriate when parents are unable to care for their children. Father was able to care for child but was simply unwilling.
LIABILITY
NEGLIGENT SUPERVISION
Moore v. New York City, 926 N.Y.S.2d 76 (N.Y. App. Div. 2011). Where child’s father sued on her behalf after she spilled hot water on herself while in grandmother’s kinship home, claiming the agency did not adequately investigate or supervise the foster placement, trial court order denying summary judgment motion in favor of defendants was reversed because city did not have knowledge or notice of dangerous condition which led to child’s injuries; though parents had complained of a general lack of supervision in the home, this lacked specificity to adequately inform agency of the situation that led to her injury for liability purposes.
STATUS OFFENDERS
DUE PROCESS
People v. Liccione, 964 N.Y.S.2d 405 (N.Y. Just. Ct. 2013). City curfew ordinance was not invalid under state or federal constitutions for improperly intruding on youth’s freedom of movement. Ordinance related to important and specific governmental concerns over youth after hours vandalism. An exception allowed written parental consent for youth to exercise protected First Amendment activities.
TERMINATION OF PARENTAL RIGHTS
ABANDONMENT
In re Erving BB., 976 N.Y.S.2d 255 (N.Y. App. Div. 2013). Family court properly terminated mother’s parental rights on ground she failed to visit her child for six months. After mother placed child in care via a voluntary agreement, she had been able to visit or contact child as shown by evidence, she had employment and housing at least some of the time, and there was no evidence she was prevented or discouraged from having contact.
In re Jamal B., 945 N.Y.S.2d 472 (N.Y. App. Div. 2012). Family court properly terminated father’s parental rights on ground of abandonment where he visited only twice in a six-month period. Father’s lack of visitation was not adequately explained by his transportation issues since he was able to arrange transportation for other purposes. He also did not send letters or cards to his children.
In re Tashameeka Valerie P., 959 N.Y.S.2d 63 (N.Y. App. Div. 2013). Termination of parental rights was proper based on abandonment where mother, despite the agency’s concerns about sporadic visitation and failure to complete services, moved out of state before trial, and failed to maintain phone contact with her children.
In re Thailique Nashean S., 963 N.Y.S.2d 169 (N.Y. App. Div. 2013). Family court properly found father had abandoned child and terminated his parental rights. Father’s claim that he would have chance encounters where he would see the child were properly found to be mere token visits and there was no evidence the agency prevented or discouraged him from visiting.
AGGRAVATED CIRCUMSTANCES
In re Dashawn W., 970 N.Y.S.2d 474 (N.Y. 2013). Family court erred in finding aggravated circumstances did not exist where father beat child at least two times resulting in a broken clavicle and several broken ribs. Language in social services statute regarding ‘depraved indifference’ did not have same meaning as in penal code and conduct may be intentional or reckless.
In re Jayden Q.Q., 964 N.Y.S.2d 280 (N.Y. App. Div. 2013). Family court was not prohibited from making aggravated circumstances finding against father despite fact that dependency petition solely alleged maltreatment by mother. Nothing in the statute required a related petition against the individual. Further, father was notified of mother’s dependency petition and while being assisted with potential reunification, he was advised that a termination petition could be filed against him without a dependency petition.
APPEALS
In re Carmine A.B., 955 N.Y.S.2d 190 (N.Y. App. Div. 2012). In case where mother appeared by telephone at fact-finding hearing, but failed to appear during dispositional phase of termination trial, she could not appeal dispositional portions of order pursuant to state case law because judgment was rendered on default.
BEST INTERESTS
In re Bradley A., 947 N.Y.S.2d 842 (N.Y. App. Div. 2012). Record supported family court’s determination that termination was in youth’s best interests. Older youth reported he did not want his father, who was serving a lengthy sentence for abusing siblings, to have any involvement or information about him and as long as father had rights, he would receive reports and updates.
BEST INTERESTS
In re Merinda M., 39 N.Y.S. 3d 275 (2016). Termination of father’s parental rights was in best interests of child based on neglect finding. Father twice participated in program to teach nonoffenders risks of romantic involvement with sex offenders and how to protect children. Father acknowledged mother’s status as sex offender, failed to establish separate residence from mother, and allowed mother and her son, who was also sex offender, to have unsupervised contact with his other children.
CONTINUANCES
In re C.J.H., 2015 WL 1788719 (N.C. Ct. App.). Court granted mother’s petition to terminate father’s parental rights and he appealed. Father failed to show extraordinary circumstances to support granting of continuance when he agreed to take job in another state despite knowing job interfered with hearing date. He did not voluntarily provide financial support and failed to make good faith effort to visit child.
DEFAULT
In re Ilyas Zaire, 961 N.Y.S.2d 137 (N.Y. App. Div. 2013). Family court properly found mother in default and terminated her parental rights.Mother’s excuse that she was late due to being stopped by the police was uncorroborated and court’s finding that her excuse lacked credibility was supported by her previous default.
DILIGENT EFFORTS
In re Alexandra G., 2015 WL 9112767 (N.Y. App. Div.). Child welfare agency established that it made diligent efforts to encourage and strengthen relationship between mother and child. Agency referred mother to parenting skills training and drug treatment program, and scheduled regular supervised visitation. Termination would serve child’s best interests and facilitate child’s adoption by her foster mother, with whom she had lived since age two and who met all her needs.
DUE PROCESS
In re Eileen R., 912 N.Y.S.2d 350 (N.Y. App. Div. 2010). Since father’s assigned counsel did not fully participate in termination of parental rights proceedings and family court prevented father from testifying by phone, appointment of counsel was insufficient to protect father’s due process right to be present; father’s lawyer failed to object to court’s denial of request to participate by phone, deposition, or other means, and did not explore alternatives to prevent prejudice caused by father’s absence.
EXCLUSIONARY RULE
In re Giavanna M., 2015 WL 7268429 (N.Y. App. Div.). In appeal of termination of mother’s parental rights, application of exclusionary rule to prevent court from considering evidence of permanent neglect relating to condition of mother’s home would have harm fact-finding process. State’s interest in protecting welfare of children outweighs rule’s deterrent effect.
FAILURE TO IMPROVE
In re Chorus SS., 941 N.Y.S.2d 745 (App. Div. 2012). Family court properly terminated mother’s parental rights where she had failed to benefit from services including inpatient substance abuse treatment. Despite intensive treatment, mother could not remain clean as evidenced by her selling her car and using the proceeds to buy cocaine for daily use for a month.
In re Cory N., 976 N.Y.S.2d 248 (N.Y. App. Div. 2013). Family court properly terminated mother’s parental rights where children had been in care over two years and she had failed to show ability to provide safe home for them despite intensive services. Though she had participated in services and was no longer using drugs after two years, failure to secure a residence sufficient for the three children supported determination.
In re Jayden R., 2015 WL 9464968 (N.Y. App. Div.). Court found mother neglected older son by inflicting excessive corporal punishment on him and derivatively neglected younger son. Mother had history of hitting son with belt and causing bruises to his body, child welfare agency caseworker observed bruises, photographs depicted injuries, and mother admitted beating child with belt. Mother’s boyfriend also inflicted excessive corporal punishment and mother failed to protect son.
In re Jyashia RR., 938 N.Y.S.2d 645 (N.Y. App. Div. 2012). Trial court properly found father had failed to plan or provide for his children in termination hearing. Father did not follow through with recommended counseling, arrived late for visits, did not make himself available for additional visits when the agency recommended increasing visits beyond one hour a week, and did not attend school functions and meetings.
In re Natasha Denise B., 960 N.Y.S.2d 118 (N.Y. App. Div. 2013). Termination of mother’s rights was proper where she failed to obtain suitable housing or mental health treatment that would enable her to safely parent. Mother had received assistance from the agency completing applications and referrals for services. She further failed to contact agency or obtain medical treatment for children when injured on visits.
GRANDPARENTS
Weiss v. Weiss, 2016 WL 4099216 (N.Y. App. Div. 2016). Court must resolve maternal grandmother’s previously filed custody petition in dispositional hearing and determine best interests of child before freeing child for adoption in proceedings to terminate mother’s parental rights on grounds of mental illness and permanent neglect. Grandmother did not testify at fact-finding hearing or any permanency hearings related to termination proceedings against mother and was never afforded right to be heard.
GROUNDS
In re Tiosha J., 951 N.Y.S.2d 638 (N.Y. App. Div. 2012). Though father had completed some services as ordered, trial court properly concluded that his ability to safely parent children in the reasonably foreseeable future was compromised. Court considered father’s history of not cooperating with agency staff in entering his home, which was one of the reasons for court intervention, and the fact that over five years he had only been approved for supervised visitation.
INCAPACITY
In re Kristian–Isaiah William M., 972 N.Y.S.2d 227 (N.Y. App. Div. 2013). Trial court properly terminated mother’s parental rights where evidence showed mother had a schizoaffective disorder, had numerous psychiatric hospitalizations, abused drugs, and had anger management issues. Though mother was caring for two other children adequately, testimony from psychiatrist indicated mother was likely to regress with the addition of the subject child, supporting termination.
INCARCERATION
In re Charles K., 955 N.Y.S.2d 428 (N.Y. App. Div. 2012). Agency provided reasonable efforts for incarcerated father sufficient for termination by facilitating correspondence between him and his children, updating him on progress and exploring relatives for potential placement. Agency was not required to do more, including exploring possible placement with father’s homeless girlfriend, after relative home studies were rejected, nor was agency required to provide visitation in prison given testimony suggesting it would harm children.
INCARCERATION
In re Colby II, 2016 WL 3434568 (N.Y. App. Div.). Father appealed termination of his parental rights based on abandonment. Father failed to establish his incarceration or other claimed difficulties made contact with child or child welfare agency difficult during six-month period before filing of petition. He made no attempt to communicate with child during two months he was in jail, and agency did not discourage father’s contact with child during his incarceration.
In re James J., 948 N.Y.S.2d 203 (N.Y. App. Div. 2012). Trial court properly terminated parental rights of incarcerated father. Though agency failed to keep in contact with father while he was incarcerated, finding that state made reasonable efforts to reunify was supported by fact the visits were set up when father was released and only stopped due to father’s parole violation.
FAILURE TO IMPROVE
In re Shaqualle Khalif W., 947 N.Y.S.2d 116 (App. Div. 2012).
Family court properly terminated mother’s parental rights due to her unresolved substance abuse issues. Record showed that despite the agency attempting to help her resolve the primary and secondary problems by referring her to treatment and assisting with housing, the mother failed to complete treatment or visit her children consistently.
LEGAL REPRESENTATION
In re Nataylia C.B., 2017 WL 1822484 (N.Y. App. Div.). Incarcerated father who admitted to permanent neglect of child was not denied effective assistance of counsel in termination of parental rights proceeding. Father’s decision to admit to allegations of permanent neglect was matter of strategy, and counsel cannot be deemed ineffective merely because attorney counseled parent to admit allegations in petition to terminate parental rights.
MENTAL ILLNESS
In re Corey UU., 924 N.Y.S.2d 214 (App. Div. 2011). Clear and convincing evidence supported finding that mother would be unable to properly care for her child due to mental illness as required to terminate her parental rights; psychologist testified regarding mother’s schizophrenia and psychotic symptoms, including delusions and hallucinations, her inability to maintain stable relationships or a job, and the risk of violence she posed to her child, and caseworker described her inappropriate behavior during supervised visits with child.
In re Divinity I. H., 2015 WL 6703455 (N.Y. App. Div.). Clear and convincing evidence in termination of parental rights case supported finding that parents were unable, by reason of mental illness, to provide proper and adequate care for their children. Court-appointed psychologist testified that mother suffered from schizoaffective bipolar disorder. Another psychologist diagnosed father with paranoid schizophrenic mental illness and low mental functioning. Both psychologists believed children were at risk of neglect if returned to parents’ care.
NEGLECT
In re Milagros A.W., 2015 WL 2457849 (N.Y. App. Div.). Father did not place three-week-old baby in actual or imminent danger of impairment, as required for finding of neglect, when he forcibly took child out of stroller and away from mother after an argument and traveled with baby on public transportation to his home. Although father exhibited undesirable parental behavior, baby was not injured during event.
PERMANENCY GOAL
In re Desirea F., 2016 WL 416576 (N.Y. App. Div.). After mother’s termination of her parental rights was reversed, juvenile court changed permanency plan to adoption, and mother appealed again. Appellate court found that permanency hearing lacked form and substance and trial court failed to engage in any age-appropriate consultation with children regarding their preferences. No real efforts were made to further goal of return to parent, caseworker was unable to provide information regarding counseling for children, and no real inquiry was made into mother’s current situation or her willingness or ability to correct conditions that led to removal of children.
RELATIVES
In re Ender M.Z.-P., 973 N.Y.S.2d 221 (N.Y. App. Div. 2013). Family court erred in placing child with her uncle after parental rights were terminated where she had lived with foster parents since infancy and there had not been a full evaluation of the uncle or his home. While sibling connections would be fostered by placement in the uncle’s home, the fact that child had never lived with them and shared a strong lifelong bond to her foster parents did not support court’s determination.
REUNIFICATION
In re Fatoumata D., 954 N.Y.S.2d 31 (N.Y. App. Div. 2012). Notwithstanding the fact that parents did not object during the proceeding in the trial court, parents were not denied proper reunification services because services were provided only in English. That mother testified in English and father was able to discuss services with some clarification showed their language barrier was not significant enough to warrant remand.
SUBSTANCE ABUSE
In re Liarah H., 975 N.Y.S.2d 389 (N.Y. App. Div. 2013). Trial court properly concluded mother had a substance or mental health issue sufficient for dependency jurisdiction. Mother had recently been so intoxicated that she was hospitalized for a “alcohol induced mental disorder” and blacked out on another occasion. Further, regarding her claim that children had been safe since she sought babysitters when she was using substances, record showed the child was present some of the time she was intoxicated and one of the babysitters, her mother, had annual psychiatric hospitalizations.
SUSPENDED JUDGMENT
In re Carmen C., 944 N.Y.S.2d 214 (App. Div. 2012).
Family court properly terminated suspended disposition in termination case after mother was unsuccessfully discharged from her substance abuse treatment program. Court was not required to hold a separate dispositional hearing to enforce the suspended judgment where it had presided over the case for some time, was well acquainted with the issues in the case, and considered the children’s best interests in ending suspension.
In re Maximus K.B., 2015 WL 3756936 (N.Y. App. Div.). Preponderance of evidence supported determination that it was in best interests of children to terminate father’s parental rights and free them for adoption by their foster parents rather than issue suspended judgment. Father had permanently neglected children by failing to maintain contact with them or plan for their return during almost two-year period following their placement into foster care.
TIME IN CARE
In re Reid W., 7 N.Y.S.3d 497(N.Y. App. Div. 2015). Court properly found that mother permanently neglected children. Child welfare agency established by clear and convincing evidence that it made diligent efforts to encourage and strengthen her parental relationship and that mother failed for period of one year following child’s placement to develop realistic and feasible plan for child’s future. Court properly found that termination of mother’s parental rights, rather than entry of suspended judgment, was in children’s best interests.
VISITATION
STANDING
Brooke S.B. v. Elizabeth A. C.C., 2016 WL 4507780 (N.Y.).
The New York Supreme Court consolidated two cases in which nonbiological, nonadoptive partners lived, planned to conceive a child, and shared parental responsibilities raising that child with the biological parent. The court granted nonbiological, nonadoptive partners standing to seek custody and visitation if they prove they agreed with the biological parent to conceive and raise the child as co-parents. FULL SUMMARY