February 2016 – 4th Department Family Court Case Notes

Published on February 22, 2016 5:21 pm by Linda Gehron in News


Change of Circumstances


Ladd v. Krupp, 2016 NY Slip Opinion _____ [4th Dept 2/11/16]

The father’s concerted effort to interfere with the mother’s contact with the child resulted in a finding of a change of circumstances and an award of custody to the mother. The record established that the mother had attempted to foster a relationship between the father and the child, while the father “blatantly and repeatedly” violated the court’s directive not to discuss the
litigation with the child; repeatedly told the child that the mother was irresponsible and unintelligent; and limited the mother’s access to the child or placed absurd restrictions on her access.


Excessive Corporal Punishment

Matter of DeJesus v Gonzalez, 2016 NY Slip Op 01059 [4th Dept 2/11/16]

The trial court erred in determining that the mother failed to establish a sufficient change incircumstances to warrant an inquiry into the best interests of the children where the record established that the father asked the mother to pick up the parties’ three-year-old daughter from his residence in Pennsylvania because he was unable to handle heralleged misbehavior; the child was discovered to have extensive bruising andscrapes on her knees; the daughter disclosed to the CPS investigator that the father had struck her with a belt and that she sustained the scrapes on her knees from kneeling on a “cat scratcher” as a form of punishment.; the son corroborated the daughter’s account of the corporal punishment; the father admitted that he once spanked the daughter with a belt and made her kneel on the “cat scratcher”; and the records of the daughter’s medical examination documented that she had “multiple bruises all over her body in different stages of healing. On review the Court concluded that the father had repeatedly inflicted excessive corporal punishment upon the daughter which supported a finding of a change of circumstances and an award of sole custody of the children to the mother in their best interests.


Conditions Upon Parent’s Right to File For a Modification

Matter of Waite v Clancy, 2016 NY Slip Op 00793 [2/5/16]

The Court modified the Family Court’s order that awarded the father sole custody and suspended the mother’s visitation “until she engages successfully in mental health and drug and alcohol evaluations, and . . . recommended treatment, and upon successful completion of [the] same. While the trial court’s determination to suspend the mother’s visitation was supported by evidence that such was detrimental to the child’s welfare, the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and
alcohol evaluations and compliance with all treatment recommendations.




No Hearing Required When Insufficient Evidentiary Showing

Matter of Fowler v VanGee, 2016 NY Slip Op 00832 [2/5/16]

A hearing is not required whenever a parent seeks modification of a prior order. When a parent fails to make a sufficient evidentiary showing of a change in circumstances, no hearing is required.




“Alienation” A Basis For Neglect Adjudication

Matter of Isobella A. (Anna W.) 2016 NY Slip Op 00831 [4th Dept 2/5/16]
The evidence established that the mother alienated the children from their fathers. She also interfered with the fathers’ visitation and made false allegations against them or their significant others. As a result of the mother’s conduct, Isobella was confused about who was her real father; was diagnosed with an adjustment disorder; and had poor behavior in school. The evidence also proved that the mother forced Cameron to lie about Joseph and taped him stating those lies. The Court approved a determination that the mother’s conduct impaired the children’s emotional condition or placed them in imminent danger of such impairment under Family Ct Act § 1012 [f] [i] [B].


Appeal and Motion to Vacate

Matter of Annabella B.C. 2016 NY Slip Opinion 01064 [4th Dept 2/11/16]

It was error for the Family Court to deny the mother’s motion to vacate her admission to neglect on consent on the sole basis that an appeal of the consent finding was pending.



Derivative Neglect

The Family Court determined that the Respondents neglected Bentley P.S., a
sibling of the subject children, but declined to make a finding of derivative neglect as to the other subject children, because it was unclear whether these children were nearby when the neglect occurred. The Court affirmed , stating that while FCA § 1046 (a) (i) permits evidence of neglect of one subject child to be considered in determining whether other subject children were neglected, the statute does not mandate a finding of derivative neglect without more.



Psychological Reports

Matter of Isobella A. (Anna W.) 2016 NY Slip Op 00831 [4th Dept 2/5/16]
The mother’s contention that the court erred in admitting the reports and testimony of a psychologist was not preserved for appellate review.



Willful Violation Did Not Preclude a Hearing on a Petition For Downward Modification

Mandile v Deshotel  2016 NY Slip Op _____ [4th Dept 2/11/16]
The Court reinstated so much of the Respondent’s Objections to the Magistrate’s finding of a willful violation of a support order and implicit denial of her petition to modify the order. The Court determined a finding of a willful violation of a support order is not always incompatible with a meritorious petition for a downward modification of a support order.




No Basis For Recusal

Inadequate Record To Review Determination of No Diligent Efforts Requirement

Matter of Christopher D.S.  2016 NY Slip Op 00792 [4th Dept 2/5/16]

When there was no allegation that recusal is statutorily required, the matter of recusal is within the discretion and personal conscience of the jurist whose recusal is sought. The fact that the same judge presided over the criminal prosecution is not a statutory basis for recusal in the related Article Ten proceeding.

The Court could not review the trial court’s determination that the agency did not have to make diligent efforts to reunite parent and child given that the record on appeal did not include the evidence on which the court below relied.



Stipulation For Judicial Notice of Prior TPR Proceedings Served As Basis For TPR

Matter of Brayden R. 2016 NY Slip Op 00833 [2/5/16]

The agency established that nothing concerning the father’s mental health
had changed since a previous order terminating his parental rights with respect to another child was made on the ground of mental, and the father agreed that the court could take judicial
notice of those past proceedings. Upon this proof, the petitioner met its burden, demonstrating by clear and convincing evidence that the father is ‘presently and for the foreseeable future unable by reason of mental illness to provide proper and adequate care for the child.