Petitioner Claims State Action Unlawful Regarding Public Assistance Benefits

February 10, 2016,

A New York Family Lawyer said that on early December 1971, JR was the grantee of public assistance for the benefit of her four children in the Aid to Families with Dependent Children (AFDC) category. All five lived in a home in Levittown, New York, which was then owned by Mrs. JR and her former husband as tenants in common.

On December 21, 1971, Mr. JR sold his interest in the home to Mrs. JR's parents for $9,700. Representatives of the Nassau County Department of Social Services, present at the sale, took $2,600 of the proceeds to satisfy a debt for prior public assistance issued to the family. Mrs. JR then, as part of the whole transaction, conveyed her own one-half interest in the home to her parents for no proven consideration, and she continued to live in the home with the children.
On January 15, 1972, the Nassau County Department of Social Services discontinued AFDC assistance arguing that Mrs. JR violated Social Services Law and Regulations by transferring a valuable asset without consideration. That determination was affirmed by the New York State Department of Social Services in a decision after a hearing dated April 25, 1972.
A. No Transfer to Appellate Division

A New York Divorce Lawyer said on bringing this Article 78 proceeding, Mrs. JR challenges these determinations only under CPLR 7803(3), on the grounds that they are arbitrary, capricious and erroneous as a matter of law. The State Commissioner's verified answer, however, dwells on CPLR 7803(4), asserts that there was substantial evidence on the record to support his decision and requests transfer of the proceeding to the Appellate Division pursuant to CPLR 7804(g).

A Brooklyn Family Lawyer said the grounds specified in Section 7803(3) and (4) are separate and distinct bases for relief. Under CPLR 7803(3) the review grounds are error of law, arbitrariness or abuse of discretion. Under CPLR 7803(4), the review goes to whether factual determinations are supported by substantial evidence. Even where a determination of fact is based upon 'substantial evidence' on the record, the administrative result can still be challenged as erroneous as a matter of law.

A Bronx Family Lawyer said in any event, the petition here omits any reference to the grounds specified in CPLR 7803(4), and in so doing, waives those grounds insofar as this proceeding is concerned. The basis for transfer is found in the petition itself and the State's reply may not alter or amplify the particular grounds raised in the application or introduce an affirmative claim not made by the petitioner. No 'substantial evidence' issue being presented in the petition, there is no basis for transfer. See, Matter of Joyce v. Bruckman, 257 App.Div. 795, 796, 15 N.Y.S.2d 679, 680, rearg. den., 258 App.Div. 938, 17 N.Y.S.2d 620, mot. for [71 Misc.2d 759] lv. to app. den., 259 App.Div. 791, 18 N.Y.S.2d 1013, appeal dismissed, 284 N.Y. 736, 31 N.E.2d 203, app. den., 261 App.Div. 883, 26 N.Y.S.2d 489; Matter of Banks v. Wyman, 63 Misc.2d 946, 947, 313 N.Y.S.2d 566, 567, affd. 39 A.D.2d 215, 333 N.Y.S.2d 517.

B. The State's Action is Unlawful

The issue remains whether Mrs. JR's transfer of her one-half interest in the home to the parents is a valid basis for discontinuing the AFDC assistance to the family. The State Commissioner upheld the discontinuance on the grounds that Mrs. JR's transfer violated Social Services Law § 360 and 18 NYCRR 352.23.

1. Needy Dependent Children Cannot be Cut Off Because of Parent's Misconduct
The State made no finding as to the validity under Federal law of the assistance cutoff, although it has an express statutory obligation to determine and establish the standards of need for determining eligibility of persons for 'public assistance pursuant to the provisions of the Social Services Law and Applicable federal requirements.' Social Services Law § 131(3).
It is now well established that the AFDC program in New York, while administered by local Social Services officials under the supervision of the State Agency, receives up to 75 per cent federal reimbursement and is controlled by federal requirements under the Social Security Act, 42 U.S.C. § 601 et seq.; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561; Young v. Shuart, 67 Misc.2d 689, 695, 325 N.Y.S.2d 113, 120, affd. 39 A.D.2d 724, 331 N.Y.S.2d 962. As the New York State Legislature stated in Section 1 of Chapter 517, Laws 1970: 'The legislature hereby declares its intent to make provision for the state to meet all necessary federal requirements under the social security act.’

It is the intent of the legislature that the department of social services shall determine and establish the standards of need for public assistance in this state in conformity with federal requirements and shall make provision for payments to and on behalf of eligible needy persons in accordance with schedules and other requirements established and determined by the legislature'.

Perhaps the foremost principle of the federal AFDC program is that needy children must not be left without assistance to suffer the deprivation of basic essentials of life. Under federal standards, eligibility of a family with dependent children for public assistance must be based upon only two criteria, need and dependency. 42 U.S.C. § 606(a) et seq.; 45 CFR Part 233; King v. Smith, Supra; Doe v. Swank, 332 F.Supp. 61, 63 (N.D.E.D.Ill.1971), affd. sub nom. Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539; Doe v. Shapiro, 302 F.Supp. 761, 764 (D.C.Conn.1969), appeal dismissed, 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677; Holloway v. Parham, 340 F.Supp. 336, 342 (N.D.Ga.1972).

A corollary of that principle is that, irrespective of the agency's disapproval of a parent's actions, the needs of the children must be met. Assistance to the children, representing the 'bare essentials of life', Rothstein v. Wyman, 303 F.Supp. 339, 351 (S.D.N.Y.1969), revd. on other grounds, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218, may not be stopped because of claimed parental misconduct. The discontinuance of assistance to the children in response to a disapproved action taken by the custodial parent ignores the continuing need of the children which under well-established federal standards must be the first and foremost goal of AFDC.
The very wording of the Regulation 18 NYCRR 369.3 for determining grants and payment stresses the child primacy. Not only is the parent a grantee 'for the benefit of a child', but the parent herself is designated as a 'dependent' relative.

The Appellate Division, Second Department, recently recognized this governing principle in an analogous case, Payne v. Sugarman, 39 A.D.2d 720, 331 N.Y.S.2d 813, statutory stay vacated 30 N.Y.2d 954, 335 N.Y.S.2d 704, 287 N.E.2d 393. The Second Department unanimously disapproved discontinuance of AFDC assistance where the grounds were that the parent refused to execute a bond and mortgage on real property to secure the debt for assistance provided. It wrote:

'In our opinion, the intent of Congress, in its adoption of sections 601 Et seq. of title 42 of the United States Code, which set forth the requirements of need and dependency for the Aid to Dependent Children grant which petitioner's children were receiving, was to secure such grants for eligible children, notwithstanding a refusal of the parent to comply with a local agency's demands under section 360 of the Social Services Law'.

A refusal to give a deed to social services officials, as in Payne, and a transfer of an interest in real property, as here, both rank as impermissible bars to eligibility. Neither requirement relates to need or dependency. Both are designed solely to facilitate the repayment of public assistance grants which, however laudable a goal, may not justify a result which violates the paramount goal of providing for needy dependent children. Conditioning AFDC assistance upon continued parental ownership of real property, or upon securing return of the property transferred, is an invalid eligibility requirement under applicable federal standards.

2. Inapplicability of Governmental Arguments

The State's reliance upon Social Services Law § 360 is misplaced. That statute, entitled 'Real property of legally responsible relatives; deeds and mortgages may be required' permits a family receiving assistance to own real property. Subdivision 1 provides that ownership of real property by a recipient of public assistance shall not preclude the granting of aid to dependent children.

Subdivision 1 of section 360 also provides that a '. . . public welfare official may, however, require, as a condition to the granting of aid or the continuance thereof, that he be given a deed of or a mortgage on such property . . .'. See, Snell v. Wyman, 281 F.Supp. 853 (S.D.N.Y.1968), affd. 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511. However, no official request or requirement for a deed preceded the discontinuance of the aid here.

The State relies on 18 NYCRR 352.23 which provides in pertinent part: 'Utilization of resources--general policy. (a) Resources shall be so utilized as to eliminate or reduce the need for public assistance, rehabilitate the client and conserve public funds through assignment and recovery. Applicants and recipients shall generally be required to utilize available resources and to apply for and otherwise pursue potentially available resources'.

In one sense, the 'resource' here is still being 'utilized' to meet the needs of Mrs. JR and her four children whose continued residence in the home may not be jeopardized by the transfer of title to the maternal grandparents. However, it appears to this Court that Mrs. JR did technically violate 18 NYCRR 352.23 as to her own interest by placing the real property beyond the Social Services Department's ultimate reach, assuming eventually that the local agency is to pursue enforcement or reimbursement.

But, having said all this, the Court comes back to the fundamental point, made earlier, that the needy children cannot be cut off because of the mother's conduct. Remedial action for claimed parental misconduct is an enforcement matter between the government and the parent and not the case at hand.

3. The County's Prior Opportunity

The County Social Services Department's position here is unfortunately anomalous, and doubtless from good motives. The [71 Misc.2d 762] County was aware of the whole home transaction. In fact, the County participated in the closing and recouped $2,600 from the father's property transfer to the maternal grandparents of the dependent children. Yet, now it seeks to use this same transaction as a basis for discontinuing aid. The County elected not to take a deed on the property as Social Services Law § 360 clearly permits and may not now, as an alternative, discontinue aid to compensate for the lost asset.

Accordingly, the Court holds that the discontinuance of Mrs. JR's AFDC grant was in violation of federal statutory authority, 42 U.S.C. § 601 et seq.; Social Services Law § 131(3), and was therefore erroneous as a matter of law. Respondents' determinations are annulled and petitioner's assistance is reinstated retroactively to January 15, 1972.

The Nassau County Family Lawyers together with the Nassau County Order of Protection Attorneys at Stephen Bilkis and Associates are experienced and competent in the field of family law, proceedings and jurisprudence. Visit their offices located around New York City for free legal consultation.

Petitioner Was Grantee of Public Assistance for Four Childen

February 9, 2016,

A New York Family Lawyer said in early December 1971, JR was the grantee of public assistance for the benefit of her four children in the Aid to Families with Dependent Children (AFDC) category. All five lived in a home in Levittown, New York, which was then owned by Mrs. JR and her former husband as tenants in common.

On December 21, 1971, Mr. JR sold his interest in the home to Mrs. JR's parents for $9,700. Representatives of the Nassau County Department of Social Services, present at the sale, took $2,600 of the proceeds to satisfy a debt for prior public assistance issued to the family. Mrs. JR then, as part of the whole transaction, conveyed her own one-half interest in the home to her parents for no proven consideration, and she continued to live in the home with the children.
On January 15, 1972, the Nassau County Department of Social Services discontinued AFDC assistance arguing that Mrs. JR violated Social Services Law and Regulations by transferring a valuable asset without consideration. That determination was affirmed by the New York State Department of Social Services in a decision after a hearing dated April 25, 1972.

A. No Transfer to Appellate Division

A New York Divorce Lawyer said that in bringing this Article 78 proceeding, Mrs. JR challenges these determinations only under CPLR 7803(3), on the grounds that they are arbitrary, capricious and erroneous as a matter of law. The State Commissioner's verified answer, however, dwells on CPLR 7803(4), asserts that there was substantial evidence on the record to support his decision and requests transfer of the proceeding to the Appellate Division pursuant to CPLR 7804(g).

A Manhattan Family Lawyer said the grounds specified in Section 7803(3) and (4) are separate and distinct bases for relief. Under CPLR 7803(3) the review grounds are error of law, arbitrariness or abuse of discretion. Under CPLR 7803(4), the review goes to whether factual determinations are supported by substantial evidence. Even where a determination of fact is based upon 'substantial evidence' on the record, the administrative result can still be challenged as erroneous as a matter of law.

A New York City Family Lawyer said in any event, the petition here omits any reference to the grounds specified in CPLR 7803(4), and in so doing, waives those grounds insofar as this proceeding is concerned. The basis for transfer is found in the petition itself and the State's reply may not alter or amplify the particular grounds raised in the application or introduce an affirmative claim not made by the petitioner. No 'substantial evidence' issue being presented in the petition, there is no basis for transfer. See, Matter of Joyce v. Bruckman, 257 App.Div. 795, 796, 15 N.Y.S.2d 679, 680, rearg. den., 258 App.Div. 938, 17 N.Y.S.2d 620, mot. for [71 Misc.2d 759] lv. to app. den., 259 App.Div. 791, 18 N.Y.S.2d 1013, appeal dismissed, 284 N.Y. 736, 31 N.E.2d 203, app. den., 261 App.Div. 883, 26 N.Y.S.2d 489; Matter of Banks v. Wyman, 63 Misc.2d 946, 947, 313 N.Y.S.2d 566, 567, affd. 39 A.D.2d 215, 333 N.Y.S.2d 517.

B. The State's Action is Unlawful

The issue remains whether Mrs. JR's transfer of her one-half interest in the home to the parents is a valid basis for discontinuing the AFDC assistance to the family. The State Commissioner upheld the discontinuance on the grounds that Mrs. JR's transfer violated Social Services Law § 360 and 18 NYCRR 352.23.

1. Needy Dependent Children Cannot be Cut Off Because of Parent's Misconduct

The State made no finding as to the validity under Federal law of the assistance cutoff, although it has an express statutory obligation to determine and establish the standards of need for determining eligibility of persons for 'public assistance pursuant to the provisions of the Social Services Law and Applicable federal requirements.' Social Services Law § 131(3).
It is now well established that the AFDC program in New York, while administered by local Social Services officials under the supervision of the State Agency, receives up to 75 per cent federal reimbursement and is controlled by federal requirements under the Social Security Act, 42 U.S.C. § 601 et seq.; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561; Young v. Shuart, 67 Misc.2d 689, 695, 325 N.Y.S.2d 113, 120, affd. 39 A.D.2d 724, 331 N.Y.S.2d 962. As the New York State Legislature stated in Section 1 of Chapter 517, Laws 1970: 'The legislature hereby declares its intent to make provision for the state to meet all necessary federal requirements under the social security act.’

It is the intent of the legislature that the department of social services shall determine and establish the standards of need for public assistance in this state in conformity with federal requirements and shall make provision for payments to and on behalf of eligible needy persons in accordance with schedules and other requirements established and determined by the legislature'.

Perhaps the foremost principle of the federal AFDC program is that needy children must not be left without assistance to suffer the deprivation of basic essentials of life. Under federal standards, eligibility of a family with dependent children for public assistance must be based upon only two criteria, need and dependency. 42 U.S.C. § 606(a) et seq.; 45 CFR Part 233; King v. Smith, Supra; Doe v. Swank, 332 F.Supp. 61, 63 (N.D.E.D.Ill.1971), affd. sub nom. Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539; Doe v. Shapiro, 302 F.Supp. 761, 764 (D.C.Conn.1969), appeal dismissed, 396 U.S. 488, 90 S.Ct. 641, 24 L.Ed.2d 677; Holloway v. Parham, 340 F.Supp. 336, 342 (N.D.Ga.1972).

A corollary of that principle is that, irrespective of the agency's disapproval of a parent's actions, the needs of the children must be met. Assistance to the children, representing the 'bare essentials of life', Rothstein v. Wyman, 303 F.Supp. 339, 351 (S.D.N.Y.1969), revd. on other grounds, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218, may not be stopped because of claimed parental misconduct. The discontinuance of assistance to the children in response to a disapproved action taken by the custodial parent ignores the continuing need of the children which under well-established federal standards must be the first and foremost goal of AFDC.
The very wording of the Regulation 18 NYCRR 369.3 for determining grants and payment stresses the child primacy. Not only is the parent a grantee 'for the benefit of a child', but the parent herself is designated as a 'dependent' relative.

The Appellate Division, Second Department, recently recognized this governing principle in an analogous case, Payne v. Sugarman, 39 A.D.2d 720, 331 N.Y.S.2d 813, statutory stay vacated 30 N.Y.2d 954, 335 N.Y.S.2d 704, 287 N.E.2d 393. The Second Department unanimously disapproved discontinuance of AFDC assistance where the grounds were that the parent refused to execute a bond and mortgage on real property to secure the debt for assistance provided. It wrote:

'In our opinion, the intent of Congress, in its adoption of sections 601 Et seq. of title 42 of the United States Code, which set forth the requirements of need and dependency for the Aid to Dependent Children grant which petitioner's children were receiving, was to secure such grants for eligible children, notwithstanding a refusal of the parent to comply with a local agency's demands under section 360 of the Social Services Law'.

A refusal to give a deed to social services officials, as in Payne, and a transfer of an interest in real property, as here, both rank as impermissible bars to eligibility. Neither requirement relates to need or dependency. Both are designed solely to facilitate the repayment of public assistance grants which, however laudable a goal, may not justify a result which violates the paramount goal of providing for needy dependent children. Conditioning AFDC assistance upon continued parental ownership of real property, or upon securing return of the property transferred, is an invalid eligibility requirement under applicable federal standards.

2. Inapplicability of Governmental Arguments

The State's reliance upon Social Services Law § 360 is misplaced. That statute, entitled 'Real property of legally responsible relatives; deeds and mortgages may be required' permits a family receiving assistance to own real property. Subdivision 1 provides that ownership of real property by a recipient of public assistance shall not preclude the granting of aid to dependent children.

Subdivision 1 of section 360 also provides that a '. . . public welfare official may, however, require, as a condition to the granting of aid or the continuance thereof, that he be given a deed of or a mortgage on such property . . .'. See, Snell v. Wyman, 281 F.Supp. 853 (S.D.N.Y.1968), affd. 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511. However, no official request or requirement for a deed preceded the discontinuance of the aid here.

The State relies on 18 NYCRR 352.23 which provides in pertinent part: 'Utilization of resources--general policy. (a) Resources shall be so utilized as to eliminate or reduce the need for public assistance, rehabilitate the client and conserve public funds through assignment and recovery. Applicants and recipients shall generally be required to utilize available resources and to apply for and otherwise pursue potentially available resources'.

In one sense, the 'resource' here is still being 'utilized' to meet the needs of Mrs. JR and her four children whose continued residence in the home may not be jeopardized by the transfer of title to the maternal grandparents. However, it appears to this Court that Mrs. JR did technically violate 18 NYCRR 352.23 as to her own interest by placing the real property beyond the Social Services Department's ultimate reach, assuming eventually that the local agency is to pursue enforcement or reimbursement.

But, having said all this, the Court comes back to the fundamental point, made earlier, that the needy children cannot be cut off because of the mother's conduct. Remedial action for claimed parental misconduct is an enforcement matter between the government and the parent and not the case at hand.

3. The County's Prior Opportunity

The County Social Services Department's position here is unfortunately anomalous, and doubtless from good motives. The [71 Misc.2d 762] County was aware of the whole home transaction. In fact, the County participated in the closing and recouped $2,600 from the father's property transfer to the maternal grandparents of the dependent children. Yet, now it seeks to use this same transaction as a basis for discontinuing aid. The County elected not to take a deed on the property as Social Services Law § 360 clearly permits and may not now, as an alternative, discontinue aid to compensate for the lost asset.

Accordingly, the Court holds that the discontinuance of Mrs. JR's AFDC grant was in violation of federal statutory authority, 42 U.S.C. § 601 et seq.; Social Services Law § 131(3), and was therefore erroneous as a matter of law. Respondents' determinations are annulled and petitioner's assistance is reinstated retroactively to January 15, 1972.

The Nassau County Family Lawyers together with the Nassau County Order of Protection Attorneys at Stephen Bilkis and Associates are experienced and competent in the field of family law, proceedings and jurisprudence. Visit their offices located around New York City for free legal consultation.

Stepdaughter Files Claim for Aggravated Harrassment

February 7, 2016,

A New York Family Lawyer said the information dated March 28, 1968, charges the crime of Aggravated Harassment in violation of section 240.30, subdivision 2 of the Penal Law. The complaint is made and sworn to by ERG, who is defendant's step-daughter.

Pursuant to the information, a summons for purposes of investigation was issued and served by mail. Defendant has appeared specially by her attorney and makes the within motion to vacate the summons upon the grounds that any controversy between the complainant and her father's wife is exclusively in the jurisdiction of the Family Court and the District Court is without any jurisdiction in this matter.

A New York Divorce Lawyer said article 6, section 13, subdivision b of the New York State Constitution in establishing the Family Court, invested that Court with jurisdiction over 'crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household.'

Section 812 of the Family Court Act provides that the Family court 'has exclusive original jurisdiction over any proceeding concerning acts which would constitute disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household,' and that, "disorderly conduct' includes disorderly conduct not in a public place.'

The preliminary question to be answered, is whether, for the purposes of Family Court jurisdiction, the complainant and defendant are members of the same family.

A Westchester County Family Lawyer said it' has been defined as 'a group of persons consisting of parents and their children' (Funk & Wagnalls Standard Dictionary), 'father, mother and their children' (Thorndike Barnhardt Dictionary), and 'A group comprising immediate kindred; (especially) the group formed of parents and children, constituting the fundamental social unit in a civilized society.' (Webster's New International Dictionary, 2d Ed.)
In People v. Dugar, 37 Misc.2d 652, 654, 235 N.Y.S.2d 152, 153, Nassau District Court, 1962, the Court stated as follows:

'A Suffolk County Family Lawyer said the terms 'family' and 'household' are not defined in the statute. Their meaning must therefore be determined by reference to general usage, decisions construing those terms in other statutes, and the broad remedial purpose of the statute as a whole.'

With respect to the 'broad remedial purpose of the statute', Article 8, section 811, of the Family Court Act declares that the Family Court is better equipped to deal with family offenses, since the persons involved are asking for practical help rather than criminal conviction and punishment.

The complainant here is a step-child of the defendant, and the controversy appears to have arisen from the marital relationship existing between the defendant and the complainant's father.

In People v. Keller, 37 Misc.2d 122, 123, 234 N.Y.S.2d 469, 470, Nassau District Court, 1962, the Court held that the Family Court rather than the District Court had jurisdiction of the prosecution of the defendant for misdemeanor assault on his mother-in-law, on the ground that she was a member of [57 Misc.2d 61] his 'family', although the mother-in-law did not live in the same household as the defendant, but the assault on the mother-in-law arose out of the marital relationship between the defendant and the daughter of the mother-in-law. The Court said:
'A dominant purpose of the Family Court Act was to get all of the problems of a family in one forum. Fragmentation was found to be a serious handicap in treating such problems.’

With respect to the People's contention that the Family Court has no jurisdiction over the crime of Aggravated Harassment, it is without merit. In People v. Johnson, 20 N.Y.2d 220, 226, 282 N.Y.S.2d 481, 486, 229 N.E.2d 180, 184, Chief Judge Fuld said:

In short, then, the Family Court has jurisdiction to deal, in the first instance, with family offenses, including any complaint of assault, felonious of simple, between spouses or between parent and child or between members of the same family. Plainly expressing its design that the Family Court have priority of examination into family offenses, the Legislature has provided a procedure both for enforcement of that priority and for surrender of the court's jurisdiction where appropriate.

Section 813 of the Family Court Act provides as follows:

'(a) Any criminal complaint charging disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household shall be transferred by the criminal court not more than three days from the time the complaint was made to the family court in the county in which the criminal court is located.

At the time the information was signed and the summons was issued there was no way in determining that there was any family relationship between the complainant and the defendant. Hence, the summons which was issued thereon was valid and will not be vacated or voided. It was only on the return day of the summons that the Court was apprised of the fact that there existed a family relationship between the parties and that the matter then should be transferred to the Family Court.

The hostility between the step-daughter and her step-mother, may result from difficulties between the complainant's father and his wife, and the Family Court in the first instance should be permitted to explore the entire family problem and leave the Court free to transfer the instant complaint back to the District Court Pursuant to section 816 of the Family Court Act, if such procedure seems more appropriate to the discretion of the Family Court.

This matter is therefore transferred to the Family Court for all further proceedings.

If you know someone in a similar situation above, contact Stephen Bilkis and Associates. The Nassau County Family Lawyers works hand in hand with Nassau County Divorce Attorneys in handling legal disputes involving family related cases such as, divorce, child custody, child/spousal support, guardianship, visitation, paternity, domestic violence and others. Visit our offices located around New York Metropolitan, including Corona for free legal consultation.

Court Looks at Material Issues of Fact in Case

February 7, 2016,

A New York Family Lawyer said in this contested probate proceeding, the proponent, MP, moves for an order granting summary judgment pursuant to CPLR 3212, dismissing the objections filed by the objectant, RP, and admitting the propounded instrument to probate. RP opposes the motion on the ground that material issues of fact exist.

RP cross-moves for an order: (1) pursuant to SCPA 205, dismissing the probate proceeding on the ground that the decedent was not a domiciliary of Nassau County at the time of his death; (2) pursuant to Article 45 of the CPLR, prohibiting MP from introducing into evidence certain DVDs that MP alleges to be recordings of the decedent; and (3) pursuant to CPLR 4519, prohibiting MP and EP, who is the decedent's ex-wife and the mother of MP and RP, from testifying at trial as to any statements allegedly made by the decedent. MP opposes the relief requested by RP.

The decedent, SP, died on June 27, 2005, survived by his wife, BP, and two sons from a former marriage, RP and MP.

A New York Divorce Lawyer said that SP and BP lived together in Florida from 1980 until July 16, 2003. There is evidence in the record that SP left BP, although there is no evidence of a legal separation or divorce decree.

On June 21, 2003, prior to his departure from Florida, SP executed a will prepared by his attorney in Florida. The will names RP as the executor and primary beneficiary and specifically makes no provision for MP. After leaving Florida, SP was placed by RP in The Mews, an assisted living facility in Greenwich, Connecticut. RP went on a family vacation two days later, on August 19, 2003.

A Nassau County Family Lawyer said that on August 21, 2003, SP executed a Power of Attorney granting power of attorney to MP. On August 29, 2003, when he was ninety-one years old, SP executed the propounded will,1 prepared by an attorney MP obtained for SP. MP also moved SP out of The Mews and into the Nautilus Hotel which is in Nassau County, where he lived until his death in 2005. This later will names MP as the executor and primary beneficiary and specifically makes no provision for RP. RP objects to the probate of the August 29, 2003 will on the grounds that SP lacked testamentary capacity and that the will is the result of fraud and undue influence by MP and others acting in concert with him.

A Staten Island Family Lawyer said that RP's contention that SP was not a domiciliary of Nassau County at the time of his death is advanced for the first time in RP's cross-motion made more than a year after RP filed objections to the probate of the propounded instrument. The court notes that RP's own petition for the probate of the June 21, 2003 instrument that favors him identifies the decedent as a domiciliary of Nassau County. That petition was verified by RP on July 18, 2005; it has not been corrected or withdrawn.

Nevertheless, RP advances a number of arguments in support of his contention that SP never effectuated a change of domicile from Florida, where he had lived for thirty-seven years with his second wife, BP, until he left her and went first to Connecticut and then to New York. RP alleges the following: (1) BP continued to reside in Florida in the residence where she and SP has resided together; (2) SP's treating physician told RP that, a few months after SP arrived at The Nautilus Hotel, he said he wanted to return to BP; (3) the propounded instrument, executed on August 29, 2003, states that SP is of the County of Miami-Dade, State of Florida, temporarily residing at The Mews, ½ Bolling Place, Greenwich, Connecticut; (4) the attorney-draftsman of that instrument testified at his deposition that he drafted it that way because he was told that [SP] was domiciled in Florida; (5) SP did not file tax returns in New York; and (6) SP lacked the mental capacity to effectuate a change in domicile.

In order to effectuate a change in domicile, there must be a union of residence in fact and an absolute and fixed intention to abandon the former and make the new locality a fixed and permanent home. A change in residence is insufficient. The party alleging a change in domicile has the burden to prove the change by clear and convincing evidence. In order to meet this burden, MP must show the decedent's intention to effect a change of domicile from his acts, statements and conduct.

The record does not contain the usual evidence of an intent to change domicile. Since SP was in his nineties and legally blind by the time he left Florida in 2003, it is not surprising that he did not attempt to obtain a New York driver's license. However, there is no evidence that SP changed his voter registration to New York or that he filed New York State tax returns. SP did establish a joint bank account with MP at a bank in Harrison, New York, and he commenced an action against RP in New York State, Supreme Court, wherein SP alleges his residence to be Nassau County.

There is no evidence in the record to support MP's contention that SP was not mentally capable in September 2003 of changing his domicile to New York. However, MP has not met his burden of proving, by clear and convincing evidence, that SP intended to change his domicile to Nassau County, State of New York. A hearing will be held on the issue of SP's domicile on November 5, 2007, at 9:30 a.m., prior to the commencement of the probate trial.
RP asks the court for a determination that MP and EP are disqualified under CPLR 4519 from offering evidence in support of MP's motion for summary judgment and from testifying at trial with respect to transactions with SP. RP asserts that EP is barred because she does not consider herself to be divorced from SP because, although they were divorced in accordance with New York State law, they never obtained a divorce under Jewish law and because she and MP have assets in joint name.

CPLR 4519 provides, in pertinent part, that upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event shall not be examined as a witness in his own behalf or interest against the executor, administrator or survivor of a deceased person concerning a personal transaction or communication between the witness and the deceased person except where the executor, administrator, [or] survivor is examined in his own behalf, or the testimony of the deceased person is given in evidence, concerning the same transaction or communication.

The Court of Appeals has held, emphatically, evidence excludable under the Dead Man's Statute (CPLR 4519) should not be used to support summary judgment. While evidence excludable by CPLR 4519 may be used in opposition to a motion for summary judgment, it may not be used to support such a motion. MP is interested in the outcome of the probate proceeding. His sworn statements concerning transactions or communications with SP offered in support of the motion for summary judgment will not be considered. Any objections to MP's testimony at trial will be considered upon proper objection made during the trial.

EP is not interested in the event. The test of the interest of a witness is whether the witness will gain or lose by the direct legal operation and effect of the judgment or that the record will be legal evidence for or against the witness in some other action.

Despite her protestations, the only evidence supports the fact that EP and SP were divorced for approximately thirty years prior to his death, and EP does not appear to have a direct interest in the outcome of the proceeding. EP's sworn statements submitted in support of the motion for summary judgment are not barred under CPLR 4519. Whether she is competent to testify at trial will be considered by the court at that time upon a proper objection.

In support of his motion, MP has submitted EP's affidavit, annexed to which as exhibits are three DVDs alleged to be audio-visual recordings of SP made at various times in and around 2003. MP claims that the statements allegedly made by SP in these recordings support the arguments MP advances in his motion for summary judgment. According to EP, the recordings were copied by a third-party from videotape to DVD. EP swears that the recordings are exactly what occurred during the periods of time taped and that the elderly man appearing on the tapes was SP. EP also swears to the approximate dates the recordings was made.

RP requests that the court not consider the material contained on the DVDs in connection with the motion for summary judgment and seeks an order prohibiting MP from introducing the DVDs at trial. RP argues that there are gaps in the DVDs that raise questions about their accuracy and timing, that MP will not be able to authenticate them at trial since he was the person who was the videographer, and that the communications contained on the DVDs among SP, MP, and EP should be barred under CPLR 4519.

The court has not viewed the DVDs. With respect to the motion for summary judgment, despite EP's sworn statements, the court is not satisfied at this time as to the DVDs’ authenticity since EP did not have custody of them and was not involved in the transfer from cassette tapes to DVDs. MP also swears that nothing was been deleted from the videotapes, but does not offer any evidence from the company that converted the tapes to DVD format. The court will not consider the DVDs in connection with the motion for summary judgment. Whether the DVDs can be authenticated at trial and by whom is an issue to be determined at that time.

Summary judgment may be granted only when it is clear that no triable issue of fact exists. The court's function on a motion for summary judgment is issue finding rather than issue determination, because issues of fact require a hearing for determination. Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party. If there is any doubt as to the existence of a triable issue, the motion must be denied.

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. In doing so, the party opposing the motion must lay bare his proof. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment.

The proponent bears the burden of proving that the testator possessed testamentary capacity. The court looks at these factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural object of her bounty and her relations with them. Moreover, sanity and testamentary capacity are presumed unless there is evidence to the contrary, the presumption being that a mind once sound continues to be so.

In support of the motion for summary judgment dismissing the objections, MP offers the deposition testimony of the attorney-draftsman, TA, who was then the head of the estate department at HD, and two of the three witnesses to the execution of the instrument. Mr. TA testified as to the decedent's mental competence. He stated, There was no question in my mind the guy was totally competent. He knew exactly what he wanted and requested additional changes, then he was satisfied that this was the will he wanted, then we had him sign it. Another witness, TC, who then was a partner at the firm, testified that, prior to the execution ceremony, he observed Mr. TA read the entire will to SP because of his poor eyesight. When questioned about whether there was any problem with SP's competence at the time he executed the will, Mr. TC responded, Absolutely not. Mr. TC states, in his affidavit, sworn to on July 9, 2007, that, it was clear to me that SP was rational, competent and had the capacity to completely understand and execute his Last Will and Testament on August 29, 2003.

There is additional evidence in the record supporting MP's assertion that SP was competent in and around the time the will was executed. Messrs. TC and TA testified that SP was aware of his family members, and Mr. TC has attested to his conversation with SP involving some of his assets, which he claimed were taken by RP. AF, who is SP's ex-brother-in-law, has submitted an affidavit in support of MP's motion in which he states that he spoke by telephone to SP during that time period and at no time did he sound irrational or incompetent. The court finds that MP has made a prima facie case that SP had testamentary capacity at the time he executed the propounded instrument.

RP asserts that SP lacked testamentary capacity on August 29, 2003. He states that, in July and August 2003, he observed SP sitting on RP's porch talking to himself. On one of those occasions, SP is alleged to have asked MP if he could see the angels with whom SP was speaking and whom he had named. RP also states that he once found his father sleeping on the bathroom floor and that he sometimes called RP "MP." He states that he observed SP hallucinating "most days", flicking the bridge of his nose until it bled and sleeping under a toilet when SP was at The Mews. RP has not submitted any medical records from that time period.
Thereafter, when SP resided at The Nautilus Hotel after the will was executed, RP found SP to be confused and agitated. RP has annexed to his opposition papers a note from the assistant director of The Nautilus Hotel to SP's doctor advising him that SP is hallucinating & much more confused. He thinks the devil is telling him things. He was found also in the garage 2 nights ago. This note is dated January 15, 2004, more than four months after SP executed the will. RP also asserts that SP's incompetence is demonstrated by his misapprehension that RP took his assets.

RP also relies on certain of SP's medical records. While SP was a resident at The Nautilus Hotel, his treating physician was BK, M.D. Dr. BK's notes from an examination of decedent on September 4 or 9, 2003 [the date is not clear], state, in part, that Dad depressed thinks has a chemical imbalance. Depression poor vision, glaucoma, legally blind. These notes appear to be from the first time Dr. BK examined SP, several days to more than a week after the will was executed. RP also offers Dr. BK's records from July 6, 2004, which state that SP was "very agitated in dining room" and from October 20, of presumably 2004 since they are in sequence for that year, that note "dementia" for what appears to be the first time. There are notations in the records offered that SP was alert and oriented "x 3."

Notably, there are no records for August 29, 2003. Notably, too, RP was away on vacation from August 19, 2003 and did not see SP for at least ten days prior to the date SP signed the propounded instrument.

A testator needs only a lucid interval of capacity to execute a valid will. This can occur even contemporaneously with an ongoing diagnosis of dementia, Matter of Friedman, 26 AD3d 723 (2006), or even incompetency, In re Walther. There is no medical evidence that SP was suffering from dementia or was incompetent on the date he executed the will. Even assuming that RP witnessed SP hallucinating at times prior to and after the date he signed the will, there is no evidence in the record that SP lacked testamentary capacity on August 29, 2003, the date of the will's execution. Accordingly, MP's motion for summary judgment is granted on the issue of capacity, and RP's objection alleging that SP lacked testamentary capacity is dismissed.

The objectant has the burden of proof on the issue of undue influence. The three elements of undue influence have been described as motive, opportunity, and the actual exercise of undue influence. This classic formulation about what constitutes undue influence still resonates in the case law: it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.
Undue influence is rarely proven by direct evidence; rather, it is usually proven by circumstantial evidence. Among the factors that are considered are: (1) the testator's physical and mental condition; (2) whether the attorney who drafted the will was the testator's attorney; (3) whether the propounded instrument deviates from the testator's prior testamentary pattern; (4) whether the person who allegedly wielded undue influence was in a position of trust and (5) whether the testator was isolated from the natural objects of his affection. With this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations that are specific and detailed and substantiated by admissible evidence in the record. Mere conclusory assertions will not suffice.

A confidential relationship may be inferred if one party has disparate power over the other, such as an attorney-in-fact, guardian, clergyman or doctor, where a confidential relationship is said to exist as a matter of law. However, the law recognizes that a close family relationship counterbalances any contrary legal presumption. MP was the attorney-in-fact for SP at the time he executed the propounded instrument. However, the record does not support a finding that, as a matter of law, a confidential relationship existed between MP and SP.

Turning to the propounded will, Mr. TC knew MP for some time prior to meeting with SP. Mr. TC testified that MP had consulted with him on several legal matters. In mid-August 2003, MP contacted Mr. TC and asked him to meet with SP. Mr. TC agreed and went to The Mews in Connecticut, where SP was living at the time. According to Mr. TC, MP was present for parts of the meeting, which last for approximately one hour. SP asked Mr. TC to assist him with a number of legal matters, including terminating a joint bank account he had with RP at a bank in Connecticut, revoking a power-of-attorney he had given to RP and preparing a power-of-attorney with MP as attorney-in-fact. During the meeting, SP told Mr. TC that RP had taken some securities that belong to SP. He also told Mr. TC that he might want to change his will.

Mr. TC prepared a letter for SP's signature removing RP from the bank account, prepared a revocation of the power-of-attorney and prepared a new power-of-attorney naming MP as attorney-in-fact. Mr. TC met with SP on August 21, 2003 to have SP sign the documents. MP was present for part of the meeting, as well as during the car trip with SP and Mr. TC from Connecticut to Port Chester, New York, where Mr. TC, who has a New York State notary license, notarized SP's signature on these documents.

After receiving a call from SP, Mr. TC met alone with him on or about August 24, 2003. SP told Mr. TC that he was unhappy at The Mews where RP had moved him and was thinking of cutting RP out of his will. On August 27, 2003, SP called Mr. TC and requested that he prepare a new will for him leaving his entire estate to MP and nothing to RP.

Mr. TC states in his affidavit that he consulted with Mr. TA on August 28, 2003. That same day, Mr. TA drafted a new will, along with a summary, and faxed it to SP for his review.
On August 29, 2003, MP brought SP to HD's office in White Plains, New York. Messrs. TC and TA reviewed the will's provisions with SP. According to Mr. TC, SP requested that several changes be made to the will, and insisted on including additional language to the provision that disinherited RP, specifically, that RP "took other substantial assets of mine without my consent and has refused to return same," an accusation that RP denies. MP was in the room for part of the time that SP discussed the will's provisions with the attorneys, although Mr. TC states that they received all directions from SP. After the will was revised, SP executed it. MP was present during the execution ceremony.

The earlier June 21, 2003 instrument, which favors RP, was prepared by Murray Weil, Esq., a Florida attorney. RP has submitted Mr. Weil's affidavit, sworn to on August 1, 2007. In it, Mr. Weil states that he first met SP sixty-one years ago and that he was a client of Mr. Weil's late partner, Harold Shapiro, Esq. Mr. Weil represented SP on various legal matters from 1999 and also that they were in touch every few months by telephone.

Mr. Weil states that SP contacted him in the late spring of 2003 about changing his will. An earlier will executed by SP on May 7, 1999 left MP $29,000 and left the residuary of the estate to MP and RP, equally. SP advised Mr. Weil that he had provided MP with money during his adult years that was not repaid. SP also told Mr. Weil that RP called and visited him in Florida, but MP called only when he needed money. According to Mr. Weil, SP asked him to prepare a will that left everything to RP and nothing to MP. Mr. Weil prepared the instrument, which SP executed on June 21, 2003.

Because the testamentary scheme set forth in the August 29, 2003 will is so dramatically different than that in the June 21, 2003 will, coupled with MP's involvement in engaging Mr. TC to assist SP and MP's presence at certain meetings and during the will execution, the court finds that a question of fact exists as to whether the August 29, 2003 instrument is a product of undue influence. Accordingly, MP's motion for summary judgment on that issue is denied.
The objectant also bears the burden of proving fraud. It must be shown that the proponent knowingly made a false statement that caused decedent to execute a will that disposed of [her] property in a manner different from the disposition [she] would have made in the absence of that statement. Moreover, a finding of fraud must be supported by clear and convincing evidence. In order to defeat the motion for summary judgment on the issue of fraud, the objectant must come forward with more than mere conclusory allegations and speculation. To defeat a motion for summary judgment, the objectant must produce sufficient evidence to show that there is an issue of fact to the effect that the proponent made a false statement or statements to the decedent to induce him to make this will, that the decedent believed the statement, and that without such statement or statements, the propounded will would not have been executed. A showing of motive and opportunity to mislead is insufficient; evidence of actual misrepresentation is necessary. There is no evidence in the record that MP or anyone at his behest actually made a fraudulent statement to SP that caused SP to execute the propounded will. Accordingly, MP's motion for summary judgment on the issue of fraud is granted, and RP's objection alleging fraud in the making and execution of the propounded instrument is dismissed.

Legal dispute same as above calls for the expertise of a lawyer. The Nassau County Family Lawyers and Nassau County Child Custody Attorneys at Stephen Bilkis and Associates are known in successfully handling litigation involving family related legal disputes. Visit our offices located around New York City for free legal consultation.

Court Looks at the Issue of Kinship

February 6, 2016,

A New York Family Lawyer said in this accounting of the Public Administrator, the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. A hearing was conducted and various documents were admitted into evidence, including the purported family tree. All parties stipulated to waive the report of the referee and to allow the kinship issues to be decided by the court based upon the transcript of the hearing, the documentary evidence and the arguments made by the claimants and the guardian ad litem representing the interests of unknown distributees.

JP died on March 1, 2005, a resident and domiciliary of Nassau County. Letters of administration issued to the Public Administrator on July 1, 2005. The summary statement shows charges to the accounting party of $127,103.26.

A New York Divorce Lawyer said that parties claiming to be the distributees of JP have appeared, and they are three alleged paternal first cousins, FPG, MP and SP and two alleged maternal first cousins, MS and AT.

A Queens Family Lawyer said in order to establish their rights as distributees, the claimants in a kinship proceeding must prove: 1) their relationship to the decedent; 2) the absence of any person with a closer degree of consanguinity to the decedent; and 3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take (Matter of Morrow, NYLJ, April 12, 2001, at 23, col 1 [Sur Ct, Bronx County]; 2 Harris, New York Estates, 21:3, at 21-1 [5th ed 1996]). Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements (Matter of Cruz, NYLJ, Jan. 7, 2002, at 29, col 4 [Sur Ct, Kings County]; Matter of Balacich, NYLJ, Jan. 24, 1997 at 30, col 2 [Sur Ct, Kings County]). The quantum of proof required to prove kinship is a fair preponderance of the credible evidence (Matter of Jennings, 6 AD3d 867 [3d Dept 2004]; Matter of Whelan, 93 AD2d 891 [2d Dept 1983], affd 62 NY2d 657 [1984]).

A Long Island Family Lawyer said based upon the evidence presented before the court attorney/referee, the court makes the following findings of fact and conclusions of law: 1) The decedent, JP, died intestate on March 1, 2005; 2) The decedent was unmarried at the time of her death and was never married; 3) The decedent never had any children, either natural or adopted.; 4) The decedent's parents were AP and ES, both of whom predeceased the decedent; 5) The decedent had one sibling, LP, who predeceased her, having died on January 2, 2001, without issue; 6) The decedent's maternal grandparents were BS and JA, both of whom predeceased the decedent. The decedent had two maternal uncles; namely, RS and IS; 7) The decedents' maternal uncle RS predeceased her. RS had one child, AT, who survived the decedent. The decedent's maternal uncle IS predeceased her. IS had one child, MS, who survived the decedent; 8) The decedent's paternal grandparents were ABP and JL. The decedent had two paternal uncles, IWP and HP. The decedent's paternal uncle IWP predeceased the decedent. IWP had three children, FPG, MP and SP, all of whom survived the decedent. HP predeceased the decedent without issue.

The record reflects that a diligent and exhaustive search was rendered to discover evidence of other possible distributees. As three years have elapsed since the decedent's death, the known heirs are entitled to the benefit of the presumption of SCPA 2225. Therefore, based upon the evidence before the court, it is held that the decedent, JP, was survived by three paternal cousins, MP, FPG and SP, and two maternal cousins, AT and MS. Pursuant to EPTL 4-1.1(a)(6), one-half (½) of the decedent's property passes to the issue of paternal grandparents, by representation and one-half (½) to the issue of maternal grandparents, by representation.
With respect to the issue of attorney fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate (Matter of Stortecky v. Mazzone, 85 NY2d 518 [1995]; Matter of Vitole, 215 AD2d 765 [2d Dept 1995]; Matter of Phelan, 173 AD2d 621, 622 [2d Dept 1991]). While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority "with reason, proper discretion and not arbitrarily" (Matter of Brehm, 37 AD2d 95, 97 [4th Dept 1971]; see Matter of Wilhelm, 88 AD2d 6, 11-12 [4th Dept 1982]).

In evaluating the cost of legal services, the court may consider a number of factors. These include: the time spent (Matter of Kelly, 187 AD2d 718 [2d Dept 1992]); the complexity of the questions involved (Matter of Coughlin, 221 AD2d 676 [3d Dept 1995]); the nature of the services provided (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]); the amount of litigation required (Matter of Sabatino, 66 AD2d 937 [3d Dept 1978]); the amounts involved and the benefit resulting from the execution of such services (Matter of Shalman, 68 AD2d 940 [3d Dept 1979]); the lawyer's experience and reputation (Matter of Brehm, 37 AD2d 95 [4th Dept 1971]); and the customary fee charged by the Bar for similar services (Matter of Potts, 123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; Matter of Freeman, 34 NY2d 1 [1974]). In discharging this duty to review fees, the court cannot apply a selected few factors which might be more favorable to one position or another but must strike a balance by considering all of the elements set forth in Matter of Potts (123 Misc 346 [Sur Ct, Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]), and as re-enunciated in Matter of Freeman (34 NY2d 1 [1974]) (see Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]). Also, the legal fee must bear a reasonable relationship to the size of the estate (Matter of Kaufmann, 26 AD2d 818 [1st Dept. 1966], affd 23 NY2d 700 [1968]; Martin v. Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]). A sizeable estate permits adequate compensation, but nothing beyond that (Martin v. Phipps, 21 AD2d 646 [1st Dept 1964], affd 16 NY2d 594 [1965]; Matter of Reede, NYLJ, Oct. 28, 1991, at 37, col 2 [Sur Ct, Nassau County]; Matter of Yancey, NYLJ, Feb. 18, 1993, at 28, col 1 [Sur Ct, Westchester County]). Moreover, the size of the estate can operate as a limitation on the fees payable (Matter of McCranor, 176 AD2d 1026 [3d Dept 1991]; Matter of Kaufmann, 26 AD2d 818 [1st Dept 1966], affd 23 NY2d 700 [1968]), without constituting an adverse reflection on the services provided.

The burden with respect to establishing the reasonable value of legal services performed rests on the attorney performing those services (Matter of Potts, 123 Misc 346 [Sur Ct. Columbia County 1924], affd 213 App Div 59 [4th Dept 1925], affd 241 NY 593 [1925]; see e.g. Matter of Spatt, 32 NY2d 778 [1973]). Contemporaneous records of legal time spent on estate matters are important to the court in determining whether the amount of time spent was reasonable for the various tasks performed (Matter of Von Hofe, 145 AD2d 424 [2d Dept 1988]; Matter of Phelan, 173 AD2d 621 [2d Dept 1991]).

These factors apply equally to an attorney retained by a fiduciary or to a court-appointed guardian ad litem (Matter of Burk, 6 AD2d 429 [1st Dept 1958]; Matter of Berkman, 93 Misc 2d 423 [Sur Ct, Bronx County 1978]; Matter of Reisman, NYLJ, May 18, 2000, at 34, col 5 [Sur Ct. Nassau County]). Moreover, the nature of the role played by the guardian ad litem is an additional consideration in determining his or her fee (Matter of Ziegler, 184 AD2d 201 [1st Dept 1992]).

With respect to accountants' fees, normally, an accountant's services are not compensable out of estate assets unless there exist unusual circumstances that require the expertise of an accountant (Matter of Meranus, NYLJ, Mar. 31, 1994, at 37 [Sur Ct, Suffolk County]). The fee for such services is generally held to be included in the fee of the attorney for the fiduciary (Matter of Musil, 254 AD 765 [1938]). "[T]he purpose of this rule is to avoid duplication (Matter of Schoonhein, 158 AD2d 183 [1st Dept 1990]). Where the legal fees do not include compensation for services rendered by the accountant, there is no duplication and the legal fee is not automatically reduced by the accounting fee (Matter of Tortora, NYLJ, July 19, 1995, at 26)" (Warren's Heaton on Surrogate's Court Practice § 93.08 [7th ed]).

In this case, the attorney has supplied the court with an affirmation of legal services and a supplemental affirmation of legal services, and it shows that the attorney rendered more than 106 hours of legal services of a partner, associate and paralegal at various hourly rates. The attorney's time amounts to a total of $14,887.50, of which $8,335.00 which has been paid. In view of the modest size of the estate, counsel asks that the firm's fee be fixed in the amount of $8,335.00, all of which has been paid. The attorney performed the following services: preparation of the petition for letters of administration and accompanying affidavits of appointment as administrator; identification and collection of decedent's assets; the preparation of the administrator's final account, the petition for judicial settlement of account of administrator, and the affidavit in support of the petition for judicial settlement of account of administrator; arranged for service of an accounting citation and adequate service of same to secure the jurisdiction of the Nassau County Surrogate's Court over the respondents; attendance at the citation return date; multiple telephone conferences and correspondence with attorney for claimants; telephone conferences with the Public Administrator of Nassau County, and the employees of such office; review of family tree charts and birth, death, marriage and familial records, and prepared for, conducted and participated in protracted kinship hearings on separate occasions in the Nassau County Surrogate's Court; preparation of affidavit bring account current and proposed decree judicially settling account of administrator. Considering all of these factors, the court fixes the total fee of counsel for the Public Administrator in the amount of $8,335.00, all of which has been paid.

The accounting also shows accounting fees of $2,875.00, of which $2,300.00 has been paid. The services included preparation of the federal and state fiduciary income tax returns for the years 2006, 2007, and 2008. A final return is also required. The use of an accountant in this case appears to be reasonable. Therefore, the fee of the accountant in the amount of $2,875.00 is approved.

The guardian ad litem has supplied the court with an affidavit of services, and it shows that he rendered approximately 12 hours of legal services. The guardian ad litem's usual hourly rate is $350.00. The guardian ad litem prepared for and attended the kinship hearings, reviewed the documents, prepared his report and had discussions with counsel for the Public Administrator. Considering all of these factors, the court believes the sum of $3,500.00 is fair and proper compensation for the services rendered by the guardian ad litem. The foregoing fee shall be paid within thirty (30) days from the date of the entry of the decree herein.

Commissions are approved subject to audit. The claims of VNA of Long Island, Inc. in the amount of $195.00 and Cablevision c/o NCO Financial Systems, Inc. in the amount of $113.80 are disallowed for failing to file an affidavit of claim (SCPA 1803[1]). In all other respects, the accounting is approved. The decree shall discharge the surety.

The Nassau County Family Lawyers together with the Nassau County Order of Protection Attorneys at Stephen Bilkis and Associates are known for their expertise on family laws, proceeding and jurisprudence. If you know someone in need of legal help, visit our offices located around New York Metropolitan, including Corona for free legal consultation.

Infant Based Plaintiff Sues for Exposure to Lead Paint

February 5, 2016,

The motion of defendant the City of New York (hereinafter the "City") for summary judgment and dismissal of the complaint and cross claims against it is denied.

A New York Family Lawyer said this is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, JP, due to exposure to lead-based paint between March 1992 and May 1994, while in foster care with defendants at their residence located at 22 Winter Avenue, Staten Island, New York.

A New York Divorce Lawyer said broadly stated, the complaint in Action No. 2 alleges that the City and its agents breached their duty to properly supervise, exercise and manage the placement and care of JP into foster care with the defendants, defendants in Action No. 1. More particularly, it is alleged, inter alia, that the City failed to inspect and ascertain that said premises was safe and in good repair (i.e., that it complied with New York City Health Department rules and regulations) prior to the infant's placement in the home at 22 Winter Avenue, and that the City's Department of Health (hereinafter, "DOH") failed to take prompt action either to abate the lead-paint hazard subsequently identified as existing therein and/or remove JP from the premises.

A Brooklyn Family Lawyer said in moving for summary judgment and dismissal of the complaint, the City disputes the adequacy of plaintiff's notice of claim, i.e., that it is devoid of any specific allegations against its Child Welfare Administration (hereinafter "CWA"). The City also maintains that it is entitled to judicial immunity from liability arising out of its decision to delegate JP's placement in foster care to the Society for Seamen's Children (hereinafter, "the Society"), since its child welfare agency was "merely complying with the Family Court's Order" regarding the removal of said infant from the care of his biological mother. Moreover, citing Pelaez v Seide, the City alleges that the governmental functions undertaken by its DOH in its investigation, inspection, monitoring and abatement of the lead-paint hazard at 22 Winter Avenue, constituted discretionary actions for which the municipality may not be subjected to liability even if negligently performed. Neither did it create a special relationship between the infant plaintiff and either the City's CWA or DOH.

A Bronx Family Lawyer said in addition to governmental immunity, it is argued that the City should be afforded a "qualified immunity" under Social Services Law §419, to wit: that this statutory immunity provision, which expressly applies to the duties of child-protective services in responding to reports of abuse or maltreatment, should be extended to apply to the foster-care services which are provided to a child while he or she remains in protective custody.

The City also contends that pursuant to a contract entitled "Agreement for Purchase of Child Welfare Services" between the City's CWA and the Society, the City delegated its responsibilities to supervise and monitor JP's foster care to an independent contractor and, as a matter of law, cannot be held vicariously liable for the "contract agency's" negligent acts. According to the City, while the Social Services Law imposes certain duties on the CWA, there is no statutorily-imposed "non-delegable duty" upon which this lawsuit may be based.

Finally, the City claims that it had no actual knowledge of the lead-paint condition in the foster home until JP was returned to his biological mother, as evidenced by the deposition testimony of its CWA supervisor at the time, Kimberly Smith, who testified that the Society never informed the CWA of JP's elevated blood-lead levels. In further support, the City points to its contract with the Society, wherein the latter's responsibility was specified as including the selection, approval and monitoring of foster homes. According to the City, the Society determined that JP's health condition did not warrant removal from the defendant’s home.
Turning first to the City's contention that the notice of claim lacks the required specificity in that it fails to identify the agency (i.e., CWA) that placed [JP] in custodial care and neglected to "remove [him] from the residence", it does not appear to this Court based on the papers before it that the City has been prejudiced by the alleged vagueness in the notice or deprived of an opportunity to conduct a meaningful investigation (see General Municipal Law §50-e[6]; cf. Ryan v County of Nassau, 271 AD2d 428, 429).

The City's argument that it is entitled to statutory immunity under Social Services Law §419 must also be rejected since it is well settled that a claim of qualified immunity cannot be raised to bar inquiry into [e.g.,] an agency's or county's alleged negligent supervision of children in foster care (Merice v County of Westchester, 305 AD2d 383, 384; see Liang v Rosedale Group Home, 19 AD3d 654,655).

Also unavailing is the City's claim of judicial or governmental immunity. In this case, notwithstanding the Family Court's Order (City's Exhibit "X") placing the infant in the care of the CWA, it cannot be said that his subsequent placement with the defendant at 22 Winter Avenue was at the direction of the Family Court, nor was such "an integral part of the judicial decision-making process" that would warrant an extension of judicial immunity (Mosher-Simons v County of Allegany, 99 NY2d 214 [county judicially immune from liability for alleged negligence of caseworker in performing court-ordered home study on which Family Court would base its placement decision]).

The City has also failed to establish its prima facie entitlement to judgment as a matter of law based on its claims of governmental immunity relating to the actions or inactions of either DOH in ordering the abatement of the condition or CWA's alleged negligent supervision of JP's placement in foster care (see Sean M. v City of New York, 20 AD3d 146, 159, 160; Merice v County of Westchester, 305 AD2d at 384; Barnes v County of Nassau, 108 AD2d 50, 54). In this regard, it is worthy to note that appellate courts in this State do not recognize governmental immunity as a defense where recovery is predicated upon negligence in the supervision of the care provided by foster parents to a child placed in their custody (see Sean M. v City of New York, 20 AD3d at 160; Barnes v County of Nassau, 108 AD2d at 55). As stated by the Second Department in Barnes v County of Nassau (108 AD2d at 54), the duty to care for the welfare of the children is imposed on the [municipality] by the State (Social Services Law §§395, 398), including the responsibility to place the children in foster homes or other institutions under proper safeguards (Social Services Law §398[6][g]), to supervise the children while in foster homes (Social Services Law §398[6][h]), and to remove them from the foster home when necessary (Social Services Law §400). It would be anomalous, to say the least, for the Legislature to impose on the [municipality] such a duty, which could be performed by other entities, and then for the courts to preclude inquiry into the discharge of those duties, even if resulting from negligence or malice (Barnes v County of Nassau, 108 AD2d at 54). Stated otherwise, the duty imposed upon a municipality when it undertakes to act in loco parentis is nondelegable (see Bartels v County of Westchester, 76 AD2d 517, 523).

Consonant with the foregoing, it is the opinion of this Court that the City has failed to establish a right to governmental immunity in the instant matter (see Sean M. v City of New York, 20 AD3d at 160; Barnes v County of Nassau, 108 AD2d at 55). Moreover, since the duty to supervise the care and safeguard the welfare of the infant plaintiff has been determined to be nondelegable, the City's defense based on the theory that the Society was acting as an independent contractor must be rejected (see Bartels v County of Westchester, 76 AD2d at 523), especially in view of the uncontroverted deposition testimony of Kimberly Smith to the effect that it was CWA's responsibility to oversee the services that are provided by the contract agencies such as the Society.

Finally, the City's contention that the CWA was not negligent in monitoring JP's foster care since it was never notified of his elevated blood-lead level by the Society must also be rejected. In the opinion of this Court, this argument is undermined by the failure of the City's DOH to notify CWA of the lead paint violation in the foster home. Moreover, in view of the testimony of CWA's supervisor that she was unfamiliar with the agency's procedures in the event that a lead paint violation was reported to exist in a foster home, questions of fact would appear to exist on the issue of the agency's actual or constructive notice of the lead-paint violations. Summary judgment may not be granted in the presence of triable issues of fact, or where there is even arguably any doubt as to the existence of a triable issue (Fleming v Graham, 34 AD3d 525, 526 [citation and internal quotation marks omitted], rev. on other grounds 10 NY3d 296; cf. Mazerbo v Murphy, 52 AD3d 1064, 1066).

Accordingly, it is ordered, that the motion for summary judgment by defendant the City of New York in Action No. 2 is denied in all respects.

If you’re in a similar situation above contact the experts and competent Nassau County Family Lawyers and the Nassau County Child Custody Attorneys at Stephen Bilkis and Associates. They offer free legal consultation, just visit their offices located around New York Metropolitan, including Corona.

Plaintiff Brings a Suit for Declaratory Judgment

February 4, 2016,

A New York Family Lawyer said that, plaintiffs commenced the within declaratory judgment action seeking a declaration that the emergency rule is null and void, ultra vires and unconstitutional, as a taking of property without just compensation. The complaint also alleges that the rule violated Real Property Law § 226-b which regulates the assignment of leases; Real Property Law § 235-f which creates a right of occupancy but not leasehold rights for roommates; Domestic Relations Law § 11 which sets out the requirements and means for the solemnization of a marriage; and the administrative limitations in the Omnibus Housing Act of 1983, and the State Administrative Procedure Act.
By order to Show Cause dated November 13, 1989 plaintiffs moved in Supreme Court, Albany County, for a preliminary injunction enjoining the implementation of the emergency rule. An order to show cause was granted, which restrained the DHCR from "implementing or effectuating said Emergency Rule, or in any other manner promulgating, issuing, implementing or effectuating the terms, conditions or requirements thereof," but made the motion returnable in Supreme Court, New York County.

A New York Divorce Lawyer said on November 15, 1989, counsel for the plaintiffs and the DHCR entered into a stipulation which provided that the November 13, 1989 Order to Show Cause would not be construed to preclude the DHCR from taking ministerial actions necessary to comply with the procedures required for the promulgation of the regulatory amendments, which are the subject of this action, such as the filing of required Regulatory Impact Statements and Regulatory Flexibility Analyses with the Secretary of State. On December 13, 1989, the New York County IAS Court heard argument, and again extended the TRO pending determination of the preliminary injunction motion. During oral argument on the motion, the Court was informed that the DHCR was in the process of promulgating permanent regulations and had already sent out notices that a public hearing was scheduled for January 22, 1990.

On February 7, 1990, the DHCR filed with the Secretary of State for a 60 day extension of the emergency rule, and on March 20, 1990 the DHCR filed permanent regulations with the Secretary of State, identical in substance to the emergency rule. Plaintiffs, by Order to Show Cause, moved for a preliminary injunction enjoining the implementation of the permanent regulations on the same grounds used to attack the emergency regulation, and for leave to file a supplemental complaint to assert causes of action against the permanent regulations. Plaintiffs also served a demand for compliance with CPLR 5104, claiming that the promulgation of the permanent regulations violated the original TRO.

A Manhattan Family Lawyer said that in the interim, on March 19, 1990 the defendant-intervenors moved by Order to Show Cause to vacate the TRO on the ground that this Court's March 13, 1990 decision established conclusively the lack of plaintiff's likelihood of success on the merits.

A New York City Family Lawyer said on April 4, 1990, the permanent regulations were published effective immediately. The IAS Court, in an order entered April 10, 1990, provided that the TRO imposed by the Supreme Court, Albany County on November 13, 1989 was extended to cover the permanent regulations, pending the Court's determination of the plaintiff's motion for a preliminary injunction. The DHCR appealed. Plaintiffs moved in this Court for an order dismissing the appeal from the April 20, 1990 order on the ground that it was a non-appealable temporary restraining order. Alternatively, plaintiffs sought to vacate the CPLR 5519(a)(1) stay. By order entered May 15, 1990 this Court, sua sponte, deemed the order entered April 20, 1990 as one which granted a preliminary injunction, and provided that the statutory stay would be vacated unless the appeal was perfected for the October 1990 term of this Court. The plaintiffs' challenge to the regulations is based to a large extent, upon their contentions that the promulgation of the challenged regulations is beyond the scope of the DHCR's rule making authority, and that the regulations are contrary to the expressed legislative intention and policy, in the areas of lease succession rights, and domestic relations. We disagree.

The primary issue on these appeals, is whether the IAS Court properly enjoined the implementation of the emergency rule and subsequent amendment to the State Division of Housing and Community Renewal's permanent regulations, adopted in order to conform and/or broaden the administrative regulations governing lease succession rights and anti-eviction protections, under the State and City of New York Rent Control and Rent Stabilization Systems, in accordance with the Court of Appeals' decision.

For the following reasons, we reverse the order entered April 20, 1990, and vacate the preliminary injunction enjoining the implementation of the permanent regulations, and decline to review the denial of the Order to Show Cause seeking to hold the respondent Commissioner in contempt.

Fundamental to a party's entitlement to a preliminary injunction is a demonstration that the party has a likelihood of success on the merits. As this Court has recognized in the past, an administrative agency may not, in the exercise of its rule making authority, promulgate a regulation out of harmony with the plain meaning of statutory language. "Similarly, an agency may not, in excess of its lawfully delegated authority, promulgate rules and regulations for applications to situations not within the intendment of the statute."

This Court has specifically stated that the succession provisions to which the challenged regulations were added are "remedial in nature" and "should be liberally construed to carry out the reform intended and spread its beneficial effects as widely as possible.

The argument that the regulations conflict with Domestic Relations Law § 11 requiring solemnization of a marriage is meritless, as the regulations do not remotely attempt to equate the special relationship defined therein as spousal, and specifically distinguish "husband" and "wife" from that relationship. The regulations do not attempt to confer any other protection or privilege than the protection from eviction upon the death or departure of the tenant of record.
Plaintiffs broadly contend that promulgation of the permanent regulation violates the doctrine of separation of powers, arguing that the DHCR overstepped the boundary of proper Administrative rule making and entered the realm of legislative policy making. The basis for plaintiff's claim is that since 1986 there have been approximately 27 bills introduced in the State Legislature concerning succession by "family members" and individuals "residing with" the tenant of record to the tenant's lease rights in rent regulated apartments, none of which were passed. Plaintiffs view the presentation and debate of such bills without the passage of any legislation as a tacit pronouncement of policy by the Legislature on the subject covered by the challenged regulations. Plaintiffs submit no authority for such argument.

While the line between administrative rule making and legislative policy making has been described as difficult to define in some cases, such is not the case here. The Court in Boreali invalidated a comprehensive Public Health council (PHC) Code regulating tobacco smoking in areas open to the public, finding on the basis of four "coalescing circumstances" that the "difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed" in that the regulations were enacted without legislative guidance in an area, where the Legislature had tried and failed to reach an agreement, and were riddled with exceptions based solely on economic and social concerns. By contrast, the regulations herein were enacted in response to the pronouncements of the Court of Appeals, in an area within the particular expertise of the agency and do not contain any exceptions but, rather, uniformly advance the policies of the regulatory scheme according to the mandate given the agency by the Legislature.

Plaintiffs, for the first time on appeal, argue that the permanent regulations are impermissibly vague because they provide no criteria for determining when a non-traditional relationship commences. The standards for evaluating vagueness were enunciated: Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

These standards however, are not to be applied mechanically. "The degree of vagueness that the Constitution tolerates--as well as the relative importance of fair notice and fair enforcement--depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow."

Here, the challenged regulations set out eight specified factors to be employed in determining whether a family relationship exists. These factors are sufficiently definite to give a person of "ordinary intelligence" a "reasonable opportunity" to make that determination. The question of when such a relationship commences is, contrary to plaintiffs' view, a relatively straight forward factual one, which can be determined in terms of those same eight factors. Aspects of the relationship from the date intermingling and joint ownership of assets began, to when the two individuals began a close relationship with each other's relatives can be examined to determine when the "family relationship" truly commenced. To the extent that the regulations codify the Braschi decision they draw "a distinction between those individuals who are in fact, genuine family members, and those who are mere roommates or newly discovered relatives hoping to inherit the rent controlled apartment after the existing tenant's death, and provide definite means with which to draw that distinction.

Plaintiffs advance various constitutional challenges to the regulations all based on the contention that the regulations effect unconstitutional physical and/or regulatory takings which effectively deprive the landlord of the use of the property indefinitely, without just compensation. Plaintiffs argue that the regulations violate the constitutional guarantee against the taking of private property for public use without just compensation by "removing all control from the landlord and placing permanent occupancy, dominion and control over the landlord's property with the tenant". This conclusion is based upon the plaintiffs' view that the regulations permit "permanent and multi-generational occupancy by strangers."

The New York State Court of Appeals and the United States Supreme Court have upheld rent control and similar regulation of housing conditions and other aspects of the landlord-tenant relationship.

Plaintiffs' argument that the regulations effect an uncompensated regulatory taking is based upon the contention that the broadening of the definition of those entitled to succession rights denies the landlords the economically viable use of the properties, by effectively extinguishing the landlords' expectation of a residual or reversionary interest in the apartments. According to the plaintiffs this results because the regulations permit succession to a broad indefinite class of people predicated upon two years of occupancy or even less. As has already been discussed in connection with the "vagueness" argument advanced by the plaintiffs, it is clear that the regulations specifically define a narrow class of individuals who are entitled to succession.

The occupancy herein is necessarily limited by the lifetime of the succeeding "family member", which is no greater than that of any other traditional relation entitled to succession prior to Braschi, supra. The possession and use of the property in perpetuity is simply not a potential result herein. The landlord is not required to issue renewal leases to an institution with perpetual existence, but rather to natural persons, whose primary residence was already in the landlord's building. The plaintiffs have not shown that they will be able to demonstrate that the regulations prevent them from obtaining a reasonable return on their property. Moreover, unlike the regulations in 520 East 81st Street Associates, supra, the regulations here at issue advance the intended purposes of the Rent Stabilization and Rent Control succession provisions--to prevent the eviction of individuals with substantial ties to their home-apartment and to the former tenant of record. Thus since the plaintiffs will not be able to demonstrate that the regulations do not substantially advance a legitimate state interest or that they deny landlords economically viable use of their property, plaintiffs' challenge based upon the theory that the regulations constitute a regulatory taking will also necessarily fail.

Plaintiffs, though they have strenuously and competently argued, have failed to demonstrate that they have likelihood to succeed on the merits, in their challenge to the regulations. They are, therefore, not entitled to the injunctive relief that they were granted below.

Accordingly, the order of Supreme Court, New York County, entered April 20, 1990, and deemed as one granting a preliminary injunction, is reversed, on the law, the facts and in the exercise of discretion, and the injunction vacated, with costs. We decline to reach the plaintiffs' appeal from the order, entered April 10, 1990, which denied their application for an order holding the defendant Commissioner in contempt for allegedly violating the original temporary restraining order made with respect to the emergency rule, and dismiss that appeal as moot, without costs.

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Court Decides Permanent Custody of Child Based on Child Abuse Allegations

February 3, 2016,

A New York Family Lawyer said the petitioner filed the instant petition seeking an order of child support against the respondent. A hearing was held with respect to the petitioner's application. The petitioner's application is denied.

On April 1, 2002, the petitioner, Frances W., filed a petition against the respondent, Steven M., seeking support for her niece, Melissa M., who is the daughter of the respondent. The support petition was originally dismissed on September 24, 2002 by a hearing examiner in Queens Family Court. By order of a judge of the Queens Family Court, however, the order of dismissal was vacated on November 13, 2002 and the matter remanded back to the hearing examiner to enter a temporary order of support in accordance with Family Court Act § 434 and for further proceedings. On March 13, 2003, that same Family Court judge stayed the proceedings on the support petition until such time as a court enters an order providing for temporary or permanent custody or guardianship of the subject child. As a result, there is no temporary order of support in place as to the instant petition.

A New York Divorce Lawyer said following a custody hearing that lasted almost two years, Referee Ebrahimoff, in a very carefully considered decision, dated May 20, 2005, reluctantly recommended custody to Ms. W. 1 The matter was then referred to Judge Guy DePhillips, who confirmed the Referee's findings of fact and issued a final order of custody to Ms. W. for reasons stated on the record and based on the child's wishes and without prejudice to the issue of the child's emancipation as delineated in the referee's report. The matter was then administratively assigned to this court to decide the issue of child support. The court is called upon to decide the following issues: (1) whether, given her conduct toward both the respondent and Melissa, the petitioner should be awarded support on behalf of the child and (2) whether Melissa has abandoned her father, thus relieving Mr. M. of his child support obligation.
The parties appeared before this court on June 26, 2006, at which time it unsuccessfully attempted to settle this case. This court also pointed out to both sides that the doctrine of collateral estoppel might prevent the relitigation of certain facts material to the child support issue. A hearing was eventually held before this court on November 29, 2006. Based upon the evidence presented at that hearing and the findings of fact made by Referee Ebrahimoff, as confirmed by Judge DePhillips, this court declines to issue an order of child support against the respondent.

A New York City Family Lawyer said the factual findings made by Referee Ebrahimoff reveal that the respondent was married to the petitioner's sister, Theresa M., who gave birth to Melissa in 1987. Both husband and wife suffered from emotional and psychological problems; Ms. M.'s psychological problems, however, were rather severe and, in addition, she suffered a lifetime of chronic pain. These factors most likely drove Theresa M. to take her own life on October 17, 2000. At some point prior to 1993, Ms. M. filed a matrimonial action seeking a divorce from the respondent and custody of Melissa. At that time, Ms. M. alleged that the respondent had sexually abused Melissa when she was an infant. According to the factual findings of Referee Ebrahimoff, Theresa M.'s emotional problems also led her to believe that there were worms in her food and that she had a tapeworm growing inside her. In any event, the sexual allegations made by Theresa M. in the matrimonial action led to the filing of a petition under article 10 of the Family Court Act against the respondent in Queens Family Court. The judge presiding over that action, apparently concluding that the allegations of sexual abuse were baseless, eventually adjourned the case in contemplation of dismissal, granted the respondent supervised visitation with his daughter, and issued a temporary order of protection on Melissa's behalf. The mother, father, and daughter were then directed to attend counseling, and, in October 1993, that same Family Court judge held that the ACD was satisfied. At some point, apparently in 1993, Theresa M. was granted a divorce from the respondent. The stipulation of settlement included liberal overnight visits for the father. The father's visits under the divorce settlement would be subject to the rules governing the ACD.

The sexual abuse allegations made by Theresa M. against the respondent in the matrimonial action did not, however, end with the resolution of that proceeding or the dismissal of the article 10 petition. Referee Ebrahimoff expressly concluded that, throughout the history of this case, Theresa M., aided by her sister, Frances W., repeatedly accused Mr. M. of sexually abusing Melissa. It was quite obvious from the written decision of the Referee, as confirmed by Judge DePhillips, that the allegations made by the two women were fabricated. In the end, the Referee determined that the two women succeeded in destroying the child's relationship with her father. In reaching this conclusion, Referee Ebrahimoff relied on forensic reports by Ruth Cohen, M.D., who interviewed Melissa and her parents in June 1992 and Dr. N.G. Berrill, who interviewed the child and her parents in May 2000.

Melissa was almost five years old when she was interviewed by Dr. Cohen. At the time, there were proceedings involving Steven and Theresa M. in both the Supreme Court and Family Court and Melissa had refused to visit her father, an unwillingness the mother attributed to the alleged sexual abuse. In the opinion of Dr. Cohen, however, Melissa had not been sexually abused by her father. Her opinion was, in part, based on the child's inability to provide details about the alleged incident and the fact that there was no change of affect when the child spoke of the alleged abuse. Dr. Berrill, who interviewed the family in May 2000, as part of the proceedings in Family Court, was unable to state with certainty if Melissa had been sexually abused by her father. Interestingly, in his report, Dr. Berrill stated that this examiner is nonetheless highly suspect of these allegations and remains convinced that other interpersonal and family dynamics can be pointed to, to explain the problems that currently exist with respect to the subject child refusing to visit with her father.

In sum, the Referee found that Melissa had not been sexually abused and that Ms. W., persisting in her belief that the father had abused Melissa, worked to undermine the child's relationship with her father. Nevertheless, despite the Referee's express finding that Melissa had not been sexually abused by her father, at the hearing held before this court, both Ms. W., who spoke out often during court proceedings, and her attorney insisted that a 1992 examination done of the child by a physician established that the child had been sexually abused. Karen Liquornik, M.D., the physician who performed the examination, testified at a June 24, 1992 deposition that Melissa had, in fact, been sexually abused.5
The deposition of Dr. Liquornik, who had graduated from medical school in May 1991 and had commenced her residency in pediatrics in July 1991, revealed that, on November 29, 1991, while Theresa M. was being treated in a hospital in New York City, Ms. W. and Melissa's maternal grandmother took the child to the emergency room of Queens Hospital Center. Dr. Liquornik spoke to both women, who informed the doctor that Melissa had been sexually abused; the doctor then spoke alone with the child for "definitely over an hour. Doctor Liquornik next conducted a vaginal examination of Melissa, who screamed and shook violently during this procedure. In fact, the assistance of "quite a few" medical personnel were needed to keep this traumatized child still while the doctor conducted her examination. Based on "certain statements that Melissa told Doctor Liquornik and then based upon the fact that the physical findings were consistent with the diagnosis of sexual abuse by the father of the child, Doctor Liquornik concluded that Melissa's father had sexually abused her. As further explained by the doctor, "Yes, it was consistent with the diagnosis in that it did not go against the diagnosis."
The child was also checked for any sexually transmitted diseases. Doctor Liquornik observed some redness in the child's labia majora. There were, however, no cuts, lacerations, or bleeding in the genital region. Her vaginal opening was five millimeters, which the doctor testified was in the range of suspicion. As this witness testified, one to three millimeters is normal, 3 to something like 6 is suspicious and above 6 to 7 is maybe not definite abuse but very suspicious. The doctor did note that the child's agitation might [make the size of the vaginal opening] smaller than it actually is. The doctor also testified that a lot of 4-year-old girls do have redness from general scratching and yeast infections which are not sexually transmitted. Doctor Liquornik testified that she also spoke to Melissa's mother at some point in time that day. Inexplicably, this physician was unable to state whether she had spoken to Melissa's mother before or after the vaginal examination was performed. In other words, this witness was unable to remember something as important as whether or not she had received permission from the child's mother prior to conducting a vaginal examination on a four-year-old girl, who was brought into a hospital emergency room not by her mother, a police officer, or a representative from a child protective services, but by her maternal aunt and grandmother. Based upon her "diagnosis," Doctor Liquornik contacted the Bureau of Child's Welfare, as the Administration for Children's Services was known in those days.

Contending that both Referee Ebrahimoff and Judge DePhillips were completely incorrect in their assessment of the evidence presented at the hearing, the petitioner relies on Dr. Liquornik's deposition as proof that her niece was, in fact, sexually abused. The petitioner's attempt to establish at the hearing before this court that there is adequate proof that the child was, in fact, sexually abused by her father, must be rejected for two reasons. First, Ms. W. is collaterally estopped from relitigating the issue of sexual abuse that had been resolved against her by Referee Ebrahimoff at the custody hearing. Second, even if this court found the doctrine of collateral estoppel did not apply to this case, given the evidence presented at the hearing and in light of the proceedings that took place before both the Referee and Judge DePhillips, this court would reach the same exact conclusion reached by those courts: namely, (1) that Melissa was never sexually abused by her father and (2) that the petitioner has poisoned the child's relationship with her father since Melissa was at least four years old. The court reaches this conclusion notwithstanding the deposition of Dr. Liquornik.

The equitable doctrine of collateral estoppel is intended to reduce litigation and conserve the resources of the court and litigants. As noted by the Court of Appeals, collateral estoppel is a common-law doctrine rooted in civil litigation and emanates from the basic notion that it is unfair to allow a party to relitigate issues that have already been decided against [that party]. The elements of collateral estoppel are as follows: [1.] the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and [2.] the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. The party who seeks the benefit of collateral estoppel has the burden of establishing that there are identical issues in both the present litigation and the prior litigation and that the issues were decided in such prior action. The litigant who wants to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action.

In the proceeding before Referee Ebrahimoff, the specific factual issues that Ms. W. attempted to establish in support of her petition for custody of Melissa were that (1) Melissa had been sexually abused by her father and (2), as a result, the child had absolutely no desire to have a relationship with her father. And those issues were vigorously litigated before Referee Ebrahimoff. Although Mr. M. confirmed that Melissa and he do not have any interaction with one another or any normal father-daughter relationship, he unequivocally denied the allegations of sexual abuse. Both at the custody hearing and the hearing before this court, Mr. M. and Melissa's Law Guardian forcefully argued that there was no credible evidence that the child had ever been sexually abused. They further argued at both proceedings that the evidence established that the child believed that her father had sexually abused her because the child's mother, aided by Ms. W., had brainwashed the child into falsely believing this. It was that falsely instilled belief, the Law Guardian and the father contended, that ultimately destroyed Melissa's relationship with her father. Referee Ebrahimoff concluded that the evidence supported the positions advanced by Mr. M. and the Law Guardian. Given the child's age, however, Referee Ebrahimoff reluctantly awarded Ms. W. custody of Melissa. Judge DePhillips, noting that Ms. W. acted as "judge, jury, and executioner," with respect to Melissa's relationship with her father, reluctantly confirmed that finding.

The court first finds that Mr. M. has sustained his burden of establishing that the factual issues decided in the custody action are necessarily identical to and decisive of the present action before this court. In the court's view, both the sexual abuse allegations, the petitioner's inexplicable role in the child's belief that the respondent had sexually abused her, and the child's subsequent refusal to have a relationship with her father were factual issues decided in the custody case. Those same issues are necessarily decisive of the support action before this court. Specifically, in deciding whether or not to award the petitioner child support on behalf of Melissa, this court is permitted to take into account Ms. W.'s egregious conduct toward the respondent and his daughter, which succeeded in destroying his relationship with his daughter and which deprived Melissa and her father of the warmth and affection of one another. In that sense, the factual issues decided in the custody proceeding concerning Ms. W.'s actions in improperly brainwashing Melissa into falsely believing that her father sexually abused her are identical and necessarily decisive of the present action before this court. For this reason, the court concludes that Mr. M. has sustained his burden of proving the first prong of the collateral estoppel test.

The court further finds that the petitioner had a full and fair opportunity to contest the prior custody determination. Ms. W. was represented by an attorney who advocated vigorously for her. In fact, despite her egregious conduct toward Melissa and her father, Ms. W. was awarded custody of the child. In the court's view, she has failed to establish that she was deprived a full and fair opportunity to litigate the prior custody determination. For example, as to Dr. Liquornik's deposition, the petitioner failed to present adequate proof that she was denied an opportunity to present evidence regarding what Melissa said to this doctor. Finally, there was no indication that she was prevented from calling Doctor Liquornik as a witness at the custody hearing or, assuming its admissibility, introducing the deposition into evidence at that hearing. In other words, there was no evidence presented at the hearing before this court that Ms. W. was denied a full and fair hearing as to her petition for custody because of an erroneous preclusion of critical evidence. Accordingly, the respondent is collaterally estopped from relitigating the findings made by Referee Ebrahimoff that Ms. W. improperly convinced Melissa into falsely believing that her father had sexually abused her and that this conduct ended up ruining Melissa's relationship with her father.

In any event, even if the doctrine of collateral estoppel is inapplicable to the support case, the court finds that the deposition of Dr. Liquornik does not compel findings different from those reached in the custody determination. If anything, Dr. Liquornik's deposition supports the findings made by Referee Ebrahimoff. As noted, the deposition reveals that Melissa was taken to an emergency room by her grandmother and Ms. W. at a time when the child's mother was in the hospital. At the hospital, allegations of sexual abuse were made by the two women and the child to a physician who had barely six months of experience as a medical doctor. More troubling is that this doctor conducted an invasive gynecological examination of a four-year-old girl and was unable to remember whether or not she had spoken to the child's mother before or after the examination was conducted. Dr. Liquornik's obvious inexperience revealed that parental permission had not been obtained prior to this examination. The doctor then made a "diagnosis of sexual abuse," despite the almost total absence of physical signs that Melissa had been sexually abused. Her evaluation was primarily based upon what Melissa had told her. Dr. Liquornik, however, was obviously completely unaware of the claim that Ms. W. and Melissa's mother had coached the child into making up these allegations. Finally, there is no indication that the doctor was aware of the mother's mental instability. This court has read Dr. Liquornik's deposition very carefully. She would not have supported Ms. W.'s claim. Rather, that deposition would have supported the positions advanced by both Mr. M. and the Law Guardian. It would have established how far back in time Melissa was being brainwashed by Ms. W. into believing that her father was touching her inappropriately.

Accordingly, in deciding whether or not to order Mr. M. to pay child support to Ms. W. on behalf of Melissa, the court must accept and take into account the established findings made by Referee Ebrahimoff, as confirmed by Judge DePhillips. Those established findings are that Mr. M. has absolutely no relationship with his daughter because of Ms. W.'s improper actions in destroying the child's relationship with her father and convincing Melissa to believe falsely that her father had sexually abused her. Given that conduct, this court, relying on the Second Department's decision in Matter of Orange County Dept. of Social Servs. v Meehan, finds that Ms. W. has forfeited her right to seek child support from the respondent on behalf of Melissa.
In Matter of Orange County Dept. of Social Servs. v Meehan, the Second Department noted that it is well settled that a court has the authority to suspend a noncustodial parent's obligation to pay child support when it finds that the custodial parent has unjustifiably denied the noncustodial parent his or her right to visitation. In this case, the findings by the Referee revealed that the petitioner not only interfered with Mr. M.'s right to see his daughter, but that she participated in a course of conduct with the child's mother which succeeded in utterly destroying the respondent's relationship with his daughter. Of course, in this case, Mr. M. is not requesting this court to suspend or terminate child support; he is asking that the court decline to make an initial child support determination to the petitioner because of her misconduct toward him and his daughter. That factual distinction, however, is meaningless. This court concludes that the Second Department's decision in Matter of Orange County Dept. of Social Servs. v Meehan should be extended to the facts of this case. And, in light of that decision, this court concludes that the petitioner is not entitled to an award of child support.
Interestingly, there appears to be scant New York case law on this issue. The reason is, perhaps, obvious. Under similar circumstances, an order of custody is usually not warranted to a person who has interfered so shockingly in a child's relationship with his/her parent. This is especially so when the interference involves coaching a child into making up false sexual allegations about the child's parent. Of course, Mr. M. was not awarded custody of his daughter and this court is bound by that determination. Nevertheless, the law should not further compound the unusual, but understandable, result reached in the custody case by now requiring Mr. M. to pay child support to Ms. W. In light of Ms. W.'s egregious conduct, the court should not facilitate her further attempt to use the justice system in order to obtain child support from Mr. M.

The result reached by this court is consistent with public policy concerns and notions of fundamental fairness. In that regard, the decision by the Second Department in Matter of Orange County Dept. of Social Servs. is an implicit recognition of fundamental principles of law that courts have occasionally invoked to decide cases. As far back as 1889, the New York Court of Appeals stated that all laws may be controlled in their operation and effect by general, fundamental maxims of the common law. The Court of Appeals further noted that these maxims are dictated by public policy [and] have their foundation in universal law administered in all civilized countries. In Riggs, the Court was confronted with a situation in which a grandfather, who had left his grandson a substantial portion of his estate in his last will and testament, was murdered by that grandson. Invoking the maxim that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime, the Court of Appeals invalidated that portion of the will as it related to the grandson's bequest. The Court noted that the evidence established that the grandson was aware of the bequest, that the grandfather had manifested an intent to revoke the bequest to his grandson, and that the grandson murdered the grandfather by poisoning him to prevent him from revoking the bequest, and to obtain the speedy enjoyment and immediate possession of his property.

In this case, the record reveals that the petitioner essentially was an active participant in destroying Melissa's relationship with her father. Apparently, the child truly believes that she has been sexually abused by her father. And according to an affidavit of Ms. W., dated October 21, 2002, which is part of the court file, the respondent and Melissa have not seen one another since June 14, 1997. What is lost will most likely never be recovered; Ms. W. is directly responsible for the loss suffered by both father and daughter. Under these circumstances, the court would be allowing the petitioner to profit by her own fraud or take advantage of her own wrongdoing if it ordered Mr. M. to pay child support to Ms. W. on behalf of Melissa. Given the decision in Riggs, the court declines to award child support to the petitioner.

It must be emphasized that the court's decision today resolves only that Ms. W. is not entitled to benefit from or be compensated for her own wrongdoing and be awarded child support in favor of Melissa. The decision does not resolve whether or not Melissa is entitled to child support directly from her father. At the hearing, the court wished to hear from Melissa. Unfortunately, she was never called as a witness and the court was never able to make a determination as to whether or not she has unreasonably abandoned her father. In other words, insufficient evidence was presented as to whether or not her refusal to see Mr. M. is justified. For this reason, the court is ill equipped to make such a determination. Support obligations should not be suspended if the child is too young or immature to be held responsible for the consequences of the refusal.

And even if the record in the custody proceeding suggests that Melissa has abandoned her father, the court finds that the child should not be estopped or prevented from pursuing her own petition against her father. Again, fundamental notions of fairness compel this result. It must be emphasized that Melissa has been under the control of her aunt since she was a very young girl. Given the improper influence exercised by the petitioner, Melissa's Law Guardian correctly took positions antagonistic to those advanced by Ms. W., both at the custody and support proceedings. At the hearing before this court, the Law Guardian did not fully address whether or not Melissa's refusal to see her father is reasonable within the meaning of the law. Now that Ms. W.'s financial control over the child has been severed by the decision of this court today, Melissa, who has been victimized by her aunt's conduct, may now be comfortable with the prospect of having a warm relationship with her father. Accordingly, given these circumstances and that the support duty is owed to the child, if Melissa wishes to file a support petition against Mr. M., she is entitled to do so on her own. With respect to that petition, Mr. M., if he so desires, may present evidence that this child, who has been brainwashed against her father by the petitioner since, at least, the age of four, has unjustifiably and unreasonably abandoned her father.

Finally, it should be noted that it appears that Mr. M. apparently stopped paying child support to Melissa's mother under the Supreme Court support order that was issued as part of the matrimonial action. It should also be noted that the petition before this court is one for an original child support determination; it is not an enforcement petition. Of course, Ms. W. could have filed a petition to enforce any arrears that had accrued as to the Supreme Court order. For reasons unknown to this court, however, the support petition filed by the petitioner was one for an original child support determination. Although this opinion should in no way be construed to mean that Ms. W. should be awarded any arrears that have accrued on behalf of Melissa, it in no way precludes Melissa, who will be 20 years old in 2007, from filing that petition herself.
In that regard, the parties should also be aware that, pursuant to Family Court Act § 451 and the Court of Appeals decision in Matter of Dox v Tynon interpreting this statute, a court has no authority to modify or annul the arrears that have accrued from a child support order.

Specifically, Family Court Act § 451 states that a court may modify, set aside or vacate any order issued in the course of a child support proceeding, provided, however, that the modification, set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section. As noted in Dox, based on the legislative amendments of 1980 and 1981, where a parent defaulted on child support, a court may relieve such parent from a support judgment only if the defaulting parent could establish good cause for having failed to request downward modification of support obligations prior to the accumulation of arrears. The Legislature, however, was not so generous to defaulting parents when it enacted the New York State Support Enforcement Acts of 1986 and 1987. In interpreting these two acts, the Court of Appeals noted:

The purpose of the recent revisions was to preclude forgiveness of child support arrears to ensure that respondents are not financially rewarded for failing either to pay the order or to seek its modification.' Under the present enforcement scheme, then, no excuses at all are tolerated with respect to child support.' Child support arrears must be awarded in full, regardless of whether the defaulter has good cause for having failed to seek modification prior to their accumulation. If a party obligated to pay child support wishes to avoid making payment, such as where his or her financial circumstances have deteriorated, that party must make an affirmative request for relief.

Thus, to the extent that there is a Supreme Court child support order, Melissa may file a petition to enforce any arrears accrued as to that order. With respect to Ms. W., her request for an order of child support from Mr. M. is denied.

The Law Guardian is directed to provide Melissa with a copy of this decision and to then explain to her that she has the right to file her own support petition or enforcement petition against Mr. M.

Accordingly, the petitioner's application for child support, however, is denied.
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Petitioner Files Claim to Extend Placement in Foster Home

February 2, 2016,

A New York Family Lawyer said this extension of placement proceeding under Section 1055 of the Family Court Act raises questions as to the perimeters of the Family Court's jurisdiction.

MR was born on June 19, 1982. Less than two months later, she was remanded to the Commissioner of Social Services who has had responsibility for her since that time. On November 22, 1982, after a finding of neglect, MR was placed with the Commissioner for 18 months. On December 8, 1982, the Commissioner placed the child with St. Christopher's Home for Children, an authorized agency, which in turn placed her with F Parents, where she continues to reside.

A New York Divorce Lawyer on March 1, 1984, the Commissioner filed a petition to extend placement for one year pursuant to Section 1055 of the Family Court Act. The Commissioner's long term plan, with the agreement of St. Christopher's, was for eventual discharge of the child to her mother. On May 1, MR's mother appeared in the Intake Part, was assigned counsel and indicated her intent to oppose the extension. On May 15, she requested a long adjournment, because, as her lawyer indicated, the mother is progressing very nicely. We would just like her to continue for a longer period of time.

A Nassau County Family Lawyer said the court adjourned the proceeding to the end of June and confirmed the mother's right to visitation. As a result of a clerical error, the case did not come to trial until November 15.

On May 24, the situation changed. St. Christopher's permitted an overnight visitation between MR and her mother. During that visit, the mother suffered a major emotional disturbance which resulted in her being removed in a straight jacket to Nassau County Medical Center, where she was diagnosed as being suicidal and having overdosed on drugs. During the incident, her mother left MR with her great aunt and uncle, Jose and Claire H. ("the Extended Family").
Social workers at St. Christopher's, having met the Extended Family for the first time, quickly moved to develop them as a resource. While St. Christopher's social workers developed a positive relationship between MR and the Extended Family, including the H.'s young children, they decided that the mother was no longer a resource for MR and would not be one for the foreseeable future.

A Staten Island Family Lawyer said that that point the St. Christopher's social workers faced a decision. With the father having been previously eliminated as a resource by them and the mother, in their opinion, no longer a viable resource, they had to choose between the F Parents and the Extended Family for a permanent home for MR. The choice was a difficult one, not because of the usual problem of a lack of adequate resources, but because both homes provided better than adequate resources.

A Queens Family Lawyer said the F Parents had opened their hearts and their home to MR, as they had to several prior F children. MR has lived with them virtually all of her life and has received what St. Christopher's characterized as "exceptional" care. To a great extent, the F Parents are MR's psychological parents and they wish to adopt her.

The Extended Family also offers a good and loving home. In addition, they also offer easy access to MR's natural relatives and to her mother.

St. Christopher's added another factor to the equation, an unwritten Department of Social Services policy to favor a natural family in such choices, a policy St. Christopher's contends is supported by standard social work procedures.

On October 16, St. Christopher's filed a motion to terminate the placement and to discharge MR to the Extended Family. The next day the F Parents moved the court to order a proceeding to terminate the parental rights of MR's parents and free her for adoption by them.

By the time the case came on for trial on November 15, all of the parties conceded that neither of MR's parents was able to care for her at that time and that placement should be extended. The remaining issue was the terms of the extension. The Commissioner and St. Christopher's favored a short extension with a trial discharge to the Extended Family. The F Parents and the Law Guardian argued for a residential status quo and an order to commence a termination proceeding. MR's mother proposed a goal of discharge to her after expiration of the new placement and if that did not occur, discharge to the Extended Family. MR's father defaulted and did not appear. St. Christopher's introduced his signed consent to a discharge of MR to the Extended Family. There was no evidence as to the circumstances surrounding the execution of that consent.

The Family Court is a court of limited jurisdiction. It possesses only that jurisdiction specifically granted to it by the constitution and the legislature.

Among its areas of jurisdiction is exclusive original jurisdiction over child neglect proceedings. As part of that jurisdiction, it has the power, after a finding of neglect, to place a child in the custody of the Commissioner of Social Services, as was done here. That placement may be extended for successive periods of one year, after a hearing and a finding of a need to extend placement and that placement is in the best interests of the child. An order extending placement may provide that the Commissioner undertake diligent efforts to improve the parent-child relationship or that he commence a proceeding to terminate parental rights. However, Family Court Act Section 1055, unlike Social Services Law Section 392, makes no provision for the court to review the conditions of the Commissioner's placement plan.

Traditionally, the Commissioner has taken the position that the court can do no more than make or extend the placement, with the responsibility for the child's well-being exclusively left to him. He notes that the legislature has not granted the court the power to review his plans for a child placed under Section 1055 that it has granted under Social Services Law, Section 392 for certain other placements. That demonstration of legislative intent is, indeed, significant.
The Court of Appeals has held that the Family Court, even with the best of intentions, cannot intrude into the Commissioner's area of responsibility. It noted, quoting the United States Supreme Court in Bell v. Wolfish, which dealt with other circumstances, that under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan.

That is not to say that the court is expected to simply send children into placement without further investigation. There is substantial legislative intent to the contrary. The legislature's findings, as set forth in Family Court Act Section 141, are that once the court intervenes in the life of a child, it has a wide range of powers and wide discretion to exercise those powers. Section 1011 of the Act charges the court with the protection of the physical, mental and emotional well-being of children brought before it in child protective proceedings. In Social Services Law Section 384-b(1), which is applicable to children placed pursuant to Section 1055, the legislature has expressed its intent that such children have permanency and stability in their lives.

With that mandate, the court can, indeed must, satisfy itself that the Commissioner's plan is adequate for the child with a satisfactory permanency goal. That is not to say that the court may substitute its judgment for the Commissioner's and choose between adequate plans or design its own plan in place of an adequate plan proposed by the Commissioner. That is not the court's function, but it can satisfy itself that the Commissioner's plan meets the child's needs.
It must be noted that a child such as MR may well find herself the subject of five or more separate proceedings in three different courts before she finds permanency. One Family Court Judge hears the child protective proceeding and makes the first placement. Other Family Court Judges may hear successive annual extensions of the placement. Yet another Family Court Judge or a Surrogate may hear a termination of parental rights proceeding and another Family Court Judge or Surrogate an adoption proceeding. Domestic Relations Law Art. VII. Furthermore, any person aggrieved by a removal of a child from a F home or institution may seek review of the removal in the Supreme Court. Each of these Judges has authority to affect the child's well-being, but only within the perimeters of the proceeding before him or her.
It is against that framework that the various applications must be considered.

MR's initial placement expired on May 22, 1984. The extension hearing was delayed, first at the mother's request and later for a substantial amount of time as a result of a clerical error. There was then an extensive trial of 18 days. During the period of delay, the placement was temporarily extended 22 times, for good cause shown each time.

The Commissioner argues that placement should be extended from the date of the expiration of the last temporary extension. The mother takes the position that the court can do no more than extend placement one year from the expiration of the original placement. Neither cites case law to support their position, and the court has found none on the subject. However, logic dictates that the extension should run from the date of this order rather than from the date of the expiration of the initial placement.

The obvious purpose of the extension provisions of section 1055 is to guard against a child being placed and then forgotten. The statute requires that the Family Court make a finding for each extension that placement is in the child's best interests and should be extended. There is nothing in the statute which limits the aggregate time the child may remain in placement. Rather, it contemplates "successive" extensions, without limit, until a child reaches her or his majority. F.C.A. § 1055(b)(i).

It should be noted that each of the temporary extensions required a judicial finding of good cause. F.C.A. § 1055(b)(iv). During the period of the temporary extensions, MR's placement was closely monitored by the court.

The extension hearing, which is in the nature of a dispositional hearing (F.C.A. §§ 1055, 1052), included evidence to the present time and the findings are based in part on recent events. Accordingly, the extension should reflect the finding that a placement for one year from now is necessary and in MR's best interests. To rule otherwise would require another extensive trial, on the same issues, only two months after the order in this case. Such a trial would frustrate the legislature's desire to afford F children some measure of stability.

The mother declined to testify. Where a party declines to testify in a civil proceeding, the trier of the facts, in this case the court, may draw the strongest inferences against that party which the record permits. While the failure to produce documentary evidence may give rise to a conclusive inference, the weight given to the failure to produce oral evidence rests here with the court.

The proceeding sub judice is unusual. Family Court Act Section 1055(d) permits the court, upon finding "reasonable cause," to order the commencement of a proceeding to terminate parental rights. Although that term is not further defined in the Family Court Act or by case law, Section 70.10(2) of the Code of Criminal Procedure has the following definition:

'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.

It would seem that the same standard is appropriate here.

Faced with such a low standard of proof, it offends justice to require a parent to present her defense at this stage, before the petitioner's proof is required to reach the level of a prima facie case. Indeed, the transcript of the mother's testimony could be used to establish a prima facie case against her if a termination proceeding is ordered. Such a procedure would fail to meet the due process standard envisioned by the United States Supreme Court in Santosky v. Kramer, which, among other things, requires a finding against the parents by clear and convincing evidence, a high standard of proof.

Sections 384-b(4)(d) and (7)(a)-(f) of the Social Services Law provide for parental rights to be terminated if a parent fails to plan for the future of a child, although physically and financially able to do so.

The evidence presented, primarily through the testimony of two social workers from St. Christopher's and St. Christopher's case record, shows a history of failure to engage in psychotherapy, failure to hold a job, although each parent has marketable skills, and failure to maturely manage their money while they were employed. In addition, they changed residences frequently, often because of disagreements with their landlords. Both social workers opined that they believed neither parent was capable of planning for the child.

The question of whether to order a termination proceeding is particularly critical here because of MR's tender age. If her parents' rights are terminated, MR has two fine sets of prospective adoptive parents who can offer her stability and the opportunity to grow up normally. Therefore, it is essential that the termination issue be promptly disposed of one way or the other.
The record reflects reasonable cause to believe that grounds for a termination for failure to plan for the child exists as to both parents. In addition, the father's infrequent interest in the child may also be the basis for the termination of his rights. The issue should be settled by a full evidentiary hearing with the due process protections mandated by Santosky v. Kramer, supra.
Merely discharging MR, at age 3, to the Extended Family, as St. Christopher's and the Commissioner propose, is not an adequate plan. It is clear from the case record that the mother will sue for child custody at her first opportunity and, if she is unsuccessful, frequently thereafter. The Extended Family, if they elect to oppose the application, will be obligated to prove the existence of extraordinary circumstances, as that term is defined in Bennett v. Jeffreys, without access to the considerable resources of the Commissioner or St. Christopher's.

The discharge plan is inconsistent with the direction to commence a termination proceeding and the Commissioner and St. Christopher's may not proceed with that aspect of their plan.
The only remaining question is where MR will reside during the extended placement. Both the F Parents and the Extended Family claim special consideration as a result of their respective status.

The Extended Family, citing Sibley v. Sheppard, make a "blood is thicker than water" argument. However, that argument has been rejected by the Court of Appeals. That is not to say that whatever special advantages they may be able to offer MR as a result of being her natural family should not be considered. Certainly they should, but the mere fact of being the natural family gives the H.'s no special rights in this proceeding.

The F Parents' claim to special standing is more troublesome. F Parents have no special rights to their F children except as may be specifically given to them by statute, and then only if the statute protects the constitutional rights of the child and the natural parents. Although they have substantial rights in other parts of the multi-proceeding legal framework described above, their rights in extension proceedings are limited by Family Court Act Section 1055 to procedural matters, unlike an adoption proceeding where they are given a special preference to adopt.
The F Parents further argue that the child has spent most of her life with them and that removing her at this point will cause her substantial emotional damage. In support of that position they offered the expert opinion of a psychiatrist, Dr. Jeffrey Sverd, who testified that in every case of a child MR's age the removal of a child from his or her F parents, even to be returned to his or her natural parents, will cause such damage. He did not testify that MR's risk is measurably greater than the norm. The Extended Family countered with their own psychiatrist, Dr. John Price, who opined that MR would suffer some short term emotional dysfunction, but had minimal risk of long term damage.

The problem of the emotional effect of removing a child from a secure F home has been of concern to both mental health professionals and the courts. The F Parents urge that the child should remain with them because their care of the child has been so loving and extraordinarily good that removal of the child from their home would cause her distress and possible long term damage. As seductive as that argument is, it has been rejected by the appellate courts.
The teaching of the Court of Appeals in Spence-Chapin Adoption Serv. v. Polk, supra, is on point here:

To the ordinary fears in placing a child in F care should not be added the concern that the better the F care custodians the greater the risk that they will assert, out of love and affection grown too deep, an inchoate right to adopt. The temporary parent substitute must keep his proper distance at all costs to himself.

Absent testimony that MR's is an unusual case, there are no grounds for the court to substitute its judgment for the Commissioner's but the Commissioner should consider the opinions of Drs. Sverd and Price in choosing the proper residence for MR, pending the verdict in the termination proceeding. That decision, however, remains with the Commissioner, subject to review pursuant to Social Services Law sections 22 and 400.

MR's placement is extended until February 28, 1986. The Commissioner and St. Christopher's are ordered to commence a termination of parental rights proceeding and they are prohibited from discharging MR during the extended placement period until either the conclusion of the termination proceeding or further order of this court. The Commissioner and his agents are charged with the responsibility of determining the appropriate residence for MR.

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Court Decides if Case Against Social Services can be a Class Action

January 20, 2016,

A New York Family Lawyer said in this Article 78 proceeding raises the questions whether (1) the County Commissioner of Social Services has discretion as a matter of policy and without regard to the facts of the particular case to refuse a special grant to an aid to dependent children recipient who claims that she and the children are destitute because cash has been stolen from her and (2) whether the proceeding can be maintained as a class action.

A Nassau County Family lawyer said that the petition alleges that petitioner is the mother of four children, that she receives public assistance in the category of Aid to Dependent Children, that on July 31, 1971 she received a check issued by the Department of Social Services in the amount of $398.00 which she cashed at the bank where she spent $3.00, putting the remaining $395.00 in an envelope in her pocketbook, that she went to the laundromat and then back to the bank and when she sought to pay for the purchases then made could not find the envelope or the money, that she reported her loss to the Department of Social Services and the police, that she was told by the Department that nothing could be done, that its failure to act on petitioner's request results from its policy of refusing to give emergency aid or to duplicate stolen checks, that without the issuance of a duplicate grant of $395.00, petitioner and her children face exhaustion of their food supply and eviction from their rented home.

A New York Divorce Lawyer said that CPLR 7804(e) directs that 'The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court. The respondent shall also serve and submit with the answer affidavits or other written proof showing such evidentiary facts as shall entitle him to a trial of any issue of fact.' Despite those explicit and mandatory provisions and despite the fact that Article 78 procedure 'is exactly analogous to summary judgment', respondent has contented himself with serving an answer denying some allegations, denying others on information and belief, and raising four affirmative defenses, but has filed neither transcript nor answering affidavit.

A Manhattan Family Lawyer said that although the petition raises the broader question whether there was in fact a loss or theft, it is evident from petitioner's brief and particularly from the arguments advanced in relation to the class action issue, that the question which petitioner seeks to have determined is the narrower one stated at the beginning of this decision:--whether respondent has discretion as a matter of policy and without regard to the facts to refuse a special grant.

A New York City Family Lawyer said the limitation by petitioner's brief to the narrower question has important bearing on whether the proceeding may be maintained as a class action. So limited, the issue becomes not whether respondent has determined on substantial evidence that petitioner and her children are not destitute or that no loss or theft occurred, but whether respondent's refusal as a matter of policy to consider the facts is impermissible under governing statutes and regulations.

Furthermore, a judgment in favor of all members of the class (persons denied a special grant by reason of respondent's policy refusal to consider their requests on the facts) 'could not, of course, prejudice the interests of any members of the class',

The strongest arguments against sanctioning a class action in this case are (1) that Article 78 proceedings are intended to be summary in nature and should not, therefore, be encumbered with the additional policy considerations which the classification device involves, and (2) that in light of the doctrine of Stare decisis no benefit will be derived from a class action judgment in this case. There may be Article 78 proceedings in which, because of the urgency of the situation at hand and the difficulty of fairly protecting the interest of nonparty members of the class, a court may as a matter of discretion reject class treatment of the proceeding.
While 'stare decisis furnishes almost the same advantages as a class action', Weinstein, Revision of Procedure: Some Problems in Class Actions, 9 Buffalo L.R. 433, 446, there is an important difference: '* * * the Stare decisis doctrine is an elastic one allowing the litigant to challenge the soundness of an outstanding decision whereas, under the doctrine of Res judicata, the decision is binding even though it is plainly wrong', It is precisely this difference which impels petitioner's having brought this proceeding as a class action. Petitioner's supporting affidavit and brief state that the problem is a continuing one and that respondent continues to litigate the issue despite decisions adverse to his policy. Respondent has not controverted those statements.

The issues before the Court present a classic case for abstention. It is for the state courts, in the first instance, to pass on the program which the New York Department of Social Services has formulated as the best means of disbursing its large but finite funds.'

Federal court abstention is a mark of respect for the position of state courts in our federal-state system, not a Sword of Damocles to be held over the head of the state judge to whom the issue at hand is then presented, and any argument in the latter vein is wholly improper.
Turning now to the merits of the proceeding, the court notes first that respondent's reliance upon chapter 184 of the Laws of 1969 was rejected by the Appellate Division in a case. Moreover, since the Borders decision the flat grant system established by chapter 184 has been revised by the legislature as a result of the Supreme Court's decision in another case where it was made clear that while a state may use its Own funds in any way it chooses providing it violates no provision of the Constitution, it is a federal question whether a state program for expenditure of Federal monies conforms to the requirements of the Social Security Act. [67 Misc.2d 695] Reacting to that decision, the New York legislature amended both the flat grant provisions of Social Services Law § 131--a and the declaration of standards in Social Services Law § 131, the latter by the affirmative direction, in subd. 3, that
The legislature hereby declares its intent to make provision for the state to meet all necessary federal requirements under the social security act and therefore revises appropriate sections of the social services law by this act to carry out such intent.

It is, thus, clear that New York's legislature has opted to conform to the federal system. The validity and interpretation of any rule of the State Board of Social Welfare, regulation of the Department of Social Services or policy of the County Commissioner of Social Services is, therefore, governed by the Constitution of the United States, the Social Security Act and regulations of the United States Department of Health, Education and Welfare adopted under that Act, the New York State Constitution and the Social Services Law. Indeed the State Department of Social Services has expressly so recognized in 18 NYCRR § 352.2(c) quoted above, which authorizes the making of a duplicate grant 'because the cash has been lost or stolen' but states that such duplicate allowance is not reimbursable by the State. In summary, respondent's policies must conform to federal standards even though it be wholly county funds that are expended, because the legislature has authority under the State Constitution to mandate such expenditures upon the county and has declared the eligibility for public assistance must conform to applicable federal requirements.

Viewed in this context, neither respondent's stated policy nor the state's effort to define the 'emergency assistance' provided for in Social Services Law § 350--j so as to exclude 'destitution * * * due to loss, theft or diversion of a grant already made' can be sustained.
Section 350--j provides in pertinent part as follows: 1. Any inconsistent provisions of this chapter or of any other law notwithstanding, 1 so long as federal aid is available therefor, a social services district shall provide emergency assistance as herein defined to persons eligible, including migrant workers with families; 2. The term 'emergency assistance' means aid, care and services furnished for a period not in excess of thirty days in any twelve month period, in the case of a needy child under the age of twenty-one who is living with a person related to him by blood, marriage or adoption who is eligible to receive aid to dependent children on his behalf pursuant to provisions of this chapter and the rules of the board and regulations of the department; 3. Emergency assistance to needy families with children shall be provided in accordance with the rules of the board and regulations of the department for children who are without available resources, and when such assistance is necessary to avoid destitution or to provide them with living arrangements in a home, and such destitution or such need did not arise because such children or relatives refused without good cause to accept employment or training for employment.

It follows that 18 NYCRR § 372.2(e) insofar as it seeks to exclude from eligibility for emergency assistance those whose destitution arises through theft or loss is invalid, and that since Social Services Law § 350--j mandates emergency assistance by the county in all destitution cases, respondent's policy of denying such emergency assistance as a matter of discretion and without reference to the facts is likewise invalid. It is, therefore, unnecessary to consider petitioner's further argument that § 352.2(c) of the Regulations which permits duplication of a lost or stolen grant, is not merely permissive but mandatory. If it be assumed that that provision is simply permissive in cases not involving destitution, it is nonetheless true that in cases involving destitution respondent must perform the duty enjoined upon him by Social Services Law § 350--j and consider such applications for emergency assistance on their facts.
Though as noted above, respondent has served no answering affidavit, summary judgment simply directing issuance of $395.00 in emergency assistance should not be granted since the facts concerning the claimed loss or theft are exclusively within petitioner's knowledge. Rather than direct a trial of the factual issue which respondent should have determined in the first instance, the court will, following a procedure akin to that suggested in a case, direct that respondent, within five days after service upon him of a copy of the judgment to be entered hereon, pay to petitioner $395.00 in emergency assistance subject, however, to respondent's right to reimburse himself for such payment out of future sums payable to petitioner should it be determined by respondent after consideration of the facts (and be affirmed on fair hearing and on Article 78 review if sought by petitioner that destitution within the meaning of Social Services Law § 35--j and 18 NYCRR § 372.2 as above limited has not been established.

Here in Stephen Bilkis and Associates, we help those parents who are longing for their children, our Nassau County Child Custody Lawyers will help them obtain the custody over their children. For other cases which involve family issues, our Nassau County Family Attorneys are here to serve you.

Respondent's Placement Lapses at New York State Division of Youth During Proceedings

January 18, 2016,

A New York Family Lawyer said in this proceeding under Family Court Act article 10, the New York City Corporation Counsel, on behalf of the Administration for Children's Services, seeks leave of the court to allow the respondent's placement with the Commissioner of Social Services [CSS] to lapse, in light of the respondent's placement with the New York State Division for Youth [DFY].

This court placed the respondent, now fourteen years old, with CSS on October 22, 1991. The Commissioner of Social Services brought a neglect proceeding against the respondent's father, after the father left respondent in the care of a girlfriend without making any provision for the child's care. Respondent's mother died in 1987. CSS worked with the father for the respondent's return to his care for four years, during which time the father intermittently was incarcerated. In the summer of 1995, the 13 year old respondent ran away from foster care and took up residence with his father.

A New York Divorce Lawyer said in September 28, 1995 the respondent's father took the respondent with him to steal an automobile from the parking lot of a Nassau County station of the Long Island Railroad. Both were arrested. The father was convicted of grand larceny and remains incarcerated. A delinquency petition filed against the respondent resulted in an admission to unauthorized use of an automobile [Penal Law 165.05[1]]. The Family Court of Nassau County transferred the delinquency proceeding to this court for disposition.

A Nassau County Family Lawyer said that SS is required to file an extension of placement petition at least sixty days prior to the expiration of the child's placement in foster care [Family Ct. Act 1055[a]]. The anniversary of Peter R.'s foster care placement was October 22, 1996. Placement with CSS has been temporarily extended pending the decision of the Corporation Counsel's application. The facility notes that the agency which manages Berkshire Farm is attempting to find a foster care family for the respondent, and recommends that the respondent "remain in [CSS'] foster care system".

A Staten Island Family Lawyer said the Corporation Counsel urges this court to allow placement with CSS to lapse, not because the respondent is no longer in need of foster care, but because "DFY placement without a CSS placement does not, in any way, diminish the protection afforded children" in CSS foster care who are found to be delinquent. Corporation Counsel notes that the Family Court in a delinquency proceeding has the authority simply to continue the delinquent child in an existing foster care setting.

The common features of placement under Family Court Act articles 3 and 10 lend a syllogistic appeal to the Corporation Counsel's argument. Moreover, duplication of judicial and executive efforts should be avoided in the interest of economy of resources. This argument especially is attractive in a case such as this, where it appears that there is little hope of the respondent being discharged from foster care to the care of his father. Nonetheless, the court finds that to discontinue the foster care placement under article 10 would disadvantage the respondent and deprive him of statutory protections to which he is entitled.

The Commissioner of Social Services has responsibility for both neglected and delinquent children placed with CSS by the Family Court, and must provide services to both categories of children, as well as to children found to be persons in need of supervision [PINS], destitute or abandoned. Moreover, under federal mandate, CSS must provide services to prevent such children from coming into or remaining in foster care unnecessarily. Consequently, the Family Court must consider the efforts made to prevent or to remove the need for placement under both articles 3 and 10 of the Family Court Act. These similarities, however, do not result in an equivalence of the conditions of placement with DFY and CSS, even in a foster care setting.
On the most basic level, foster care placement under Family Court Act article 10 is distinct from DFY placement under article 3, since in the former there is never the possibility of placement in a restrictive setting. A child in foster care who is adjudicated delinquent may be placed in a setting more restrictive than a foster boarding home or group home, if such placement is the least restrictive alternative consistent with the respondent's needs and the safety needs of the community.

As the Corporation Counsel points out, where the safety of the community permits and the respondent's needs require placement, an adjudicated delinquent may be placed directly with CSS. However, in such placements even though the court specifies that the delinquent child be placed by CSS with a particular agency or class of agencies, the specifics of the placement are entirely within the discretion of the Commissioner, and the court lacks the authority further to condition or to restrict the placement.

A delinquent child may be placed into foster care by DFY under several circumstances. During the period of placement, DFY may conditionally release the child under DFY supervision. "If, in the opinion of [DFY], there is no suitable parent, relative or guardian to whom a youth can be conditionally released, and suitable care cannot otherwise be secured...", the child may be conditionally released to an authorized agency. Once the placement expires, if the safety of the community no longer requires that the respondent continue in placement, and the best interests of the child permit, the child is returned to the custody of the parents.

It is apparent from these statutes that once the child is placed with DFY or with CSS under Family Court Act article 3, the specifics of placement are within the discretion of the commissioners of one or the other agency, and are not subject to judicial review beyond the specific terms of the dispositional orders permitted by statute. There is no guarantee that Peter R. will be placed in a foster home setting within any specific period of time. History demonstrates a chronic shortage of foster homes, particularly for delinquents. The Social Services Law expressly recognizes that placement in agency boarding or group homes may be necessary, even though a more home-like setting is appropriate, because no qualified foster homes are available in a given district.

Upon a petition to extend placement under Family Court Act article 3, the respondent, the presentment agency, and the agency with which the child has been placed must be notified and have an opportunity to be heard. Extension is in the discretion of the court, which must consider whether reasonable efforts, consistent with the safety of the community, were made to make it possible for the respondent to return home.

Upon a petition to extend placement under Family Court Act article 10, in addition to the child and the agency, the child's parents and the foster parents also have a right to notice and to be heard. At such hearing, the court must consider whether there has been any change in the circumstances which gave rise to the child's placement in foster care; whether the child services plan prepared under Social Services Law § 409-e requires modification, and in what manner the plan should be modified; the extent to which the parents and the agency have complied with the plan during the placement period; and whether the best interests of the child would be served by an extension of placement. An extension of placement under article 10 depends upon the parents' present ability to care for the child and is determined by the child's best interests.

It is apparent that the Family Court has much more discretion under article 10, than under article 3, to review and determine the conditions of a child's placement in foster care. Moreover, the purpose of this review is to ensure that the needs of the child and of the child's family are met, so that the child is not continued unnecessarily in foster care. The legislature and the courts have recognized that a PINS child who needs treatment and supervision, differs from a delinquent child who needs treatment, supervision and confinement, and the statutory response differs accordingly. So also, the delinquent who no longer requires confinement or even DFY supervision must be treated according to present needs. If the respondent no longer requires confinement, treatment or supervision in a DFY facility, any extension of his placement should be according to standards for the continued care of neglected children, with the appropriate level of judicial oversight of agency efforts to re-unite the respondent with relatives, or otherwise to plan for the respondent's future.

Therefore, the respondent's placement under article 10 should be extended to permit the agency to continue efforts to develop familial resources for the respondent in anticipation of his discharge from placement with DFY.

Here in Stephen Bilkis and Associates, our Nassau County Family Lawyers will give you an advice which will be beneficial for your needs. We will make it a point that we will analyze your predicament to come up with a competent advice. For cases involving abuse and violence let our Nassau County Order of Protection Attorneys help you.

Court Rules on Issue Related to Private Placement Adoption

January 17, 2016,

A New York Family Lawyer said this private placement adoption action presents a number of intertwined legal issues that highlight the shortcomings of the private placement adoption statutes in New York State. The infant who is the subject of the case has now been in the home of the petitioners since February 21, 1998 without the benefit of a valid adoption consent from the parents or a currently valid pre-adoption certification order. The adoption agency that originally accepted custody of the child is no longer supervising this placement because it was not licensed in the state where the child was born. Additionally, the fees charges by the principals involved may not be entirely allowable under New York State law.

A New York Divorce Lawyer said that there is little statutory or caselaw guidance available to assist the court in unraveling these dilemmas, and few satisfactory remedies available for the obvious failures of those charged with caring for this child to follow the statutory requirements contained in the Domestic Relations Law. What seems apparent, however, is that along the way many purportedly well-intended people ignored the law, creating a situation that puts this adoption in jeopardy.

A Brooklyn Family Lawyer said that after an initial review of the adoption petition and the supplementary documents supplied by petitioner's counsel with his letter dated August 3, 1999 the court issued a decision identifying legal issues of concern.

A Bronx Family Lawyer said there has been no request by any of the principals involved for a testimonial hearing to further amplify the materials submitted. The court finds that the essential facts are not in dispute and that a hearing would not be likely to present additional information.

A review of documents filed supplementing the adoption petition indicates that while petitioners were found to be qualified adoptive parents pursuant to Domestic Relations Law § 115-d by order of Monroe County Surrogate's Court dated 1/13/94, at the time this petition was filed in the Family Court on June 10, 1999 the petitioners were no longer certified as qualified adoptive parents. The original certification order was extended by Surrogate's Court until 2/1/96 when it lapsed.

In an effort to determine why this petition was filed some 16 months after placement and after the expiration of order "re-certifying" the petitioners as qualified adoptive parents, the court requested additional information from counsel for the petitioner. A law guardian was also assigned for the child.

In response to the court's request for more information, a letter dated August 3, 1999 with attachments was received from petitioners' attorney. In that letter, counsel argued that pre-certification was not required at the time of filing the petition for adoption, but only at the time possession of the child occurred.

It appears that the birth mother then agreed to execute a consent for a private placement adoption by the petitioners and that Friends in Adoption, Inc. agreed to give up custody of the child so that this could occur. A consent was signed by the mother on March 6, 1998 a certified copy of which was provided with the petition. Additionally, a document entitled "waiver of notice by putative father or by legal father" was signed by the other on February 24, 1998. A non-certified copy of this document was also provided with the petition.

Ultimately, both Maine and New York interstate compact administrators approved the transfer of the child to New York State effective March 16, 1998 3. This was close to a month after the child was placed with the petitioners.

Petitioners' counsel has also submitted his fee documentation. While the fee is higher than need be because the petition was re-filed in Family Court, there do not appear to be any questionable entries. Finally, the financial disclosure affidavit of the petitioners [dated 6/1/99] lists $175.00 for "car maintenance for birth mother."

Domestic Relations Law § 115(1)(b) requires that persons seeking to commence a private placement adoption "shall, prior to the submission of a petition for such adoption and prior to any transfer of physical custody of an adoptive child, be certified as a qualified adoptive parent."

Additionally, proposed adoptive parents are required to either file their adoption petition or an application for temporary guardian within ten days of accepting physical custody of a child for private placement adoption. DRL § 115-d. While there is no specific penalty for failure to comply, clearly the intention is to have prompt court supervision of such placements so that children will not be placed in de facto custody arrangements in homes where they may be unsafe.

The clear intention of these two provisions is that there be a valid certification in place when the adoption petition is filed and that the petition, or request for guardianship, be filed within ten days of placement of the child. The requirements for certification include information that experience shows is likely to change over time, including family circumstances, health, and income, as well as criminal and child abuse registry record checks. DRL § 115-d.

The dilemma is what if any penalty is appropriate when adoptive parents fail to comply with the certification requirements. The range of responses by courts for violation of adoption laws goes from the extreme measure of dismissal to financial sanctions to threats of disciplinary action against attorneys who fail to comply with the certification laws.

In this case, the court has assigned a law guardian for the child, who has not presented any safety concerns regarding petitioners' home or circumstances. By all preliminary reports it is in the child's best interest for this adoption to proceed. With this in mind, the court finds that dismissal would not be appropriate.

Domestic Relations Law § 115-b establishes procedures for judicial and extrajudicial consents from parents in private placement adoptions. Judicial consents taken by a judge in New York State become irrevocable when executed. DRL § 115-b(2). A consent executed before a judge in another state is permitted if a transcript showing compliance with the statute is also submitted. DRL § 115-b(2).

In this case the birth mother appeared before a judge in Maine and executed a document entitled "Consent of Petitioning or Non-Petitioning Parent." The child's father signed a "Waiver of Notice" before a notary public.

No transcript has been submitted showing that the Maine Judge of Probate complied with the requirements of DRL § 115-b; thus, it may not be considered a judicial consent. The mother's consent, however, fails to comply with the requirements of DRL § 115-b(4) for extrajudicial consents in several important respects.

Similarly, the document executed by the father fails to comply with the Domestic Relations law and is not sufficient to qualify as an extrajudicial consent under DRL § 115-b(4). Nor is it sufficient to waive his right to notice as the father of an out-of-wedlock child under DRL § 111-a(5), which requires the waiver to be acknowledged in the same manner as a surrender executed under Social Services Law § 384.

As a result, this child is presently in the petitioners' care without any valid consents or waivers from the parents. Since counsel for petitioners has recently written the court by letter dated 11/19/99 that efforts are being made through Friends in Adoption to locate the birth parents this case will be scheduled for court appearance thirty days from the date of this decision to address this issue and to schedule an expedited hearing if needed.

New York State law narrowly defines the circumstances when a fee may be charged for the placing out of a child for adoption. A violation of these requirements is a criminal offense. SSL § 389(2).

Only authorized adoption agencies may charge a fee "for the reasonable and necessary expenses" of an adoptive placement. All other agencies or persons are prohibited from requesting or accepting a fee for assisting a birth parent to place a child for adoption. SSL § 374(6). Adoptive parents are permitted to pay for reasonable medical expenses connected with the birth or "other necessary expenses incurred by the mother in connection with or as a result of her pregnancy or the birth of the child...." SSL § 374(6).

The fees charged by Friends in Adoption totaling $5,000 include inquiries made by birth parents about adoption.

Friends in Adoption does not bill adoptive parents on an hourly rate. In this adoption, the court will not allow fees relating to the original plan of agency adoption, because that plan required modification because of the error of the agency. Indeed, had this been an agency adoption the $5,000 fee would have been reasonable, since the agency would be charged with supervisory responsibilities. The only fees allowable are those charged for services provided to the adopting parent or to the birth parent directly relating to the adoption or birth of the child. SSL § 374(6). Under the circumstances here the court reduces the fee to $3,000 plus 500 for the agency registration. The remaining amount of $1,500 is to be refunded to the petitioners.

Finally, the petitioners list $175 paid to the birth mother for "car maintenance for birth mother." Social Services Law § 374(6) permits the payments to the birth mother of necessary expenses incurred "in connection with or as a result of her pregnancy or the birth of the child." No other expenses are allowable in New York State. In a case, the court disallowed reimbursement for an automobile down payment noting that the statute does not permit reimbursement for "each and every conceivable expense" incurred during the pregnancy.

Since it has not been demonstrated that the car maintenance expense related to the pregnancy, this expense is disallowed and must be refunded to petitioners.

In summary, the court finds that the petitioners should have been certified as qualified adoptive parents when this petition was filed in Family Court, but imposes no penalty. Counsel is advised that future failures to comply with adoption procedure law may result in financial sanctions and/or a referral for disciplinary action.

The court rules that the consent signed by the birth mother and the waiver signed by the father fail to comply with New York State law and schedules this case for thirty days from this decision to determine whether an expedited hearing is required.

The car maintenance expense of $175 paid by petitioners to the mother is disallowed and must be refunded by the mother to the petitioners.

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