New York Family Law Blog

The two appeals before this court, involving two different sets of children, raise questions relating to Social Services Law §§ 384-b(4)(c) and 384-b(6)(a). Because in each case the trial court entertained a different view of the constitutionality of those sections, we have chosen to consolidate these appeals and consider the conflicting claims of the parties in one opinion.
A New York Family Lawyer said that, in the first case, petitioner, the Cardinal McCloskey School and Home, appeals from an order of the Family Court, New York County, entered May 15, 1980, which dismissed its petition pursuant to Social Services Law § 384-b(4)(c) for an order terminating the parental rights of respondent, on the ground, inter alia, of her mental illness. The court, after a fact-finding hearing, concluded that there was clear and convincing proof of mental illness rendering respondent unable to provide adequate supervision and guidance to the children in the foreseeable future. However, following a dispositional hearing upon the consent of all counsel, the court extended the children's placement with petitioner, but dismissed the petition on the ground that §§ 384-b(4)(c) and 384-b(6)(a) were unconstitutional.

A New York Custody Lawyer said that, in the second case, the children, through their law guardian the Legal Aid Society, appeal from an order of the Family Court, Bronx County, entered November 15, 1979, which dismissed the petition of the Cardinal McCloskey School and Home pursuant to Social Services Law § 384-b(4)(c) seeking guardianship and custody of the children on the ground that the father, was unfit to care for them by reason of mental illness. The petition was dismissed after a fact-finding hearing at which the court found there was insufficient proof to support a termination of parental rights based on mental illness.

A Bronx Custody Lawyer said that, the court also dismissed as without merit an attack by respondent upon the constitutionality of §§ 384-b(4)(c) and 384-b(6)(a). Respondent father, cross appeals from the same order to the extent that the order fails to declare the underlying statute, Social Services Law §§ 384-b(4)(c) and 384-b(6)(a), unconstitutional.
The issue in this case is whether Social Services Law §§ 384-b(4)(c) and 384-b(6)(a) is constitutional.

In each of the appeals before this court, the constitutionality of Social Services Law §§ 384-b(4)(c) and 384-b(6)(a) is challenged insofar as those sections deal with mental illness. This issue will safeguard against successive trials for the same offense form a cornerstone of our jurisprudence and may be invoked by the young who face institutionalization as well as by adults subject to incarceration be explored before proceeding to other issues raised on the two appeals.

In the first case, the Judge held Social Services Law §§ 384-b(4)(c) and 384-b(6)(a) unconstitutional. After reviewing all the evidence and concluding that "the respondent is mentally ill and will be for the foreseeable future", he reviewed respondent's challenge to the constitutionality of those sections. Unable to conclude that the statute was vague, he found, however, that it represented an excessive State intervention into respondent's constitutionally protected rights; that although the State had a substantial interest in providing children with a permanent suitable home and thus could satisfy the "strict scrutiny" test the statute exceeded the State's legitimate interest by compelling termination of parental rights. Expressing his opinion that adoption was not the best alternative, he implied that the statute provided for "no fault" termination of parental rights by depriving parents of such rights solely on the ground of mental illness. He denied the petition and extended the children's placement for one year.
With regard to the first case, the Attorney General asserts that no party had standing to raise the constitutional issue and that; therefore, the Family Court improperly decided a hypothetical issue. In order to establish standing, a party must demonstrate that he is possessed of a right which the statute infringes, and that he is within the class of persons affected by the statute. It appears that the natural mother's right to raise her own children is infringed by the statute, and that, as a mentally ill parent, she is within the class of persons affected by the statute. Hence, she did have standing to raise the constitutional issue, and the court properly addressed itself to the issue.

As to the second case, a Bronx Family Lawyer said the Attorney General asserts that the father lacks standing to raise the statute's constitutionality, but it appears that Samuel does have standing, because as does respondent in the first case, the substantive right to remain the parent of his children is threatened. The Attorney General also contends that Samuel is precluded from raising the constitutionality of the statute, as he did not raise it below. However, the record discloses that Samuel raised the issued during the opening and closing proceedings of the hearing. Finally, the Attorney General objects that the constitutional issues need not be reached as the complaint was dismissed for insufficient proof. However, appellants are also challenging the finding of insufficient proof, and if they are successful, the constitutional issue will be important. Moreover, since the issue must be treated in the first case, and it is likely that the issue will appear again in other matters, this court will review the issue in some detail.
The court holds that the challenge to the statute's constitutionality is without merit. (1) The statute's challengers correctly assert that a parent's right to raise his child is a fundamental liberty enjoying strong constitutional protection. Furthermore, they accurately characterize termination of parental rights as one of the most severe forms of deprivation that can be imposed upon a parent, and that only the most countervailing interests can outweigh the rights abridged by termination. Indeed, New York courts have consistently followed the United States Supreme Court's guidelines and have held that the State cannot sever family ties without a showing of abandonment, neglect, unfitness or other extraordinary circumstances; and Social Services Law § 384-b(4) sets forth strict standards to apply in those few situations where parental rights can be terminated. Therefore, the statute does not violate the Constitution merely because it provides for termination of parental rights.

(2) The statute's challengers claim that the statute violates equal protection by treating mentally ill parents differently from other parents and by failing to provide for long-term foster care and a dispositional hearing. Although the statute does treat mentally ill parents differently from other parents, this distinction does not violate the rights of mentally ill parents to equal protection unless it is arbitrary and capricious. In order to ascertain whether the law violates equal protection standards, the court must examine: A. The character of the classification; and B. the individual interests affected; and C. The governmental interest involved.

The class created by Social Services Law §§ 384-b(4)(c) and 384-b(6)(a) does not include all mentally ill parents, but only those who, by reason of their infirmity are now and in the foreseeable future so unable to care for their children that their children would be in danger of suffering neglect if returned to them. Therefore, the difference in treatment is not between all mentally ill and all "sane" parents, but only between parents so mentally ill that they cannot care for their children, and all other parents, whether mentally ill or not, who can. The individual interests affected are those of the parents to raise or even maintain contact with their natural children, and the children's need for a permanent and secure home which can provide them with proper care and education Social Services Law § 384-b The State also has a substantial, if not compelling interest in ensuring that children are maintained is such homes. The statute balances the interests of the parents, children and State by requiring a clear and convincing quantum of proof that the parent's mental illness precludes him from properly caring for his child. Therefore, the statute does not violate equal protection, as it reasonably promotes a substantial State interest in the welfare of children and rests upon real and substantial differences between such mentally ill parents and all other parents, fairly balances all the parties' interests and treats all members of the class in a similar manner.

The challenging parties further contend that the statute violates equal protection by presuming that mentally ill parents are unable to care for children, thereby resulting in "no-fault termination" of parental rights. However, as previously discussed, the statute does not characterize all mentally ill parents as unable to care for their children; rather, it provides a careful test for ascertaining whether a particular parent's mental illness renders him unable to care or plan for the child. The statute, by focusing on conduct, does not create an irrebuttable presumption of parental incapacity to care or plan for their children.

The challengers assert that the statute places an unfair burden on them by denying them the agency's diligent efforts, as provided for in the neglect statute. However, in every instance the agency must make diligent efforts to strengthen the family relationship from the moment the child is placed. A separate showing of diligence with mentally ill parents would serve no purpose, as those mentally ill parents falling within the statutory definition would still not be able to care or plan for their children, notwithstanding agency efforts.

The statute's failure to provide for a separate dispositional hearing, as it does in the neglect statute, does not violate equal protection, as it is based on reasonable differences between the two situations. As the Attorney General points out, there is a different scope of proof at a neglect fact-finding hearing than at a mental illness hearing. Once parental neglect is determined, the dispositional phase allows the parent an opportunity to conform to established standards of parental conduct so as to prove fitness to care for his children in the foreseeable future. In connection with the termination of parental rights on ground of mental illness, the court must find that the parent is presently and for the foreseeable future unable to care for the child because of mental illness. In this situation, the impossibility of the child's return to the natural family is already decided once a finding of such mental illness is made, and a separate dispositional hearing is not required. None of the provisions of the statute unreasonably treat mentally ill parents differently from other parents, and the statute meets constitutional equal protection standards.

(3) The statute's challengers claim that the statute violates procedural due process guarantees by failing to provide for a separate dispositional hearing, and by allegedly requiring automatic termination whenever a parent is found mentally ill. Procedural due process is applied flexibly, and calls for procedures appropriate to the situation. (4) The challengers argue that the statute is unconstitutionally vague. Vagueness is addressed to basic concepts of fairness. In order to avoid a finding of vagueness, a statute must: A. Provide fair notice of the proscribed behavior; and B. Set clear enough standards so that the statute will not be enforced in a subjective or arbitrary way; and C. Not be so overbroad as to result in an inhibition of constitutionally protected activity.

The challengers claim that the statutory terms "foreseeable future," "mental illness," "danger of becoming neglected," and "proper and adequate care," are so devoid of meaning as to render the statute unconstitutional. However, "foreseeable future," although not a precise time limit, does set forth a standard commonly understood by medical professionals and laymen. Furthermore, the flexibility of the term offers mentally ill parents greater protection than would a precise time limit because their failure to recover within a precise time limit would cut off their parental rights, despite the real possibility of recovery sometime beyond the time limit.

Second, "mental illness," although subject to varying shades of meaning, is referred to in the statute as a disorder or impairment affecting parental conduct to such an extent that the parent cannot care for the child. Such a definition, by focusing on parental conduct, avoids the possible challenge of imprecision. Third, the phrase "danger of becoming a neglected child" is explained by reference to the definition of neglect contained in Social Services Law § 384-b(7)(a) and Family Court Act § 1012(f)(i). The phrase "proper and adequate care" also receives its meaning through the statutory definition of neglect, which provides objective unambiguous criteria by which neglect is determined.

Therefore, the statute, while sufficiently elastic to protect parental rights, is not so indefinite as to deprive parents of fair notice of the behavior affected. Similarly, the statute sets forth clear enough standards so that enforcement will not be subjective or arbitrary. The statute does not infringe upon constitutionally protected activity by a parent to plan or care for a child. Mentally ill parents are not punished for their mental illness per se as the challengers assert; rather, only mentally ill parents who cannot care for their children are affected, and the neglect of children is not constitutionally protected activity.

(5) Finally, the challengers claim that the statute violates substantive due process by penalizing status rather than conduct, and because it requires automatic termination in every case. However, as previously discussed, it does not penalize a parent's mentally ill status. Rather, it terminates a mentally ill parent's parental rights only when the illness renders the parent unable to provide a child with the minimum requirements of care. This test focuses on a parent's conduct or ability to engage in certain conduct, and does not penalize a parent for being mentally ill. Indeed some mentally ill parents have been found fit to care for their children.

Second, the statute does not require automatic termination, as previously discussed. Only when a parent is found, by reason of mental illness, unable to discharge his duty of care and planning for his child, can his parental rights be terminated. Therefore, the statute does not violate substantive due process standards, as there is a compelling State interest in seeing that children are permanently placed with qualified persons who could perform the parental function of care and planning for the child, and the statute is drawn as narrowly as possible to effectuate that purpose.

Accordingly, Social Services Law §§ 384-b(4)(c) and 384-b(6)(a) are not unconstitutional.
The fact that the statute does not provide for long-term foster care does not render it is violative of equal protection standards. If you want to question the constitutionality of a certain statute, seek the representation of Bronx Family Attorney and/or Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

Two petitions were filed by the Administration for Children's Services (ACS) in May 2010 on behalf of three-year-old child, and five-year-old daughters of Respondent. The petition on behalf of five-year-old also named the child's mother, as co-respondent, and the petition on behalf of three-year-old child named her mother, as co-respondent. The allegations in the petitions as to both children are identical. A New York Family Lawyer said that, the petitions allege that both children are less than eighteen years of age and, their father, Respondent, has sexually abused them, as defined in Family Court Act § 1012 (e) (iii), and has impaired their physical, mental or emotional conditions, or placed them in imminent danger of such impairment, as a result of his failure to exercise a minimum degree of care in providing each of them with proper supervision or guardianship, or by any other acts of a similarly serious nature requiring the aid of the court within the purview of the Family Court Act § 1012 (f) (i) (B).

A New York Custody Lawyer said that, the fact finding hearing was commenced January 24, 2011 and was completed on March 23, 2012. ACS called two witnesses. A non-subject child, testified via two way circuit video from a residential treatment center in Syracuse, New York. The ACS Caseworker also testified. Respondent testified on his own behalf.

A Nassau County Family Lawyer said that, petitioner ACS asks that the court, pursuant to Family Court Act § 1012 (e) (iii) and§ 1012 (f) (i) (B), find that the subject children are derivatively neglected or abused children based on Respondent's 2001 conviction of rape in the second degree of his two half-sisters, then ages fourteen and seven years, his registration as a level three sex offender, and the testimony of non-subject child who alleged that Respondent committed sex offenses against her around 2006-2008. The Attorney for the non-subject child joins in ACS's application. Respondent argues that the court must dismiss the instant petitions based on ACS's failure to establish derivative abuse or neglect of the two subject children or to present evidence to show that Respondent has harmed the children or placed them in substantial risk of harm. Further, Respondent asserts that the testimony of the thirteen-year-old child as to his alleged sexual touching of her was not credible and could not be used as a predicate offense for a finding of derivative child abuse or neglect.
The issue in this case is whether the subject children should be declared as derivatively abused and neglected.

The court's authority to enter derivative findings is found in Family Court Act § 1046 (a) (i), which provides that "proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent." Section 1046 (a) (i) authorizes the family court to extend " its protective cloak around a child' " before injury occurs. A Nassau County Custody Lawyer said this evidentiary rule recognizes "when there is a finding that one child is abused, experience shows that there is a substantial risk of future abuse to the other children" holding that the death of 19 month old infant due to non-accidental scalding burns constituted child abuse by the respondent mother and rendered his five-year-old surviving sibling, who had not suffered any injuries, a derivatively abused child.

The courts have sustained derivative findings based on predicate offenses by respondents against biological children, legally-related children and non-related children finding respondent's commission of sexual abuse against adopted stepdaughter, who lived with him, a basis for derivative neglect finding as to his birth daughters grandfather's conviction by guilty plea of rape in the second degree of his 14-year-old daughter served as predicate offense in finding derivative neglect of his grandchildren; respondent sexually abused female children in a day care center based in his home, which formed a predicate offense for a derivative neglect finding as to his twin sons, one of whom was in the home when respondent sexually abused the other children; appellate court upheld a derivative neglect finding as to the sons of respondent based on his sexual abuse of his 16-year-old sister-in-law, who resided with him for four months and for whose care he was legally responsible. Thus, derivative findings of child abuse and neglect are powerful tools and the due process rights of parents and children require an individualized determination of the actual harm or imminent danger of harm that the prior offensive conduct imposes for the respondent's children or other children currently in his care.

The courts have developed the following framework for analyzing and determining whether a derivative finding is warranted: 1) a predicate offense of the abuse or neglect of a child is established; 2) the offense "was not remote in time"; 3) the prior offense was "serious or involved a course of abusive or neglectful behavior"; and 4) "the conduct demonstrated a fundamental defect in respondent's understanding of the duties and obligations of parenthood".
In cases alleging derivative abuse based on a predicate sex offense, the statute requires the court to find first that the respondent "committed (or knowingly allowed to be committed) a felony sex offense" respondent's rape of eight year old child of his paramour formed predicate offense for derivative finding of severe abuse as to his non-injured biological child). The statute does not specify the person against whom the felony sex offense must have been committed. Moreover, for the purpose of establishing a predicate offense, the statute does not require that the respondent be a parent or other person responsible for the care of the first child victim holding that respondent's victimization of nine-year-old daughter of maternal cousin, for whom he was not legally responsible, still provided a "legal basis for a finding of derivative neglect of his own two children," reversing family court's dismissal of the derivative neglect petition. The petitioner has the burden of proof and must establish the elements to support a derivative finding by a preponderance of "only competent, material and relevant evidence".

This court does not find by a preponderance of the evidence that the testimony of the non-subject child established acts of sexual abuse by Respondent. The child was vague as to the times and circumstances of the three alleged incidents. She testified that her siblings were in the rooms with her when all three incidents occurred, but none of them awoke. Specifically as to the incident in 2010, she stated that four siblings were asleep in one bed with her, that they changed positions during the night, and that Respondent put his penis on her buttocks. She stated, however, that none of her siblings awoke or witnessed the alleged molestation and that she did not cry out. The court finds this description implausible and incredible. Further, the ACS Caseworker failed to interview or makes any attempt to interview any of the non-subject child’s siblings or her mother to investigate or confirm the allegations. Nor did the Caseworker present any evidence that a Family Court or Criminal Court action had been brought against Respondent based on her allegations. The non-subject child stated she did not report these alleged events for two years because she feared Respondent. However, she also testified she was not afraid of him, he had never threatened her and she had not had contact with him for about two years. Accordingly, the court finds that the testimony of the non-subject child is not sufficient to establish by a preponderance of the evidence that Respondent committed an act of sexual abuse against her. The court also finds that the testimony of the ACS Caseworker to be inaccurate as to many facts to which he initially testified nor was his investigation thorough as to the non-subject child’s allegations of Respondent's sexual abuse. ACS has proven by a preponderance of the evidence, and Respondent has admitted to, his 2001 conviction for felony sex offenses committed against his minor half-sisters, offenses which constitute acts of abuse defined in Family Court Act § 1012 (e) (iii) and establish a predicate offense of child abuse.
To sustain a derivative finding based on the 2001 conviction, the predicate offense must be analyzed first as to its "time proximity" to the birth of the subject children and the initiation of the instant proceedings. The court also must analyze relevant time frames and the current circumstances of Respondent to determine whether the conditions that led to the 2001 conviction still exist. The relevant time frames in this matter include Respondent's 2001 conviction, his release from prison in 2005, and his completion of parole conditions in 2007. The child was born in 2009 and the other in 2007. The court finds that the egregious nature of the crimes that formed the basis for Respondent's conviction in 2001, the closeness in time between Respondent's release from prison and the birth of his daughters, and the initiation of these proceedings in 2010, are sufficient to support a finding of "time proximity". However, the evidence that establishes a predicate offense does not by itself establish a prima facie case of derivative neglect or abuse.

The dispositive question remains whether the defective conditions that led to Respondent's sexual abuse and rape of his minor half-sisters and his designation as a level three sex offender continue to exist to the extent that " the nature of the direct abuse or neglect, notably its duration, the circumstances surrounding its commission and whether, on the whole, it can be said to evidence fundamental flaws in the respondent's understanding of the duties of parenthood' " are sufficient to serve as a basis for this court's finding of derivative abuse and/or neglect. A finding of derivative neglect is warranted where the evidence establishes that "the abuse by respondent demonstrates such an impaired level of parental judgment as to create substantial risk of harm for any child in his care'. Further, such a finding is justified where the abuse or neglect was repeated was perpetrated on multiple victims or was accompanied by evidence that other children were nearby when the abuse occurred.

Based on the court's finding that the testimony of the non-subject child was not credible, the court finds that Petitioner ACS has not demonstrated by a preponderance of evidence that the sexual offenses committed by Respondent in 2001 were repeated, nor has ACS presented any evidence that Respondent has harmed his daughters. To warrant a derivative finding in this matter, ACS must demonstrate that Respondent's 2001 conviction is "a reliable indicator" that the subject children's "physical, mental or emotional condition is in imminent danger of becoming impaired". ACS has established the fact of Respondent's conviction and status as a level three sex offender but these facts by themselves do not establish a presumption that he poses a danger to his children.

In this matter, Respondent testified candidly and did not deny his guilt for his sex offenses against his half-sisters, for which he was arrested in 2001 when he was 22 years of age. He acknowledged the deficiencies that led to his conviction. Respondent stated in uncontradicted testimony that he engaged in and completed a sex offender treatment program while incarcerated and complied with the conditions of his post-release supervision, which expired in January 2007. These circumstances are clearly distinguished from those in which the courts found a continuing substantial risk of harm by a registered sex offender. The court finds that ACS's case rests on Respondent's 2001 conviction and status as a registered sex offender, and these facts, standing alone, cannot serve as the sole basis for a derivative finding of neglect and/or abuse in this matter.

Accordingly, the court finds that Petitioner has failed to prove by a preponderance of the evidence derivative neglect or abuse by Respondent as to the subject children, and dismisses the petitions.

When there is a finding that one child is abused, experience shows that there is a substantial risk of future abuse to the other children. There is a need for the legal services of a Bronx Abuse and Neglect Attorney and/or Bronx Order of Protection Attorney at Stephen Bilkis and Associates, in order to protect the child from further harm. Call us.

A Bronx Order of Protection Lawyer said that, the petitioners, pursuant to Article 78 CPLR, seek relief in the nature of prohibition restraining the respondent court (Family Court) from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing. Relief pursuant to Article 78 CPLR is an appropriate remedy upon such claim. Movant has properly sought such relief here (CPLR 506(b)).

A New York Family Lawyer said that, the infant petitioner was charged with the commission of an act which would be a crime if committed by an adult. A fact-finding hearing was commenced thereon and there was a failure of proof when the complaining witness admitted she could not identify the infant. The record submitted establishes that there may have been a witness who might have supplied the necessary identification, but that the witness did not appear and indicated that he would not obey a subpoena to compel his attendance. In addition, it appears that the Court viewed, but without the objection of the attorney for the infant petitioner, probation reports and other records concerning a prior 'Person in Need of Supervision' petition brought by the infant petitioner's mother. Thereupon, the Court declared a mistrial and set the case down for a new hearing upon the expressed grounds 'because of failure of necessary witness to respond to subpoena and because of Judge's perusal of other records of respondent' (the infant petitioner herein).

The issue in this case is whether the Family Court should be restrained from conducting further proceedings against the petitioning infant upon a claim that former jeopardy is a bar to a subsequent hearing.

New York Custody Lawyer said the unsuccessful hearing (tantamount to a trial) is a bar to subsequent prosecution for the same acts. The constitutional safeguards against successive trials for the same offense form a cornerstone of our jurisprudence and may be invoked by the young who face institutionalization as well as by adults subject to incarceration. In a proper case, procedural requirements in a criminal action might be modified to allow the Family Court of the State of New York to exercise its expertise in handling problems concerning the young or to provide professional assistance to resolve underlying problems affecting their lives. However, a Queens Family Lawyer said there is no legal reason which would warrant permitting successive trials until such time as the trial judge is satisfied that there is a sufficient quantum of proof to sustain a finding against an infant.

Moreover, the viewing by the Judge of other court records concerning the infant petitioner was in no manner prejudicial to his cause. Not only did petitioner's counsel voice no objection to the perusal in the course of the Court's discussion of a possible further adjournment of the hearing, but the said attorney actually furnished some of said records himself. Furthermore, the probation report involved did not concern the allegations of the petition before the Court. In addition, the Judge stated on the record that, without any further witnesses for the prosecution, the petition would have to be dismissed for lack of clear identification. Accordingly, there was no manifest necessity or good cause shown as the basis for a mistrial and for causing the infant petitioner substantial prejudice by placing him in jeopardy again. A Queens Custody Lawyer said at the most, the matter might have been adjourned once more to afford the complainant or the Court an added opportunity to secure the attendance of the claimed witness or pending final disposition of the previous 'Person in Need of Supervision' petition, but it was manifestly improper to declare a mistrial under the circumstances here presented.

Accordingly, the court held that, for the reasons stated, the petition is granted, and respondents are permanently stayed from conducting any further proceedings upon the complaint and petition of the petition.

The constitutional safeguards against successive trials for the same offense form a cornerstone of our jurisprudence and may be invoked by the young who face institutionalization as well as by adults subject to incarceration. If you are facing similar charges with the Family Court, you will need the help of a Bronx Family Attorney and Bronx Order of Protection Attorney at Stephen Bilkis and Associates.

An institution filed a child neglect petition in the family court based on allegations that the mother failed to provide adequate medical care for the infant and had a prior history of neglect findings as to the infant's older siblings. The court issued an order removing the child from the mother's care and sends back the child to the institution for foster care services. Then, the institution removed the child from the mother's care and the child physically entered the foster care. A New York Family Lawyer said the institution placed the child in a foster home with the agency with whom they contracts for foster care and adoption services. The agency consequently placed the child in the home of non-kinship foster parent who has now filed the agency for adoption petition. The child remained in the foster mother's home continuously.

Consequently, the court found that the mother had neglected the child and issued a dispositional order placing the child with the institution. At the hearing, the court approved a change in the child's permanency goal from return to parent to adoption. The agency filed a petition to terminate the parental rights of the mother on the grounds of permanent neglect or abandonment, and sought a finding that there was no man who was entitled to notice of and consent to the adoption of the child.

The hearing for the termination of parental rights proceeding was initiated. At the hearing, the court learned that the mother had died and her death ended the proceeding. A New York Custody Lawyer said the court then held a hearing and found that there was no man who was entitled to notice of or consent to the child's adoption. The court directed the agency to submit a written order of disposition and the mother's death certificate.

Consequently, the court signed the order granting the agency and institution the authority to consent to the child’s adoption by a suitable person or persons, subject to the customary approval and order of a court of competent jurisdiction. Later, the order was certified, entered, and registered with the office of the county clerk.

Afterward, a Bronx Family Lawyer said the foster mother executed a written agreement to adopt the child. The agency executed its written consent to the adoption of the child by the foster mother. The foster mother consequently filed the adoption case.

During the pendency, the maternal aunt did not appear in court nor filed a petition for child’s custody or visitation. However after learning the death of her sister, the maternal aunt filed a petition seeking an order of guardianship of the child.

A Bronx Custody Lawyer said the maternal aunt and the agency appeared in court and the case was adjourned for completion of service. The agency, the institution, and the child's attorney appeared, but neither the maternal aunt nor her attorney appeared. On the same date, the referee dismissed the guardianship petition based on the maternal aunt's default.

Subsequently, the attorney of the maternal aunt moved to vacate the default order and restore the custody petition to the court's calendar on the grounds that the maternal aunt was present in the courthouse but was delayed in gaining entry to the building because of the long line, and the attorney was engaged in another proceeding. The referee then adjourned the case. But, the referee consequently denied the application to vacate the default order as to the custody petition, finding that the child was legally free for adoption and the foster mother was pursuing adoption of the child, and therefore custody would not provide the child with permanence.

Consequently, the court denies the agency's motion and orders the institution to file modified papers and complete their submissions immediately.

We always have our constitutional rights as long as we are alive but sometimes those rights are difficult to maintain. If you are a parent who wants to sustain parental rights for your child, you can ask legal guidance from the Bronx County Family Attorney. Furthermore, Stephen Bilkis and Associates also offer the expertise of their Bronx County Child Custody Attorney.

In this guardianship proceeding, respondent, an alleged incapacitated person (AIP), commenced the instant Art. 81 proceeding, via a self-petition, seeking to have a guardian appointed to manage his personal needs and his property. In his self-petition, respondent nominated his neighbor as his guardian. A New York Family Lawyer said that following the filing of the initial petition, the nephew of respondent, filed a cross-petition similarly seeking the appointment of a guardian for respondent but opposing the nomination of the neighbor. Subsequent to the commencement of the cross-petition, respondent withdrew his self-petition. Following several conferences, the instant matter was set down for a hearing, wherein several witnesses testified.

A New York Custody Lawyer said that based upon the credible and documentary evidence adduced at the hearing, the court determines that a cross-petitioner, has demonstrated by clear and convincing evidence that respondent is incapacitated. Specifically, the court determines that respondent is unable to provide for his personal needs and the management of his property management. Respondent cannot adequately understand and appreciate the nature and consequences of such inability and is likely to suffer harm if a guardian is not appointed. Though cross-petitioner has met his burden, the evidence reveals that respondent executed advance directives which address all of his personal needs and the management of his property. Thus, the appointment of a guardian is not warranted under the circumstances.

The issue to be resolved in this case is whether respondent should be placed under guardianship.

A Nassau County Family Lawyer said the legislative purpose of MHL §81 Guardianship proceeding is to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life.

A Nassau County Custody Lawyer said that incapacity, as defined by MHL §81.02 (b), is a determination that an alleged incapacitated person is likely to suffer harm because of said person is unable to provide for personal needs and/or property management; and said person cannot adequately understand and appreciate the nature and consequences of such inability. Thus, whether to appoint a guardian is a matter of discretion requiring appropriate when the court to determine that the person alleged to be incapacitated consents to the appointment of a guardian or actually needs one.

A guardian should be appointed if and when the court determines that such appointment is necessary to provide for the personal needs and property management of a person alleged to be incapacitated and there is consent for the appointment or a finding of incapacity as defined. Incapacity is the inability to provide for personal needs and/or property management coupled with the inability to appreciate such inability. Whether someone can provide for his/her personal needs and or property management requires an inquiry and analysis of all available resources, such as a power of attorney. Such a determination also necessarily involves an inquiry and analysis of a person's functional level and his/her ability to manage all activities of daily living.

If there are mechanisms in place and resources, such as a power of attorney, which adequately provide for a person’s needs, the court should deny the petition and not appoint a guardian. In one case, the court denied the petition seeking an appointment of guardian to manage respondent's property after finding, inter alia, that the person alleged to be incapacitated, through the execution of a power of attorney, had adequately provided for the management of his property, thereby obviating the need for a guardian.

The criteria for a determination on the issue of incapacity under MHL §81.02(a)(2) is crucial to the detailed and fact-specific guardianships that Article 81 of the MHL was designed to produce. Conclusory allegations without specific factual allegations of incapacity are insufficient and warrant dismissal. This is primarily because the Fifth Amendment protections against self-incrimination apply to Article 81 proceedings where a person's life and liberty are at risk due to allegations of mental illness or incapacity, requiring a petitioner to present specific factual allegations regarding the AIP's incapacity. The specific factual allegations must be supported by clear and convincing evidence of the AIP's incapacity.

To determine incapacity, the court must undertake a detailed analysis, on the record, of the physical, mental, and financial health of the alleged incapacitated person. The Court is required to make an assessment of any physical illness, any mental disability and all other relevant facts and circumstances regarding functional level and understanding and appreciation of the nature and consequences of his or her functional limitations. The totality of the circumstances including limitations in understanding, vulnerability to undue influence and fear of loss of assistance caused by dependence on a guardian and extent of isolation from other resources.

The court credits the testimony of the witnesses, which collectively reveals that as early as January 2007, respondent was exhibiting signs of Dementia. Respondent is described as being confused, unfocused, unresponsive to questions, and frequently changed topics in the middle of conversations. Similarly, there was evidence to suggest that respondent, an elderly frail man, required assistance with most activities of daily living and was unable to manage his finances. The most compelling testimony was elicited from a physician who testified that he examined respondent and that based on his exam he concluded respondent exhibited signs of Dementia. He noted that respondent was a poor historian, was not oriented to place and time, when prompted provided disjointed medical information, and displayed both short term and long term memory lapses. It was the doctor’s medical opinion that respondent suffered from mild to moderate Dementia, possibly Alzheimer's. Further, he testified that respondent lacked poor insight and judgment and was unable to understand the extent of his shortcomings.

Though the court credits the testimony of other witnesses, including respondent’s niece, most of their testimony concerned the time period between 1983 and prior to 2005 which provided very little relevant testimony concerning respondent’s functional limitations. Most of the testimony concerned her interaction with respondent from 1995 through 2004. Of some relevance, the witness testified that she recalled seeing her uncle in Hunter and tried to explain to him that her mother was ill, suffering from Alzheimer's. Though the niece testified that she had to repeat information previously given, there is no contemporaneous medical evidence to support a finding that respondent suffered from a mental illness at that time.

Similarly, the court credits the testimony of respondent’s nephew that from 1976 through 2003, he has had sporadic contact with his uncle. Most of his contact with his uncle centered on family events, mostly summer time gatherings in upstate New York. From 2004 through 2005, the nephew had very little contact with his uncle. He, however, testified that in 2004 or 2005 he had a conversation with respondent concerning the release of family funds or funds purportedly belonging to her mother. During the conversation, respondent indicated that he was having difficulties with investments, people were watching him and he raised concerns about his safety. Though the testimony was uncontradicted, there is also evidence that respondent was routinely secretive of his and his family’s finances and that he was often times reluctant to release funds to family members. Other than isolated instances where respondent requested that information be repeated to him or he asked repeated questions, there is no medical evidence to demonstrate that at or about the time of the conversations referred to by the nephew or the niece, respondent suffered from a mental illness.

Lastly, the court credits the testimony of the neighbor and the lawyer, to the extent that up until his hospitalization in 2006, respondent was fairly active. He was able to perform most of, if not, all the activities of daily living with little or no help. Though respondent required the assistance of his neighbor, he was for the most part performing most of his daily functions. Respondent was eating regularly, he was attending to his medical needs, and his finances were being managed. The evidence suggests, however, that his activities appeared to have lessened around the year 2005. He was traveling less and required further assistance from his neighbor.

Thereafter, respondent execute a deed conveying an interest in his home to his neighbor and her daughter. According to the lawyer, she meet with respondent privately, explained the purpose of the document and thereafter respondent executed it. Similarly, the lawyer testified that at respondent’s request she prepared a durable power of attorney and health care proxy, naming the neighbor as his representative. She testified that the documents were explained to respondent and that he executed the documents thereafter. Though cross-petitioner contends that neighbor arranged to have the documents prepared, there is no credible evidence to support such a finding. The neighbor’s sole involvement was to procure an attorney, at respondent's behest, and to drive respondent to the appointment/meeting with the attorney. The lawyer testified that she had a private meeting with respondent wherein she discussed the contents of the documents to him and after discussing the documents, he executed them. There is no evidence of coercion or any evidence that the neighbor instructed the lawyer what documents to prepare and what the documents should provide for. Lastly, there is no evidence to suggest that respondent was incapacitated or in anyway incompetent at the time he executed the advance directives.

While the evidence clearly demonstrates respondent is incapacitated, is unable to provide for his personal needs and/or property management, cannot adequately understand and appreciate the nature and consequences of such inability, and is likely to suffer harm because of his shortcomings, the circumstances do not warrant the appointment of a guardian. It is well settled that even if all the elements of incapacity are present, a guardian should be appointed only as a last resort, and should not be imposed if available resources or other alternatives will adequately protect the person. Such resources have been defined to include a durable power of attorney, health care proxy, and/or a home health aide. The existence of such resources promotes the statutory goal of requiring dispositions which are the least restrictive form of intervention. Here, respondent executed advance directives in May 2005. Though it is well settled that the court may, in its discretion, set aside, modify or amend an executed appointment or delegation of power upon a showing that the agent abused its authority, or that the document was executed at a time of incapacity, or because the agent or grantee is unable or unwilling to fulfill its duties. Cross-petitioner has not proffered sufficient evidence which warrants such action. Cross-petitioner's assertion that the power of attorney and health care proxy were executed at a time of incapacity or when respondent was incompetent is not supported by the evidence. Such a finding would be, at best, speculative. Moreover, there is no evidence to support a finding that the designated agent, the neighbor, abused her discretion or that she is unable or unwilling to serve as a fiduciary.

Based on the foregoing, it is the court's determination that cross-petitioner has demonstrated by clear and convincing evidence that respondent is incapacitated as defined by statute. The court, however, finds that prior to his incapacity, respondent executed a durable power of attorney and health care proxy naming the neighbor as his attorney-in fact and as his health care proxy. The evidence demonstrates that with the assistance of the neighbor and a home health aide, respondent has been able to manage his daily activities of living, his personal needs, his finances and property. It is the court's determination that no showing has been made to warrant the modification, amendment or revocation of the durable power of attorney or health care proxy. Under the circumstances, it is the court's determination that the appointment of a guardian is not warranted.

The Court hereby Ordered that the cross-petition be dismissed. It is further Ordered that any parties who provided services in the instant proceeding and who are entitled to compensation pursuant to the Mental Hygiene Law, submit an affidavit specifying in detail any and all services rendered, the time spent rendering said services, and the fees charged for the same, if any to the petitioner, cross-petitioner and to the Court, within twenty days (20) of service of a copy of this Order.

Incompetent persons who are unable to take care of themselves and their properties should be placed under guardianship. Consult now in Stephen Bilkis and Associates for a competent advice regarding such matter. Our Bronx County Family Lawyers are likewise always ready to give you pieces of advice on family matters.

The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a six-year-old boy born on May 17, 2004. A New York Family Lawyer said the stipulation settling the divorce case granted the mother legal and physical child custody. The father was given visitation rights every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation also allowed relocation within 25–miles of the father's house in Bronx County.

The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

A New York Custody Lawyer said that after the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying to mirror my own childhood. I had a wonderful suburban upbringing. The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem.

In March 2008, the mother met her second husband on Match.com. The second husband was retired from the Air Force, lived in North Carolina and was then involved in a nation-wide job search. Ultimately, a Queens Family Lawyer said the second husband took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman's Long Island branch, but the company could not accommodate his request. The mother and her second husband became engaged in May 2008.

Soon after her engagement, the mother approached the father about moving to California to live with the second husband. The father was concerned about the distance and the stability of the mother's new relationship. The parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated May 12, 2008 that purported to memorialize the parties' agreement. The letter stated that the parties agreed that the child would stay with the father from June 27, 2008 until December 31, 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after December 31, 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. A Queens Custody Lawyer said the mother left for California on June 26, 2008. She claims that she never intended the father to have permanent custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree.

The mother gave birth to the second husband's son on April 4, 2009. She and her second husband were also married in April 2009.

On July 17, 2008, the father filed a petition seeking sole legal and physical child custody, claiming that the mother had abandoned the child. On December 1, 2008, the mother filed a petition for relocation. The court consolidated the two petitions. Before the hearing, the father withdrew his petition for sole child custody. Accordingly, the court considered only the relocation application.

It was not until August 2009 that a two-day hearing finally took place. The parties were the only witnesses. The court did not issue a decision until almost a year later, on July 19, 2010, granting the mother's relocation petition. During the time the parties were waiting for the court's decision, the child continued to live with the father. After the court's decision was issued, the child moved to California in compliance with the court's order.

First, there is no question that the California home is financially more stable than the father's home. The stepfather has a steady job with Northrop Grumman that provides his family with health insurance. By contrast, the father is not currently working. Although he has been offered a job as a teacher's aide, he has postponed his start date. He is currently on some type of public assistance and receives money from his parents in Ireland. He readily admits that it's not been easy like money wise. He is not currently in a relationship. Given his bleak financial circumstances, with no career or family in New York, it would appear that there is nothing keeping the father from moving to San Diego himself to be closer to his son.

Further, living in San Diego ensures that the child will grow up in the same house as his half brother. The father agreed that it was very important for the child to have a brother in his life. He even testified that he actually expected the child eventually to move to California so that he could be with his brother. The father was merely opposed to the date of the move. The mother established that the child would have access to an education that was just as good as, if not better than, his school in New York. Moreover, she testified that her second husband’s status as a veteran will allow the child to attend college within the State of California's university system free of charge.

The record also reflects that the mother went out of her way to facilitate communication between the child and his father. The same could not be said of the father with respect to communication between the child and his mother. Finally, the child's own attorney recommended that the court permit the mother to relocate with the child, a factor that militates in favor of affirming the result the court reached.

The characterization of the mother as putting her own romantic interests ahead of her son's welfare is rank speculation. It is just as likely that the mother, herself an only child, was pursuing marriage aggressively to produce a sibling for her son, before he became much older, and an intact family. Regardless of the mother's motivations, it is the best interest of the child that must guide our decision. Relocation ensures that the child will live in a family that is stable financially. He will be with his brother. The amount of time spent with his father will diminish. However, we find that the visitation schedule, that requires the mother to pay for air travel for the child to be with the father on numerous extended weekend visits throughout the year in addition to extended summer and holiday visits, does not deprive the father of the opportunity to maintain a close relationship with his son.

Accordingly, the order of the Family Court of Bronx County which granted the mother's petition to modify the judgment of divorce and the Supreme Court of Bronx County to permit the mother to relocate to California with the parties' child should be affirmed without costs.

When a separated parent decides to re-marry, it does not mean that they will be less of a parent to their children. Furthermore, not all stepparents are bad. Sometimes stepdads and stepmoms treat their stepchild as if they are their own. If you want to prove to your former partner that you and your newly-found partner are worthy of a child’s custody, visit Stephen Bilkis and Associates to discuss your problem with the Bronx County Family Lawyer. If you are being accused of child abuse, the Bronx County Domestic Violence Attorney can help you in court.

An institution moved to request a decision without proceeding with regards to the child neglect proceeding. The institution requested the court to enter a finding of derivative neglect against the mother of the child based on the court's prior finding of neglect as to her older child.

Consequently, a New York Family Lawyer saidhttp://familylawyer.1800nynylaw.com/ the attorney of the child filed an affirmation opposing the institution's motion. The attorney stated that the mother had accepted services and did not exhibit an impaired level of parental decision as to create a substantial risk of harm to the infant. The mother's attorney also filed responsive papers opposing the institution's motion. For that reason, the court denies the institution’s motion.

Later, the institution filed a child abuse and neglect petition against the mother. Sources revealed that the petition claimed that the children are less than eighteen years of age whose physical, mental or emotional conditions have been impaired or are in imminent danger of becoming impaired as a result of the failure of their mother to exercise a minimum degree of care in supplying them with proper supervision or guardianship by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, or by misusing a drug, and not voluntarily and regularly participating in a rehabilitative program, or by any other acts of a similarly serious nature requiring the aid of the court.

A New York Custody Lawyer said the court then sends back the children to the care and custody of the institution. The institution then placed the children in the kinship foster home of their maternal great cousin under the supervision of a contract foster care agency. The youngest received medical care for the burn injuries she had sustained.

As ordered, the court paroled the children to their maternal grandmother. The court also granted the mother liberal visitation with the children, directing her to remain engaged in services and comply with random drug testing.

Consequently, a Nassau County Custody Lawyer said the court paroled the children to their mother but under the institution’s supervision, on condition that she reside with her maternal grandmother, continue participation in a therapeutic parenting program at the foster care agency, engage in and attend therapy consistently, accept visiting nurse services, and cooperate with the institution’s supervision.

At the hearing, the court heard testimony from the institution’s caseworker and expert, from the mother and her expert. The court reviewed medical records related to the youngest child’s injuries and photographs of her burns. It was certain that the child sustained five second degree burns.
After the hearing, the court issued a decision which found that the mother left her children unsupervised in the living room, in close proximity to hazardous and dangerous conditions that she had created in the bathroom. The mother had plugged a curling iron into an outlet above the sink, placed the curling iron on top of the sink and left the cord dangling, and ran water for the children's bath. The court held that the mother had failed to exercise a minimum degree of care in the proper supervision of the children, resulting in harm, and substantial risk of harm to her children, sufficient to support a finding of child neglect. The court, however, did not make a finding of child abuse against the mother.

The court also found that the mother failed to provide her child with adequate medical care. After finding the infant in the bathroom with second degree burns on her legs, the mother did not take her child to the hospital or a doctor for emergency medical care. The mother just treated her child's burns herself. The court found that the mother's failure to seek immediate emergency medical care for her child was placed the child at additional imminent risk of injury or impairment and with that, it constituted child neglect.

Consequently, a Nassau County Custody Lawyer said the court continued the parole of the children to their mother and directed her to comply with the institution’s supervision, keep all medical appointments for the children, and ensure that the eldest child will continue to receive early intervention services.

Whenever you did something wrong or you unintentionally act that caused harm to your child that pushed your partner to move to eliminate your custody rights, you can ask help from the Bronx County Child Custody Attorney. You can also seek legal representation from the Bronx County Family Lawyers. Simply visit Stephen Bilkis and Associates office for consultation.

The complainant woman filed a Family Offense Petition in the Family Court of Bronx County against her husband. A New York Family Lawyer said acting on the petition, the Family Court issued a permanent Order of Protection in favor of the wife. The Order, the duration of which is 12 months, directed that the husband shall refrain from acts constituting assault, menacing, reckless endangerment, and/or disorderly conduct directed against his wife and it is further ordered that the husband is excluded from the wife's apartment.

Earlier, the Bronx County Family Court had issued an order governing visitation by the husband to their child.

On August 10, 1987, the complainant filed a Petition for Violation of the Order of Protection in the Bronx Family Court based on conduct allegedly engaged in by the husband on several occasions. It is the conduct complained of on August 9 and 10, 1987 along with the events of July 26, 1987 which likewise form the basis of the criminal charges. A New York Custody Lawyer said also on August 10, 1987, the complainant filed with the Family Court a Petition for Modification of the Visitation Order. Both petitions were signed by the wife on August 10, 1987. The husband was arrested on the wife’s complaint to the police and given a desk appearance ticket returnable in the Bronx Criminal Court.
The wife appeared at the offices of the Bronx County District Attorney and swore out a criminal complaint against her husband for his actions. The complaint was filed by the City but the husband was not actually arraigned until October 8, 1987. The Family Court dismissed the Petition for Violation of the Order of Protection based on the pendency of the criminal proceedings.

A Queens Family Lawyer said the husband bases his motion to dismiss on the complainant's irrevocable election of the Family Court as the forum in which to litigate the issues arising out of the alleged violation of the Family Court's Order of Protection. He argues that more than seventy-two hours passed after his wife appeared in Family Court when she commenced a proceeding in that forum and when she signed the complaint to have her husband's conduct prosecuted according to the Penal Law.

The City argues that the wife was not provided with the admonitions and information mandated by Family Court Act Section 812, and therefore did not make a legally effective election to proceed in the Family Court. The wife's affidavit recites that she was not informed of the differing purposes of proceeding in the fora and that had she known she would have chosen the Criminal Court. In the alternative, the City contends that even if the wife is found to have made a binding election to proceed in the Family Court, the Criminal Court nevertheless retains jurisdiction over that count of the information charging the husband with Criminal Contempt.

A Queens Custody Lawyer said the Court concludes that complainant has made a binding election to proceed in the Family Court with respect to those counts of the information charging the husband with Attempted Assault in the Third Degree, Harassment, and Aggravated Harassment in the Second Degree. Consequently, those charges are dismissed with leave to restore in the Family Court. With regard to the charges of Endangering the Welfare of a Child, Criminal Trespass in the Second Degree and Criminal Contempt in the Second Degree, the Court hold that those counts are within the jurisdiction of the Criminal Court.

The Family Court Act, Section 812(1) confers jurisdiction on the Family Court concurrent with the Criminal Court over certain acts designated as family offenses which constitute disorderly conduct, harassment, menacing, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault, between spouses or between a parent and child or between members of the same family or household. In addition to these enumerated family offenses, case law has extended the jurisdiction of the Family Court to other penal offenses when the non-enumerated offense is inextricably linked to an enumerated family offense.

Offenses will be considered inextricably linked only when they share a common legal element. An offense whose legal elements stand independently of the enumerated offenses charged in a given case is distinct and may not be heard in the Family Court. It follows that with regard to those penal offenses which are not inextricably linked to one of the enumerated family offenses, no right of election exists because the Criminal Court has exclusive jurisdiction over them. Conversely, a right of election exists only with regard to those offenses over which both courts may exercise jurisdiction.
Endangering the Welfare of a Child occurs when a defendant knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a male child less than sixteen years old or a female child less than seventeen years old or when a parent, guardian or other person legally charged with the care of custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an abused and neglected child, a juvenile delinquent or a person in need of supervision.

Finally, the purpose of a prosecution for Criminal Contempt is not in any sense private, but has as its objective the vindication of the integrity of the judicial system. It is inconceivable that the decision to bring a criminal proceeding for this offense could rest in the hands of an individual complainant.
Whether the charges of Attempted Assault, Harassment and Aggravated Harassment may be heard by the Court depends on whether the complainant has elected the said forum or another forum. When events occur which violate a Family Court Order of Protection and which would constitute family offenses under Family Court Act, a complainant has three available choices. A Family Court Petition or a Petition for Violation of the Order of Protection may be filed in the Family Court or a complainant may proceed to institute a prosecution in the Criminal Court.

It is undisputed that the wife commenced a proceeding in the Family Court based on her husband's alleged violation of the Family Court's Order of Protection. The earliest date on which the criminal prosecution may be said to have originated was the day that she signed a criminal court complaint. The District Attorney's office filed the charges against the husband on the same day. Because the proceedings in criminal court commenced more than seventy-two hours after a still-pending Family Court proceeding was instituted, it would appear that the Court lacks jurisdiction over those counts of the information for which complainant had a right of election, Attempted Assault, Harassment and Aggravated Harassment. However, there still remains the issue of whether the wife made an effective election to proceed in the Family Court absent her receipt of the information and admonitions required to be provided to every complainant seeking redress for a family offense.

In order to effectuate the right of the victim to make an intelligent choice at a time of stress, both the Criminal Procedure Law and the Family Court Act require that before any proceeding is commenced, a complainant be given information, including the right to elect either forum, how that election may be made, the possible consequences of proceeding in Criminal Court and the services and functions available to bring about conciliation through Family Court. In addressing the City's contention that failure to so inform the wife renders her initial selection of the Family Court invalid, the Court will assume that the wife was not provided with such information when she went to the Family Court on August 10, 1987.

Accordingly, the failure of various agencies to apprise the wife of her options does not affect her election to proceed in the Family Court even if that election was not the product of an informed decision or was not appropriate to her needs.

In dealing with each other’s differences and misunderstandings, the couple most often than not, forget that their child needs them both. Sometimes the husband and wife compete with one another and put their children in the middle of their fight. If you want to put your child’s best interest, visit Stephen Bilkis and Associates and talk to their Bronx County Family Lawyer together with their Bronx County Order of Protection Attorney.

An Order of Disposition by Family Court of Bronx County was entered and adjudicated the appellant, a juvenile delinquent upon his admission in Westchester County Family Court. A New York Family Lawyer said he admitted that he committed an act that, if committed by an adult, would constitute the crime of grand larceny in the fourth degree, and placed him in the custody of the Office of Children and Family Services for a period of 18 months. The order was unanimously reversed on the law without costs, and the matter was remanded to Family Court of Bronx County for a new fact-finding hearing.

The Appellant juvenile delinquent is entitled to vacatur of his admission because the court failed to comply with the allocution requirements of Family Court Act which provides that at the initial appearance, the respondent shall admit or deny each charge contained in the petition unless the petition is dismissed or the proceeding otherwise terminated.

A New York Custody Lawyer said the allocution was inadequate because the court did not advise appellant that he had the rights to testify, call witnesses in his own behalf and confront witnesses against him. It is also found to be inadequate because the appellant was not advised of the presentment agency's obligation to prove his guilt beyond a reasonable doubt. Since the requirement is not waivable, preservation is not required.

In a related proceeding, an infant was born on October 14, 1989 and on October 26, 1990, after the Commissioner of Social Services of the City of New York transferred custodial responsibilities for the child to Family Support Services Systems Unlimited (Family Support), an authorized agency having its principal office in Bronx, the infant was placed with the petitioners, her maternal grandmother and her step-grandfather. A Nassau County Family Lawyer said the biological mother executed a judicial surrender relinquishing guardianship and child custody of her daughter to the Commissioner for purpose of adoption. The child's biological father is unknown.

Thereafter, the petitioners and the baby moved to Florida. Family Support sought approval of the move through the Interstate Compact on the Placement of Children, and after evaluating the petitioners' and the infant's living conditions, the Deputy Compact Administrator for Florida approved the move.

A Nassau County Custody Lawyer said that in pursuing the infant's adoption, the petitioners executed and the New York State Department of Social Services approved their application for adoption subsidy and entered into an agreement. The Commissioner transferred legal child custody of the infant to Family Support which, in turn, secured clearance of the petitioners from New York and Florida. The petitioners executed an adoption petition and Family Support executed an Agreement of Adoption and Consent and Verified Schedule. These, besides documents verifying the petitioners' marital status and updated medical reports for themselves and the infant, were filed with the Bronx Family Court, and the matter calendared for June 15, 1994. The Family Court dismissed the petition on that date holding that Florida had a greater public policy interest than New York and that the petitioners should file for adoption in the former state.

Domestic Relations Law 113 provides in pertinent part that an authorized agency may consent to the adoption of a minor whose custody and guardianship has been transferred to such agency. The agreement of adoption shall be executed by such authorized agency. The proceeding shall be instituted in the county where the adoptive parents reside or, if such adoptive parents do not reside in this state, in the county where such authorized agency has its principal office.

Accordingly, the statute clearly contemplates the situation where the adoptive child resides with adoptive parents out of the state, and the instant adoption proceeding was properly commenced in the Family Court, Bronx County, since the authorized agency has its principal office in that county. Since the authorized agency Family Support had its principal office in the Bronx, the Family Court did have jurisdiction over the adoption and, therefore, improperly dismissed the petition.

Couples who adopt to give that child not just a better life but a family to love and take care of them are like angels sent by the heavens. If you and your partner are contemplating on adopting a child and having some problems on the procedure, find a Bronx County Family Lawyer together with the Bronx County Child Custody Attorney from Stephen Bilkis and Associates.

Petitioner filed a family offense petition in wherein she alleged in pertinent part that respondent physically assaulted her on numerous occasions and threatened to shoot her. A New York Family Lawyer said although served with a copy of the summons and petition, respondent did not appear on the return date of the petition. The Presiding Judge in the Part conducted an inquest on that date. Finding aggravated circumstances, the judge entered a final order of protection on the same date for a term of four years, requiring respondent to stay away from petitioner and her children, and to refrain from communicating with or committing any acts constituting a family offense against petitioner mother and the children.
A Queens County Order of Protection Attorney said that respondent father filed a petition seeking visitation with the children. The court dismissed the petition without prejudice as neither party appeared. There is no indication that the father ever served the mother with the petition. This is how matters remained until the Administration for Children's Services filed neglect petitions against the mother alleging in pertinent part that the mother had engaged in sexual intercourse with a 12-year-old minor and that the home and the children were malodorous. Through that date the father had no contact with the children at least since the mother had filed the 2006 family offense petition.
Later, the mother withdrew her previous denial to the allegations of the neglect petition and submitted to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a). Based upon the allegations set forth in the verified petition, the court found that the mother neglected the subject children based upon failure to exercise a minimum degree of care in providing the subject children with adequate guardianship and supervision. As part of the dispositional order, petitioner mother was ordered to refrain from making disparaging comments against respondent, who was not a respondent in the neglect proceedings.

During the pendency of the neglect proceedings, the father filed the instant motion in Family Court, Queens County, in the family offense proceeding seeking vacatur, or in the alternative modification, of the four-year final order of protection. A New York Custody Lawyer said the motion was transferred to Bronx County Family Court without a decision on the motion. This court received the motion and a letter was sent to all counsel seeking submission of response papers, particularly concerning the potential impact of `a Court of Appeals decision discussed below. In support of his motion, the father submitted an affidavit stating that he mistakenly appeared in Family Court, Queens County, one day late, and that he took immediate action by filing a custody petition. He contends that he was not able to effectuate service of the custody petition, and therefore that matter was dismissed. With respect to that branch of his motion seeking to establish a meritorious defense, the father contends that the mother's allegations in the family offense petition are false and that the mother brainwashed the subject children in a manner that caused them to fear him.

In response, a Queens Family Lawyer said both petitioner and the Law Guardian submitted affirmations in opposition, claiming that respondent failed timely to file his motion to vacate within the statutory one-year period, and furthermore, that the interests of justice require finality herein. The Law Guardian also submits, from a factual standpoint, that the subject children fear respondent and have no desire to visit with him as a result of observing acts of violence by the father perpetrated against the mother.

During oral argument, the court asked the parties to address the possible impact upon the motion of the Court of Appeals decision wherein the Court held, inter alia, that in the context of a Family Court Act article 10 proceeding, the trial court must conduct periodic review of an order of protection to determine whether or not continuance of the order of protection is in the best interest of a subject child.

In the instant case, the court expressed the concern that a four-year order of protection against a natural parent, which order required that parent to stay away from his children for that entire period of time without periodic review of the order, could have a significant impact upon the parent-child relationship sufficient to invoke the same concerns expressed by the Court of Appeals. A Nassau County Family Lawyer said the parties submitted supplemental affirmations which have been reviewed by the court. The Administration for Children's Services and respondent supported application of the Court of Appeals decision to the instant case. While petitioner and the Law Guardian opposed such an application. Upon reflection, this court finds that, although the Court of Appeals holding is specific to an article 10 proceeding and is not automatically applicable to the instant Family Court Act article 8 proceeding, the reasoning employed by the Court of Appeals in limiting the duration and expanding the required review of an order of protection in article 10 proceedings is instructive for a court in determining the length and level of review of an order of protection issued pursuant to a family offense petition. The reasons for this conclusion are set forth.

The court denies that branch of the instant motion seeking an order pursuant to CPLR 5015 vacating the order of protection based upon excusable default and a meritorious defense. As a threshold matter, petitioner contends that the motion must be denied because of the more than one-year delay in filing the motion. This argument is unavailing, however, as the motion must be made within one year after service of a copy of the order with written notice of its entry upon the moving party. Petitioner has not submitted any proof of service of a copy of the order with notice of entry. While as a practical matter the Clerk's office of Family Court usually mails a copy of the order, the file does not indicate that this was done and therefore this court cannot presume that this was done in this particular proceeding or that such a mailing would satisfy statutory requirements.

Respondent has not, however, shown an excusable default for his failure to appear on the return date of the family offense petition. He clearly received notice of the actual court date. If respondent had appeared one day late, elementary inquiry of court personnel would have established the correct court date and respondent could easily have filed a motion to vacate the default. Respondent asserts that he filed a custody petition that was dismissed based upon his failure to serve the mother. In fact, the court papers reveal that the father filed a visitation, not a custody petition. Where service upon a party whose address is confidential cannot be effectuated, the procedure in effect at that time was to have the court notify the party whose address is confidential. Respondent herein presented no evidence as to attempts to locate the mother or to effectuate service of a custody petition. There certainly was no impediment to the father filing a motion to vacate the order of protection. Respondent acknowledges receiving notice of the existence of the order of protection, but did not file the instant motion until 16 months later.

Under these circumstances, respondent has not established the excusable default prong of his vacatur motion. Respondent's extended delay in filing the instant motion and his apparent lack of diligence in seeking to challenge the order of protection prior to the filing of this motion undercuts his argument that the court should exercise its inherent discretion to vacate an order in the interests of justice. In addition, the clear and repeated statements of the subject children as to witnessing serious acts of domestic violence against their mother by respondent also negatively impact upon the application to have the order vacated in the interests of justice. Thus, there is no appropriate basis upon which this court should rely in vacating the order of protection based upon excusable default and meritorious defense or in the interests of justice.

The order of protection in the instant case was entered pursuant to article 8 of the family Court Act. Although this article has been under constant review, the legislature has not chosen to modify or change article 8 in light of the Court of Appeals holding, any modification and review continues to remain pursuant to Family Court Act § 844. This section permits a Family court after hearing to reconsider and modify any order of protection issued under Family Court Act § 841. The primary purpose of this section is "to allow the Court to refashion its dispositional orders based on changed circumstances or new information."

Although the court holds that the Court of Appeals case does not mandate vacatur or modification of the subject order of protection, the concerns expressed by the Court of Appeals as to unduly lengthy intrusion into a parent-child relationship without periodic review will inform in part this court's continued review and possible modification of the order of protection pursuant to Family Court Act § 844. Although there may be no basis to modify the order of protection on behalf of the mother, the court has been presented with a change of circumstances concerning the subject children which this court must address. Since the original order of protection was issued on behalf of the subject children in 2006, the mother was arrested for having sexual relations with a 12-year-old boy and the mother submitted to this court's jurisdiction pursuant to Family Court Act § 1051 (a) in neglect proceedings concerning the subject children. At least one of the subject children has expressed interest in possibly resuming a relationship of some kind with the father. The subject children are receiving individual therapy and the issue of their relationship with their father is one of the issues addressed in therapy. Under these circumstances, the court will conduct an evidentiary hearing as to whether the length and terms of the order of protection should be modified insofar as they relate to the subject children based upon a change of circumstances since the original order was issued.

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Petitioner father and respondent mother are the parents of the four subject children, and have resided together in the Bronx and Albany. In 2005, respondent and the children were living in Albany. A New York Family Lawyer said the petitioner lived in the Bronx at that time, and visited the children in Albany on weekends. Thereafter, respondent filed a petition for custody of the children in Albany County Family Court. After being referred to mediation, the parties reached an agreement that was incorporated into an Albany Family Court order providing in pertinent part, that the parties would have joint custody of the minor children. The children would reside with the respondent during the school year. Since she was relocating to North Carolina, the order directed her to notify petitioner of school activities and provide a copy of the school calendar at the beginning of the school year. A New York Custody Lawyer said the children would reside with the petitioner during any school breaks lasting one week or more, and during the summer months.

A Bronx County Family Lawyer said that respondent and the children moved to North Carolina. Petitioner immediately inquired about the name of the school that the school-age children would be attending. Respondent was evasive, promising to provide that information. She never did. Unbeknownst to petitioner, prior to her relocation, respondent filed an application to open a religious home school in North Carolina.

Additionally, respondent refused to provide information to petitioner regarding other aspects of the children's living situation, including the identities of other persons living in the home.

Failing to obtain any information from respondent, petitioner initially sought redress in a North Carolina court, which rebuffed his effort. He then attempted to file a petition in Albany County, which advised him to file in the Bronx, his county of residence. Thereafter, less than six months after the children left New York, he commenced this proceeding in Bronx County Family Court, seeking modification of the prior order of custody, alleging, inter alia, that respondent was home-schooling the children without his consent, interfering with his interstate visitation, and instructing the children not to give him any information about who was watching them, living with them or if they were hurt.
Respondent was served with this petition but never appeared in the proceeding.

Later on, the return date of the petition, the court attorney-referee questioned whether Family Court had jurisdiction over the proceeding, stating New York had minimal contact with the children and all the information and facts necessary to determine the petition are in North Carolina. After petitioner advised her that North Carolina had refused to take jurisdiction of this case, she adjourned the matter.
On the adjourned date, the referee again questioned whether New York had jurisdiction. She also indicated that the court had notified respondent to appear, and noted her absence. The matter was adjourned again, and the referee indicated that the court would notify respondent to appear on that date.

On the adjourn date, respondent again failed to appear. Petitioner advised the referee that the three younger children were in New York for visitation, although respondent refused to permit visitation with the oldest child. The law guardian advised the referee that the oldest child has learning disabilities, and confirmed that respondent refused to permit the visitation required by the custody order. She also advised the referee that respondent was living a communal existence with "a mysterious, small religious group" in which nonparents are allowed to spank the children. Once again, citing lack of jurisdiction, the referee adjourned the matter to have respondent notified, again expressing her belief that North Carolina was the proper venue for this matter.

Petitioner and the law guardian next appeared before the referee. Although respondent had sent a letter requesting permission to appear by telephone, and proper proof of service was presented, the referee stated she could not hear the matter without first obtaining respondent's consent. There is no indication that any attempt to contact respondent was made at that time. Upon petitioner's request, the matter was referred to a Family Court Judge.

The first appearance before a judge took place. Although respondent had sent another request to appear by telephone, again no attempt to contact her was made. Petitioner advised the court that he had learned that respondent intended to home-school the children over his objection, and that she refused to permit him to see the inside of her apartment or share any information with him about the apparently communal nature of her residence.

When the court asked why petitioner had waited to file a petition, he detailed his futile efforts to obtain relief in North Carolina and Albany. Indicating that North Carolina should have jurisdiction, as the children had resided and attended school there for more than a year, the court directed the parties to file written submissions on this issue and the matter was adjourned.

The law guardian requested an extension of time to file her papers. She claims that request was granted by the judge's court attorney. Petitioner's papers in support of New York jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act argued that there had been a change in circumstances since entry of the consent joint custody order in that respondent (1) was home-schooling the children without his consent; (2) was not addressing the special needs of the oldest child; (3) was permitting an unidentified male to inflict corporal punishment on the children; (4) had violated petitioner's visitation rights; (5) was living in a communal religious setting with the children; and (6) refused to share information with him regarding the children. Petitioner also argued that North Carolina had rejected his petition, New York was the home state of the children at the time the petition was filed, and the factors relating to the convenience of litigating militated in favor of New York.

Finally, petitioner contended that if the court declined to exercise jurisdiction over this custody proceeding, it should communicate with the North Carolina court to determine whether it would assume jurisdiction.

Thereafter, petitioner filed an order to show cause in Bronx County Family Court, stating that the children, who had been visiting with him in New York had informed him that other people in respondent's home were using excessive corporal punishment on them. He stated he feared for their safety, and that they were not permitted to attend normal public school and were kept in the house. He further stated that he had brought the children to see the law guardian. He requested an emergency modification of prior court orders, that an investigation be conducted, and that the children remain with him during the pendency of that investigation.

The Administration for Children's Services (ACS), State Central Register, and the Onslow County (North Carolina) child protective authorities were notified, and an investigation was commenced. An ACS caseworker reported that she was seriously concerned about these allegations, particularly as they applied to the oldest child, who was obviously learning disabled, had eye problems, had received no special educational or other services, and had been without his glasses for nearly a year and a half. The North Carolina authorities declined to investigate this complaint, and referred it back to New York, with an offer to assist upon their formal request.

On the scheduled adjourned date, the court handed copies of a previously prepared, five-page written decision concerning jurisdiction. The court determined that although New York maintained continuing exclusive jurisdiction, it would be in the best interest of the children to decline jurisdiction in favor of North Carolina, since the children had resided there for more than six months, and it would be more convenient to determine petitioner's allegations in that state. The law guardian objected that even though the judge's court attorney had permitted her to file her papers on the adjourned date, the court refused to consider them, although the law guardian was allowed to make her papers part of the record.

The law guardian then requested the court to assert temporary emergency jurisdiction in light of the serious child protective issues, including severe corporal punishment inflicted by unknown members of respondent's household, the failure of the children to attend school for over a year, the absence of home schooling, and the fact that the oldest child was not receiving proper medical attention for his eye condition and was without his glasses for over a year. The court, having declined jurisdiction over the custody matter, refused to entertain the application or take testimony of a social worker in support of temporary emergency jurisdiction.

The issue to be resolved in this case is whether or not Albany County Family Court has jurisdiction.
There is no question that the Albany County Family Court had jurisdiction to make an initial child custody determination since the children had resided in New York for more than six months prior to the filing of the petition. Moreover, when petitioner sought modification of the custody order, the children had been in North Carolina for less than six months and he was still a resident of Bronx County. Thus, the court correctly determined that New York had continuing exclusive jurisdiction to modify the joint order of custody.

A court with continuing exclusive jurisdiction may nonetheless decline to exercise such jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. However, before declining jurisdiction in favor of a court of another state, a New York court must consider the factors set forth in section 76-f (2) and permit the parties to submit information with respect to all relevant factors.

Here, the court refused to consider the law guardian's submission in contravention of Domestic Relations Law § 76-f (2). Whether the law guardian mistakenly believed the time to submit her papers was extended or not, the failure to take into account the information contained in her papers essentially deprived the children of the opportunity to participate fully in the proceedings. Additionally, the court did not list, in its citation of the papers relied upon, petitioner's submission and exhibits on the jurisdiction question or the order to show cause seeking an immediate change of custody. Since respondent appeared, and there is no indication that any attempt to accommodate her request to appear telephonically was made, the court essentially had little or no relevant information from any party with respect to the issue of whether New York was "an inconvenient forum under the circumstances" to resolve this litigation.

It appears that the court, in arriving at its determination to decline jurisdiction, only considered two factors as listed in Domestic Relations Law 76-f (2), namely: "(b) the length of time the child has resided outside this state" and "(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child." However, when all the factors are considered, it appears that the children retained substantial connections with New York and that significant evidence was present in this state.

The children resided outside this state less than six months when the petition was initially filed. The fact that significant delays in the proceedings occurred, mostly through no fault of petitioner, does not alter this fact. Indeed, there were breaks during that period, such as for Easter vacation and the summer of 2006 that were spent in New York with petitioner. Such visitation periods can, in appropriate circumstances, be a factor in determining whether a child continues to have a significant connection with New York.

In short, the court made its jurisdictional decision without properly applying the statutory scheme for such determinations. Moreover, in light of the particular and unusual circumstances of this matter, the case on remand should be heard by a different Family Court judge.

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A pregnant woman, who was then 20 years of age, unmarried and at her sixth month of pregnancy, sought her obstetrician's assistance in placing her forthcoming child for adoption. The doctor, the woman’s obstetrician then contacted an interested young childless couple. A New York Family Lawyer said as a result, preliminary arrangements for the adoption commenced. The woman, who was then residing with her parents and attending college in New York City, planned to leave the city, give birth, turn the child over to the adoptive parents and then return home to her parents, who were unaware of her pregnancy.
On 9 December 1981, the woman gave birth to a son. On 11 December 1981, the woman retained a lawyer. On 20 January 1982, she then signed an extra-judicial consent form for her son’s adoption in order to permit the adoptive parents to take possession of the child. The consent form states on its face that it shall become irrevocable 30 days after commencement of the child adoption proceeding unless revoked within that time, pursuant to the Domestic Relations Law.

A New York Custody Lawyer said on 24 March 1982, the child adoption proceeding was instituted in the Surrogate's Court of Westchester County. However, six days later, the woman or the natural mother filed a notice of revocation of consent which the adoptive parents immediately resisted. The Acting Surrogate conducted a hearing to determine whether the revocation was in the child's best interest. In her memorandum to the trial court, the natural mother urged that section 115-b of the Domestic Relations Law be declared unconstitutional because the language it requires to be inserted in the consent form, if the right to revoke is to be limited, proffers the impression that timely revocation will nullify the consent absolutely, while all it actually directs is a hearing concerning the best interests of the child, at which the natural parent derives no advantage from parenthood. During the hearing, the parties focused on best interests, an issue which consumed nearly all of the almost 500 pages of transcript. Although the constitutional question was raised, the transcript contained no claim by the natural mother that she was misled by the consent form. Thus, the court denied the natural mother’s application to withdraw her consent, finding that revocation would not serve the best interests of the child. While the Acting Surrogate recognized that a lay person could easily infer from the language of the form that the consent could be revoked and upon adoption revocation the parties would be restored to a status quo position, it found that the natural mother had not been misled by the form, that she had understood the consequences of her act and that she had been represented by competent counsel, and therefore had not been deprived of due process.

Consequently, a Bronx Family Lawyer said the natural mother appealed the aforesaid decision of the court. She then made an entirely new contention, that: as a matter of judicial construction, section 115-b must be found to require the consent form to inform the signer concerning the actual legal consequences of a notice of revocation; if 115-b is not interpreted to require a full explanation in the consent form, it is unconstitutional and her due process rights have been violated by use of the deceptive form; and the Acting Surrogate's finding that revocation is not in the best interests of the child.

First, a Bronx Custody Lawyer said the court did not agree that as matter of statutory construction, section 115-b must be deemed to require all of its relevant provisions to be inserted in the consent form. A statute must be construed according to the ordinary meaning of its words and resort to extrinsic matter, such as the legislative history, is inappropriate when the statutory language is unambiguous and the meaning unequivocal. Where a statute is clear, a court should not attempt to cure an omission in the statute by supplying what it believes should have been put there by the Legislature for the judiciary should not substitute its wisdom for that of the Legislature. Regardless of the contents of any memorandum written by a drafter of legislation, the legislation stands for what its words manifest and not the inner thoughts of a draftsman. There is no necessary correlation between what the draftsman of the text of the bill understands it to mean and what members of the enacting legislature understood. Since the Legislature made its intent clear when it mandated the insertion of particular information in the consent form, the absence of any provision that the entire statute be explained in the form demonstrates the intent not to require for more detailed information.

Second, on the issue that absent the judicial construction the statute is unconstitutional, the court did not find it proper to reach the natural mother’s complex due process argument since she clearly lacked the standing to raise them. Under settled standing principles, those who challenge a statute as unconstitutional must demonstrate actual or threatened injury to a protected right and that they have been aggrieved by the unconstitutional feature of the statute. Constitutional litigants are not ordinarily entitled to raise the unconstitutionality of a statute as it is applied to others. Here, the natural mother was not directly aggrieved by the alleged defect in section 115-b. The natural mother’s testimony that she believed she had 30 days in which to revoke her consent does not actually imply that she was unaware of the consequences of revocation since she later admitted that the statute had been explained to her by her lawyer pursuant to her testimony. She was bound by her position at the trial as expressed by her lawyer who explicitly conceded that she had not been misled by the consent form. This concession, a formal judicial admission that she was not misled, was deliberately made for the express purpose of limiting and defining the facts in issue and was successful in preventing the adoptive parents from exploring her knowledge of the effects of revocation. Since the admission was clearly conclusive on her, she has suffered no injury-in-fact from the allegedly misleading language in the consent form nor has she been otherwise prejudiced by the asserted unconstitutional feature of section 115-b.

Notably, the court has considered whether or not there is indeed an exception to the injury-in-fact requirement for standing which would permit the natural mother to pursue her constitutional thrust. Exceptions relating to the First Amendment area or where there is a close nexus between the present party and the person(s) whose constitutional rights are alleged to be violated are not relevant to the case. Neither is the void-statute exception under which a statute may be attacked by someone otherwise affected by it but not aggrieved by its unconstitutional feature. The exception is available if the statute can be found unconstitutional as to others not before the court and the constitutional and unconstitutional features cannot be meaningfully severed, thus rendering the entire statute invalid. Under the void-statute exception, a facial challenge to a statute may be made by a person not aggrieved by the unconstitutional feature of the law if the constitutional sections cannot be given legal effect without the unconstitutional ones or when the valid operation of the statute is so restricted by nullification of the unconstitutional feature that the Legislature would not have intended the valid provisions to stand with the invalid provisions stricken. The test, applied with liberality in the State, is whether, if partial invalidity had been foreseen, the Legislature would have desired that the statute be enforced with the invalid part eliminated or whether it would then have rejected the statute altogether. Here, the void-statute exception is not available to provide standing to the natural mother because the statute can survive without the allegedly offending provisions of section 115-b. If the provisions of the statute applicable to extra-judicial consents are void, they can be severed, leaving other valid provisions which would still permit private placements where the consent has been executed before the adoption court or where the extra-judicial consent contains no language concerning irrevocability. Thus, if paragraph (d) of subdivision 1 of section 115-b were deleted, a viable scheme for private placement adoption would still remain, while to strike all of section 115-b because of the existence of the challenged paragraph would extinguish all statutory authority for private placements based on consent and jeopardize the validity of all such adoptions currently in process. Thus, the void-statute exception was not available to the natural mother.

Indubitably, state courts can follow their own jurisprudence in determining whether a party has standing to raise a Federal constitutional question and New York generally has shown a more permissive attitude toward standing than the Federal judiciary. Where the merits of appeals actually have been reached because of the recurring nature of publicly significant questions constantly rendered moot by the time they reach the appellate level or because a significant public question has recurred and the appellate divisions are divided, there have been no significant countervailing interests to reaching the substantive issue. Here, to ignore standing principles because of the natural mother’s personal misfortune would not only create a new exception to standing requirements but could result in grave and perhaps tragic consequences to others currently involved in the adoptive process. While the court has not reached the merits of the constitutional issue, a declaration that the extra-judicial consent portions of section 115-b are unconstitutional would be applicable to all such adoptions not yet finalized. Any attempt to limit the effect of such a declaration by restricting it to consents executed in the future would place the court in the untenable position of declaring that the statute, or some portion of it, is unconstitutional because it authorizes misleading consent forms while at the same time precluding all persons who have executed consents under the void statute from challenging it, with the exception of the natural mother herein, who was not aggrieved by the statute or the form.

Lastly, the adoptive parents did not waive the issue of standing or that it was even waivable. In contending that the Court should not reach the issue as to the correctness of the form because of the concession made by the mother's attorney, the adoptive parents clearly attacked the natural mother’s standing. Besides, lack of standing in the context of the constitutionality of a statute is not a matter for waiver by parties, for it is the courts which must decide whether the parties have a sufficient stake in the litigation to necessitate constitutional adjudication, and one party does not have the ability to confer standing upon another. Moreover, there was no basis to upset the formal judicial admission made by the lawyer who represented the natural mother at the hearing. While it is true that a party may be relieved from the terms of a stipulation made in open court by her attorney when it is evident that the attorney's understanding of the stipulated terms differ obviously and radically from the perception of the adversarial party, none of the instant litigants claim that the attorney did not understand the import of his concession. When the obstetrician was asked to reveal the contents of the natural mother’s conversations with him concerning the child adoption, her lawyer objected and made the categorical declaration that his client was not misled by the consent form. For this reason, he succeeded in excluding presumably damaging evidence. It is simply irrational to conclude that he could have misconceived the import of his straightforward declaration. Furthermore, the court could not find any reason to agree that the admission was not binding because the natural mother’s lawyer should have been disqualified on the ground that his testimony was necessary on the issue of C's awareness of her rights and because his conduct at trial advanced his own interests in escaping the consequences of his failure to apprise her of her rights. Despite the fact that it is highly questionable whether a civil judgment can be overthrown by a posttrial claim of conflict of interest, the natural mother here made no such claim, and it would be highly unfair for the court to find her attorney guilty of such conduct. The court is under the obligation to respect a party's choice of trial counsel and should not readily interfere with an attorney-client relationship. To presume that the natural mother’s trial counsel did not testify that she was misled by the form because he had a conflict of interest is to make a factual determination that she was misled in the face of her admission that the statute had been explained to her; her lawyer's declaration in her presence that she was not misled; the Acting Surrogate's finding that she was not misled; and the absence of any claim by her present counsel or his client that his predecessor should have testified. Clearly, there was no basis for a finding that the lawyer performed otherwise than in accordance with ethical requirements and no basis either to criticize or condemn him.

To sum it up, the natural mother’s unhappiness should not be transformed into a multiple tragedy for others currently engaged in the adoptive process; nor should this case become the springboard for returning the State to the deplorable situation that prevailed before the enactment of section 115-b. Indeed, the Acting Surrogate found that the best interests of the child were actually best served by adoption. The court found that this was proper. If the statute really has defects, the cure is with the Legislature. Thus, the court affirmed the judgment appealed from, without costs or disbursements.
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