ATTORNEY ADVERTISING
PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME

#305 Third Department Caselaw Round-Up for February 16, 2012, Part 5 of 6

March 1, 2013

305 Post 02-16-12, Part 5 Third Department February.pngThe first case is significant and novel insofar as it deals with the imposition of multiple permanency planning goals which, by their very nature, are inherently contradictory. Only one goal is permitted by statute. Thus, an order with more than one goal virtually guarantees a reversal, as here.

The second case is an example of what not to do if you are an out-of-state litigant involved in custody proceedings in New York.


305 Post-2 St. Lawrence County.pngCase #164
#511718
In the Matter of Dakota F.
St. Lawrence Family - Potter
Issues: Adoption; Mootness; Permanency Hearing; Placement
Cited statutes: FCA Art. 10-A
Reversed

The mother's child was placed in the care and custody of DSS. During a time when the permanency planning goal (PPG) was return to parent (RTP), DSS nonetheless submitted a permanency hearing report that recommended that the PPG be changed to placement for adoption (PFA). This often happens when a child has been in DSS custody for over fifteen (15) months or when one or more of the parents have chronically failed to abide by the terms and conditions of one or more court orders.

In this case, after a hearing, the family court issued an order which stated that the PPG was "concurrent plan of return to parent and placement for adoption." Seriously. Two diametrically opposed options. And the plan is to do both? Um, yeah. Obviously, this order had to be appealed.

The Third Department found several problems with this case.

First, the applicable statute requires an "age-appropriate consultation with the child who is the subject of the permanency hearing". That did not occur in this case. The Third Department implies that this error, alone, may not be enough to require a reversal (though I think it should, given the substantial, potentially adverse, consequences to both the parent and the child, namely adoption).

Second, the subsequent entry of an otherwise superceding permanency hearing order does not necessarily render an appeal of the prior order moot, thereby preserving this appeal.

Third, despite the entry of yet another subsequent order, namely an order terminating the appellant-mother's parental rights, this does not necessarily render this particular appeal moot because 1) the Third Department had not yet received a copy of such order, 2) the Third Department had been informed that the appellant-mother in this appeal was appealing the termination order as well, and, most importantly, 3) "even if entry of that order did render this appeal moot, the exception to the mootness doctrine applies because the issues here are substantial, novel, likely to be repeated, and typically evade review".

The Third Department made clear that it was indignant over this matter in the third footnote where it stated that "we note that this is not the only time Family Court has improperly ordered concurrent permanency goals", and it cites to two (2) cases. In other words, Family Court, let this decision be a lesson to you to knock it off.


305 Post-3 Saratoga County.pngCase #165
#511968
In the Matter of Derek P.
Saratoga Family - Jensen
Issues: Best Interests; Custodial Interference; Custody; Motions
Cited statutes: FCA Art. 6
Dismissed

The parents initially consented to sharing joint legal custody of their child, with the mother having primary physical custody. A year later, the father filed a petition for custody, seeking to modify the prior order to grant him sole legal custody of the child. The father also sought to find the mother to be in violation of the prior order due to her alleged denial of telephone access to the child.

Court appearances ensued, with the father missing one of them (never a good idea!). The petitions were thereafter scheduled for trial on a date certain. The father's attorney then requested that the trial date be moved forward (for reasons which the decision does not clarify), which was granted by the court.

The father was in Florida while these events had transpired and he apparently informed the court that he was unhappy with this development and that he wanted to be assigned new counsel. However, and unfortunately for him, the father failed to request an adjournment of the new trial date Nevertheless, the father appeared in court for trial on the new trial date only to discover that the trial date had been rescheduled yet again, this time to the day after the original trial date.

Still with me? In the meantime, the father was assigned new counsel who then twice sought (unsuccessfully) to adjourn the third trial date. Then, the father - despite being aware of the new trial date - left the state, returned to his native Florida, and then, apparently decided to visit Louisiana, for health reasons.

When the matter came on to be heard for trial, the father failed to appear, despite admitting that he had been advised by his attorney that the attorney's requests for further adjournments had been denied. The court then contacted the father by phone and offered him the possibility of testifying electronically, which the father declined to do. The father further claimed that he had not been afforded sufficient time within which to confer with his new attorney. When the court questioned why the father had not taken the time to meet with his court-appointed attorney, the father stated that "he was unwilling to risk his health by returning to the extreme weather of a New York winter".

Unsurprisingly, the court then entertained the mother's motion to dismiss the father's petitions (presumably for failure to prosecute) and the father's petitions were dismissed.

The father appealed (though I have no idea why, as he had no valid ground to do so).

The Third Department noted that a party cannot appeal an order that has been entered upon a default, as here. Furthermore, the father gave no reason for not being able to testify telephonically - only that he simply did not wish to do so. The classic "I don't wanna" defense. Yeah, that always works well.

A word to the wise: courts do not like petulant litigants.

Another note: when dealing with out-of-state litigants and trial dates, I very strongly advise the use of certified mail, especially in the event that this sort of thing happens and the client decides to blame the attorney. Always leave a record.