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#323 Third Department Caselaw Round-Up for March 29, 2012, Part 1 of 11

March 31, 2013

323 Post 03-29-12, Part 1 Third Department March.pngSSL §384-b returns yet again, resulting in a termination of parental rights. Beware SSL §384-b! Also, this first case is a lesson in making sure that you file a notice of appeal as to each and every order - just in case.

And just in case you needed a harsh lesson in the timeliness of filing a notice of appeal, look no further than the second case. Ouch.

So, here's a great rule of thumb: when in doubt, make sure that you file a notice of appeal of any dispositional order well within thirty (30) days of receipt of the order, noting that the calendar starts the moment the court placed the order in the mail (so immediately scrutinize that postmark very, very closely!) or handed it to you or your attorney.


323 Post-2 Albany County.pngCase #191
#510619
In the Matter of Alyssa L.
Albany Family-Duggan
Issues: Alcohol Abuse; Drug Abuse; Foster Care; Mental Illness; Neglect; Orders of Protection; Permanent Neglect; Placement; Psychological Evaluations; Removal; Supervised Visitation; Surrender; Termination of Parental Rights
Cited statutes: FCA Art. 6, §1024, 1051; SSL §384-b
Dismissed

All you really need to know about this case is found in the second sentence of the second paragraph of the decision: "A neglect investigation began in May 2007, during which the girls reported that [their mother], due to an addiction to multiple pain medications and substances, regularly fell asleep while cooking or driving (!!!!!), had been involved in several accidents, and was often passed out when they returned home from school with cigarettes or candles left burning, causing them to be extremely fearful of being in her care."

What more do you need to know about this case? Right off, I feel only pity and sympathy for all of the members of this family. The girls are scared out of their minds that their own mother might unwittingly kill them - perhaps in their sleep! - while the mother seems to be so far gone that she is just barely holding on to reality. Mom looks like she could use an entire year of intensive inpatient drug treatment and mental illness counseling. God only knows what sort of misfortunes in life brought the mother to such a precipice. However, her daughters should not have to pay for her poor choices in life.

Despite orders of protection prohibiting the mother from engaging in her dangerous behaviors, the mother stubbornly continued in her conduct and her daughters were removed from her home.

The mother later consented to a finding of neglect without admission. As a result, the mother was placed under of an Order of Supervision which required her to cooperate with DSS with regard to a plethora of services offered to her. The mother also had supervised visitation with her daughters, but only at their discretion.

Sadly, the mother failed to progress under these circumstances and DSS filed a petition to terminate her rights to the children. After the fact-finding hearing, the mother was adjudicated to have permanently neglected her daughters. The mother then surrendered both daughters.

The mother appealed from the fact-finding order but not the order approving her voluntary surrender (which disposed of the matter).

The consequences of this choice prove dire. Why? Because only dispositional orders can be appealed pursuant to a permanent neglect proceeding filed under SSL §384-b. If this were simply a neglect (not a permanent neglect) proceeding under FCA Art. 10, then there would be no problem. As such, the appeal is dismissable.

So, the lesson here is this: if you have to choose between appealing an order of fact-finding and an order of disposition, at the very least, appeal the order of disposition. Otherwise, appeal each and every order.


Case #192
#512475
Ucci v. Ucci
Albany Family-Walsh
Issues: Custody; Stipulation; Visitation
Cited statutes: FCA Art. 6, Art. 11
Dismissed

The parents of two children reached a stipulation on custody and visitation. The court then entered an order based on their stipulation (as is quite common). However, the father apparently got cold feet and moved to vacate the order based on the stipulation. The court denied the motion and the order denying the motion was mailed to the respective parties on October 20, 2010.

The father then filed a notice of appeal on June 20, 2011, some eight months after having received a copy of the order.

Um, no. That's not how it works.

In this particular instance, the father had thirty-five (35) days within which to file the notice of appeal, since the order was sent via mail. Had it been handed to him, he would have had thirty (30) days within which to file. But eight months? I don't think so. Therefore, the latest conceivable date that the father had to file his notice of appeal would have been November 24, 2010. However, the safer date would be November 23, 2010, if, when counting out the 35 days, one starts with the date on which one received the order in the mail. And, even then, you had best be sure that Day 35 does not fall on either a weekend or a holiday on which the courts are closed.