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#364 Third Department Caselaw Round-Up for April 26, 2012, Part 6 of 8

April 26, 2013

364 Post 04-26-12, Part 6 Third Department April.pngThe first case involves a wise judge presiding over estranged parents and, to my mind, doing the right thing (and the Third Department agrees).

The second case is the return of SSL §384-b. And you can guess how it ends.


364 Post-2 Otsego County.pngCase #239
#512824
In the Matter of Wendy Q.
Otsego Family-Lambert
Issues: Credibility; Custody; Divorce; Family Offenses; Orders of Protection; Preponderance of the Evidence; Relocation; Witnesses
Cited statutes: FCA Art. 8
Affirmed

The married parents of a son were living apart. Presumably, the marital state was California, from which both parties moved. The father relocated to Michigan with his son and the mother relocated to New York. The son thereafter came to live or visit with his mother in New York.

The mother filed a family offense petition against the father, alleging aggravated harassment and reckless endangerment via three telephone calls. As a result, she was granted an ex parte temporary order of protection by the court. Thereafter, the mother filed a violation petition against the father, alleging that a voice-mail message that the father had left on the mother's phone rose to the level of a violation of said order.

After a hearing, the court dismissed the mother's family offense petition but sustained her violation petition, finding that the father had indeed violated the temporary order of protection. However, because the violation was a slight one (and probably because the underlying family offense petition was weak tea to begin with), the court found the father in contempt but merely admonished the father.

The mother appealed.

The Third Department found that the record illustrated that the mother and father remained estranged. The further implication is that the mother was using the son as a pawn to induce the father to agree to a divorce before she would agree to return the son to the father's custody in Michigan. Lovely woman. As one might expect, the father lost his temper and had a few choice words for the mother - which he stupidly allowed to be left as a voice-mail message - in violation of an order of protection.

I suspect most judges see themselves as nothing other than referees in situations like this.


364 Post-3 Rensselaer County.pngCase #240
#512488
In the Matter of Maria E.
Rensselaer Family-Cholakis
Issues: Abandonment; Adoption; Best Interests; Clear and Convincing Evidence; Foster Care; Mental Illness; Paternity; Placement; Prison Visitation; Removal; Termination of Parental Rights
Cited statutes: SSL §384-b
Affirmed

After the child was born, she was removed from her mother, who was mentally ill, and placed in the care of DSS. The child has been in foster care ever since she was placed with DSS. The child's paternity was unclear though confirmed after genetic testing, and an order of filiation was entered.

The crux of the case is this: "despite persistent efforts for almost two years by caseworkers to contact [the father], who was in and out of prison, [the father] never contacted the caseworkers or responded to their letters, failed at any point to inquire about [the child's] health or welfare or to provide contact information to the caseworkers after his many address changes, and never visited with or attempted to contact or communicate with [the child]". Such a doting father.

Needless to say, DSS filed a petition to terminate the father's parental rights on the ground of abandonment and - shockingly! - after a hearing, prevailed. The child was then freed for adoption by her foster parents.

God only knows why the father appealed.

The Third Department found substantial evidence of abandonment by the father of the child in the record. It's almost as though the father made a hobby out of shirking his parental responsibilities to his young daughter. I'm certainly sure that's how DSS and the trial court saw things. So, be a father or lose the right to be called a father. It's that simple.