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#287 Third Department Caselaw Round-Up for January 19, 2012, Part 1 of 4

145 Post 01-19-12, Part 1 Third Department January.pngThe more I post these caselaw round-ups, the more new issues inevitably arise. While I have tried to keep the number of issues low (and, therefore, much more manageable), every now and again a novel fact pattern will appear which demands the creation of a new issue. Currently, there are about 120 issues that show up in these various cases – and I’m sure that this is by no means exhaustive. Still, I’m doing my best to limit them, otherwise they will soon explode out of control, thereby rendering any description of these hundreds of cases effectively meaningless.

Ideally, the best way to compare and contrast these cases is via the issues they represent. The issues might be exactly the same in a pair of cases, but because the fact pattern is so different, the end result is completely different as well. And, as you have seen, EVERY case is unique unto itself. And THAT is why practicing law in the areas of family law, matrimonial law, and criminal law is so much fun: never a dull moment. Every day is different; every case is different. Reminds me of that Chinese curse/blessing: may you live in interesting times.

29-23 Post Broome County.pngCase #130 #511051
Aylward v. Bailey, ___ A.D.3d ___, ___ N.Y.S.2d ___ Broome Family – Connerton Issues: Criminal Charges; Custody; Domestic Violence; Drug Abuse; Extraordinary Circumstances; Visitation Cited statutes: FCA Art. 6 Reversed

The parents have three children and both the mother and the father sought custody of them. During the pendency of the litigation, the father left the children with their mother and had no contact with them for a month. The court later awarded custody to the father, apparently unaware of this one-month absence. The mother then re-filed for custody based upon the father’s prior one-month absence. Once again, the father absented himself from the children during the pendency of the litigation. Thereafter, both the mother and the father filed petitions to modify the custody order to allow primary physical custody of the children to be with the mother. But then the mother was arrested for selling drugs and the father withdrew his petition and resumed custody of the three children. But wait, there’s more!

Apparently fed-up with the behavior of both parents, the maternal grandmother filed a petition for custody. After hearings on both the mother’s petition and the grandmother’s petition, the court issued an order granting custody to the grandmother. Of course, the father appealed.

The Third Department found that while extraordinary circumstances certainly existed as to the mother, given her apparent untreated drug abuse problem and pending criminal charges, they did not exist as to the father.

Sure, the father wasn’t the greatest, but he certainly cared for his children. Furthermore, the father had adequate and uncontroverted reasons for his two absences from the children’s lives. The first absence was due to his leaving to care for his own grandmother. The second absence, for three weeks, was pursuant to an informal negotiation with the mother. However, as soon as the mother was arrested, the father immediately retrieved the children and immediately contested the maternal grandmother’s petition for custody.

In other words, the father showed the level of care and concern for his children that would be expected of a father. While he might have other shortcomings as a father, none rose to the level of divesting custody of the children from him in favor of the grandmother. And, here, the Third Department sets forth an important quote from the grand-daddy of extraordinary circumstances cases, Bennett v. Jeffreys, 40 N.Y.2d 543 (1976): even though it may appear, from the record, that a grandparent could “do a better job of raising the children”, it is not the place of the court to divest a parent of his or her right to custody of their children on that basis alone. You basically have to screw up big-time to lose the right to have custody of your children.

There’s a reason why this issue is called extraordinary circumstances. Between parents, the test is merely a change of circumstances, followed by a best interests analysis. Between parents and non-parents (which includes grandparents), the test is one of extraordinary circumstances, followed by a best interests analysis. And, as you can imagine, extraordinary circumstances is much more difficult to prove (but not impossible).

29-11 Post Clinton County.pngCase #131 #512003
Matter of Jessie EE., ___ A.D.3d ___, ___ N.Y.S.2d ___ Clinton Family – Lawliss Issues: Absence from School; Behavioral Issues; Best Interests; Persons In Need of Supervision; Placement Cited statutes: FCA Art. 7 Affirmed

And now a PINS (Person in Need of Supervision) case, something you rarely see on appeal. And there’s a good reason for that, as you will soon see.

The first thing that comes up is the fact that this matter is apparently an appeal only from the order of disposition, not the order of fact-finding; in other words, the child (through her attorney) does not challenge her adjudication as a PINS, but merely her placement with DSS as a PINS. Why is this important? Well, if you attack the basis of being adjudicated as a PINS, I would think you’d stand a much better chance of prevailing on an attack on placement with DSS as a PINS. However, the fact pattern here is such that it probably didn’t matter either way.

Second, another issue that often comes up in PINS cases is the possibility of DSS instead bringing a case for neglect against the respective parents. If DSS can be convinced that the child is merely reacting to a bad situation already in the home – which is either not being addressed by the parents or is being created by the parents – then a PINS case will often metamorphose into a neglect case. I’ve seen this happen many times. However, again, here, it seems that the child is completely out of control, without either parent being to blame.

Another important thing to remember about PINS cases is this: if the child is already out of control, it is very likely that the parents themselves have approached the county attorney to have their child adjudicated as a PINS. If that is the case, the idea of placement with the parents/family is counter-intuitive since it is self-evident at that point that the family is reaching out for help (since they cannot deal with this matter on their own anymore).

In this particular case, the child was totally out of control. She had been absent 73 days from school for which 70 were unexcused (which – right there – could potentially expose either parent to the charge of educational neglect!). She engaged in dangerous behaviors which included running away from home, threatening suicide, engaging in unprotected sexual intercourse, getting pregnant, starting a fire in her bedroom closet, and attempting to jump from a moving motor vehicle. Yeah, that’s totally out of control.

Once you learn the facts of the case, you have to ask yourself why the appeal only pertained to placement with DSS. Because it seems to me that placement with DSS was very likely the only viable alternative here. While I’d be willing to bet that the child’s family is seriously dysfunctional, it’s nevertheless obvious that they cannot control her behaviors, thereby making her placement with DSS all but inevitable. I would imagine that only DSS had the manpower and resources to best address the many behavioral problems of this child.

But here’s the really weird thing about this case: the parents are not the ones who initiated it – the child’s high school principal is! Which leads me to believe that DSS probably very seriously considered filing a neglect petition against the parents. Just let that sink in: this child is this severely at risk, but it is her principal – and not her parents – who steps up. Very sad (though very admirable for the principal!).

A final note: never let your child’s absences from school be unexcused. Why? Because if you are stupid enough to allow your child’s absences to accrue to the point of double digits, then you are basically looking to have DSS file a petition against you for educational neglect. I always tell parents the same thing: never let absences (excused or unexcused) get into double digits if you can help it.

Caselaw Round-Up Score Card:

Affirmed: 87 (66.41%)
Decision Withheld: 6 (4.58%)
Dismissed: 8 (6.11%)
Modified: 11 (8.40%)
Reversed: 19 (14.50%)

Total: 131