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#288 Third Department Caselaw Round-Up for January 19, 2012, Part 2 of 4

146 Post 01-19-12, Part 2 Third Department January.pngI love to write (can ya tell?). And, as a writer, one of the first lessons you learn is to lead with a great opening line and close with a great ending line. And, as a writer, it should go without saying that one should also be a great reader. Being a lover of great literature, and of the Russian (and English) greats in particular, I always loved Tolstoy’s opening line from his opus, “Anna Karenina”: “All happy families resemble one another, each unhappy family is unhappy in its own way.” Think about that.

Perhaps this great quote should be emblazoned above the door of every family court in the land. But, then again, it is a truism so self-evident as not to need trumpeting. We all know it, and feel it in our bones. Dysfunction wreaks its own special havoc on each and every one of us. None of us are immune.

And so it is with just about every case that I have read involving the termination of parental rights. There are always all sorts of excuses. Always. And, inevitably, it is always the children who pay the price for their parents’ inability to care for them.

29-26 Post Cortland County.pngCase #132 #511760
Matter of Marquise JJ., ___ A.D.3d ___, ___ N.Y.S.2d ___ Cortland Family – Campbell Issues: Clear and Convincing Evidence; Custody; Foster Care; Mental Illness; Paternity; Permanent Neglect; Prison Contact; Prison Visitation; Relocation; Suspended Judgment; Termination of Parental Rights Cited statutes: SSL §384-b Affirmed

The purported father was in prison when the child was removed from his mother’s care and custody, only two weeks after his birth, upon the mother’s admission to a psychiatric facility. Thereafter the child was placed with his father’s aunt, in Queens, in her capacity as a foster parent.

The mother was later discharged and the child returned to his mother’s care. The mother then relocated to Cortland County, without the father’s knowledge. Not long thereafter, the child was again removed from his mother’s custody and again placed in foster care, this time with a new foster parent. DSS then located the father at a correctional facility in Queens and notified him of his child’s placement in foster care. The father, realizing that he was not a custodial resource for his son, sought the intervention of his girlfriend, asking DSS to place his son in her custody and allow him phone contact with the child. Instead, the child remained with the initial foster parent but the father was accorded the ability to call his son at the foster home.

Thereafter, the father was transferred to another prison. However, the new prison required inmates to place collect calls instead of making calls via inmate accounts. As a result, the father ceased making calls to the child altogether. The father then wrote to DSS, requesting that the child be placed with the father’s aunt, as he was originally. Unfortunately for the father, the aunt declined to accept custody of the child. Thereafter, the father made minimal efforts to contact his son. DSS then filed a TPR petition against the father. A hearing was held and the father’s parental rights to his son were terminated. The father appealed.

Even before the father was adjudicated to be the child’s father, via genetic testing for paternity and an order of filiation, DSS diligently sought the father in prison. DSS then ensured that the father was notified of his son’s foster care placement and DSS provided him with the child’s permanency hearing reports, initiated correspondence with him concerning the future of his child, and responded to his various inquiries. DSS encouraged the father to contact the child by phone and, when phone contact was not feasible, by mail.

On appeal, the father argued that DSS should have arranged prison visitation with the child. However, the father never requested this prior to the appeal. Furthermore, had the father done so in a timely manner, it likely would have been denied, given the child’s age and the distance to the prison.

The father’s attempts at contact with his son consisted of several phone calls during a brief period and only two (2) cards. The father contacted DSS only once by phone and twice by mail. Tellingly, the father failed to plan for his son’s future and failed to provide DSS with any meaningful information as to his release from prison.

Lastly, the father complained that he was not offered a suspended judgment, as the mother was. However, such a resolution would have proved to be unwieldy given the father’s likely length of incarceration. Besides, suspended judgments are limited to one (1) year “with a one-year extension to be granted only in exceptional circumstances” which simply did not exist in this case.

The child’s mother’s rights in this case were not terminated. Instead, she consented to the entry of an order finding permanent neglect, together with a suspended judgment of one (1) year. However, in cases such as this, the remaining parent very often is found to have violated the terms and conditions of the suspended judgment, thereby allowing her parental rights to be terminated as well, thereby freeing the child for adoption.

Also, while the father’s aunt ultimately did file a petition for the custody of the child, it was basically too little too late, especially given the fact that the child had bonded with his foster parents as well as a former foster child whom the foster parents had adopted.

A hard lesson to learn here is also a simple one: long before a TPR is even on the horizon, it is extremely important to act swiftly to secure your rights as a parent, to be consistent in seeking and getting visitation with your child, and to document everything, especially any and all communications you may have with DSS or anyone acting on DSS’ behalf. As I tell all of my clients: DSS is not your friend. Never ever ever ever trust DSS. Do so and you will live to regret it.

The rule is simple: document everything. Keep a journal!

29-13 Post Franklin County.pngCase #133 #103562
People v. Borden, ___ A.D.3d ___, ___ N.Y.S.2d ___ Franklin County – Clute Issues: Criminal Charges Cited statutes: Penal Law §60.01 Affirmed

The defendant, then a 31-year old man, was charged with Rape in the Third Degree, among other things, when he engaged in sexual intercourse with his live-in girlfriend’s then 15-year old daughter. Yeah. Note to the girlfriend: choose your babysitters a bit more wisely.

The defendant pled guilty to a single count of Criminal Sexual Act in the Third Degree in exchange for a recommendation from the People of a sentence of five (5) years’ probation. On its face, this is an excellent deal. And that’s probably what the sentencing judge thought as well, perhaps too good a deal (especially since it is not allowed by law!). As such, the defendant was instead sentenced to four (4) years in prison with ten (10) years of post-release supervision. Unsurprisingly, the defendant appealed. However, before appealing, the defendant never moved to withdraw his plea (huge mistake!) and he never moved to vacate the judgment of conviction (another huge mistake), so these matters could not be addressed on appeal.

This is a well-reasoned case with several interesting nuances. The essence of the case is that because the defendant did not validly waive his right to an appeal, he therefore gets his appeal. However, because the sentencing judge never promised the defendant any specific sentence, and because the People’s recommendation of a sentence was only that – a recommendation – there is no reason to now allow the defendant to withdraw his plea – especially where he failed to do so before the appeal, thereby failing to preserve his right to raise this issue on appeal.

Once again, this is just another example of the need to remember to get it on the record! Because, if it’s not on the record, it’s as though it never happened. When in doubt, make damned sure it’s on the record. This is a hard lesson to learn and, yes, I learned it the hard way myself, early in my career.

Caselaw Round-Up Score Card:

Affirmed: 89 (66.92%)
Decision Withheld: 6 (4.51%)
Dismissed: 8 (6.02%)
Modified: 11 (8.27%)
Reversed: 19 (14.29%)

Total: 133