Published on:

#397 Third Department Caselaw Round-Up for July 5, 2012, Part 1 of 4

396 Post 07-05-12, Part 1 Third Department July.pngThe first case deals with a situation that is fairly common: that of a step-parent or significant other seeking visitation with the child he or she has become close to. Except, in New York State, with regard to such visitation, step-parents and significant others have no such right.

The second case brings up collateral estoppel, just as the first brought up equitable estoppel. Where equitable estoppel was ineffective in the first case, collateral estoppel is effective in the second. This is also another illustration of collateral criminal consequences, this time in a family law setting. More importantly, this case illustrates the importance of making an oral motion to dismiss the petition as failing to prove a prima facie case. It also shows the stark difference between certificates of disposition and certified transcripts of plea allocutions.

396 Post-2 Otsego County.pngCase #292 #512995
Palmatier v. Dane
Otsego Family-Lambert Issues: Best Interests; Equitable Estoppel; Visitation Cited statutes: FCA Art. 6 Affirmed

Because the decision is silent on some key points, I will have to make a few presumptions here.

A couple had a child together and then, presumably separated or began living apart from one another. The mother, and the child, then began living with a man who apparently grew to become quite close to the child. Presumably, the mother and her boyfriend (who described himself as “the child’s non-biological father”) had a falling out and separated as well.

The spurned boyfriend then petitioned the court for visitation with the child. Presumably, the mother and/or the father and/or the maternal grandmother of the child also petitioned the court for custody and/or visitation with the child, since the boyfriend’s petition was dismissed while an order of joint custody was granted in favor of the mother and the maternal grandmother, with visitation granted to the father.

The (now doubly) spurned boyfriend appealed.

The ex-boyfriend argued on appeal that the doctrine of equitable estoppel should apply here, requiring the family court to consider the child’s best interests with regard to his visitation with the child. He argued that he had a longstanding relationship with the child, presumably from living with the child and the child’s mother.

As noble as the ex-boyfriend’s appeal may (or may not) be, he hits a brick wall called Debra H. v. Janice R., 14 NY3d 576 (2010). This is a recent Court of Appeals case wherein it was “reiterated that a non-biological, non-adoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the non-parent has enjoyed a close relationship with the child and exercised some control over the child with the parent’s consent.”

That sound? That’s the sound of the ex-boyfriend’s appeal being shot down in flames.

396 Post-3 Rensselaer County.pngCase #293 #513729
In the Matter of Jewelisbeth JJ.
Rensselaer Family-Walsh Issues: Abuse; Collateral Estoppel; Criminal Charges; Neglect Cited statutes: CPLR ยง4401; 4011; FCA Art. 10 REVERSED

DSS filed a neglect (and, possibly, an abuse) petition against the father of a child who was also the step-father of another child, both of whom required hospitalization for serious injuries that appeared to be the result of child abuse.

At the fact-finding hearing, DSS “introduced into evidence a certificate of disposition from a criminal proceeding against” the father/step-father purporting to show that he had pled guilty to assault in the third degree. DSS then rested. In response, the father/step-father’s attorney requested an adjournment within which to file a written motion to dismiss the petitions. The court granted the attorney’s request.

In opposition to the attorney’s motion to dismiss, DSS submitted a certified copy of the transcript of the father/step-father’s plea allocution in the criminal court. The transcript of the plea allocution indicated that while the respondent was initially charged with 3 counts of assault in the second degree (on children, remember!!!!!), each of which was later reduced to assault in the third degree, the respondent ultimately pled guilty only to 2 counts of endangering the welfare of a child. Nevertheless, the transcript of the plea allocution clearly and “unquestionably provides the pertinent facts” underlying the crimes for which the father/step-father was charged.

The court granted the attorney’s motion and dismissed DSS’ petitions, with prejudice. DSS appealed.

First of all, “the collateral estoppel effect of a criminal conviction may serve to satisfy a petitioner’s burden of establishing neglect where the identical issue has been resolved in the criminal action.”

Basically, the Third Department found that the family court abused its discretion in effectively refusing to consider the transcript of the father/step-father’s plea allocution.

While I agree with this decision, I think it speaks volumes concerning the sloppy lawyering of both DSS and the respondent’s attorney in this particular case. The money quote? Here it is: “Here, [DSS] concedes, as it did in its opposition to [the] respondent’s motion, that the certificate of disposition, alone, was insufficient to establish the requisite factual connection between the criminal conviction and the conduct alleged in the petitions.”

Think about the implication of that sentence for a bit. In other words, DSS put in their entire case – and rested – apparently knowing full well that the substance of their case was sketchy since the certificate of disposition was essentially useless in proving neglect. Just another case of “hey, let’s throw @#$% against the wall and see what happens!”

The painful conclusion one is forced to make from this situation is this: had the respondent’s attorney orally moved to dismiss DSS’ case for failing to prove a prima facie case, it likely would have been granted. In fact, it would have to have been granted, given DSS’ own concession of the insufficiency of the certificate of disposition standing alone! However, because the respondent’s attorney made the motion in writing, it gave DSS the opportunity for one last bite at the apple – by getting into evidence, through an appended exhibit to opposition papers to a motion to dismiss, a (presumably certified) copy of the respondent’s transcript of his plea allocution, which conclusively proved the neglect that DSS was apparently unable to prove otherwise at trial!


Talk about snatching defeat from the jaws of victory!

The lesson here is simple: certificates of disposition, alone, are not always going to be enough to prove neglect. However, a certified transcript of the respondent’s plea allocution should almost always do the trick.