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#730 Third Department Caselaw Round-Up for October 17, 2013

730 Post 10-17-13 Third Department October.pngAnd here is Part 2 of that weird case ping-ponging between Schuyler County Family Court and Tompkins County Family Court, from blog post #725.

730 Post-2 Tompkins County.pngCase #631 #514860/515061
Matter of Victoria XX.
Tompkins Family-Sherman Key Issue: Physical abuse of children results in placement Affirmed

First of all, a hearing was not required on the attorney for the children’s motion to modify the permanency hearing order and permanency plan to return the niece and nephew back into the care of DSS. The reason is because “where, as here, a child is placed with a relative in [permanent neglect] proceedings, Family Court retains continuing jurisdiction over the parties and the child and may modify or extend its order, if the relative fails to institute a proceeding for the adoption of the child within six months after the entry of the order.”

And while the aunt and uncle claim that they did not neglect their nephew the record states otherwise, especially given the unique problems experienced by the nephew.

“Here, the nephew was diagnosed with post-traumatic stress disorder, and was enrolled in a special education program. His treating psychotherapist testified that his disorders are characterized by hypervigilance, overreactivity, and motor, verbal, and emotional delays.” The child was also described as being “emotionally fragile [and] had frequent violent tantrums during which he broke and threw things and hit and kicked people.”

So, CLEARLY, this kid is majorly messed up. So what did his aunt and uncle do to control his odd behaviors?:
1. They restrained “him for extended periods”;
2. They spanked him;
3. They forced “him into cold showers”;
4. They bound “his hands and mouth with duct tape”!!!!!;
5. They taped his hands together;
6. They struck him with a belt; and 7. They slapped him.

Do you really wanna hear their excuses for this outrageous behavior? Well, here it is anyway: “the showers were intended to help the nephew calm down after tantrums, using cool rather than cold water, and the tape was used only once on the child’s hands to cure a wart.” Uh-huh. Not buying it. And, apparently, neither did the Family Court or the Third Department.

Probably most worrisome of all was the fact that “additional testimony revealed that [the aunt and uncle] failed to fully understand or acknowledge the nephew’s special needs … [and they] were not receptive to [the] suggestion that the nephew needed a higher level of services.” Furthermore, the aunt and uncle “turned down an offer to transfer [the nephew] into a different educational program because they did not feel [that] he needed it.”

Furthermore, the uncle was so delusional that he “testified that they did not believe the recommended services were relevant to the nephew, and further stated that he was uncomfortable with the nephew’s diagnoses because, in the uncle’s view, [the nephew] was simply a child that needed extra attention.” And maybe a lot of spankings, beltings, and cold showers as well, huh!? Jesus!

And while the Third Department agrees with the Family Court that the aunt and uncle are certainly not appropriate resources to adopt either the nephew or the niece (who was adopted by her foster parents during the pendency of this appeal), it states in Footnote #3 “that it might in fact be in the [nephew’s] best interests to be allowed to retain some contact with his family”, namely the appealing aunt and uncle.

Should you need your case appealed, remember to file your Notice of Appeal IMMEDIATELY! If you have any questions about filing a Notice of Appeal, then CONTACT ME IMMEDIATELY!

Contact me immediately to schedule A FREE ONE HOUR OFFICE CONSULTATION so that we may be able to determine if you have a case that may be successful on appeal.