NY CHILD WELFARE - MAY COURT DIRECT CHILD WELFARE COOPERATION TO A NONRESPONDENT PARENT

In this case, after the domestic violence incident, child welfare only brought the abuse and neglect case against the abusive father but still wanted the victim mother involved with them 

MATTER OF SAPPHIRE W., 2025 NY Slip Op 662 - NY: Appellate Div., 2nd Dept. 2025:

"VENTURA, J.

APPEAL by the nonrespondent mother, in a proceeding pursuant to Family Court Act article 10, from an order of the Family Court (Robert D. Hettleman, J.), dated August 31, 2023, and entered in Kings County. The order, insofar as appealed from, placed the nonrespondent mother under the supervision of the Administration for Children's Services and the Family Court, and directed her to cooperate with the Administration for Children's Services in certain respects.

This appeal presents this Court with the opportunity to decide an issue of first impression in New York involving the rights of nonrespondent parents in child neglect proceedings, to wit: whether the Family Court may place a nonrespondent custodial parent under the supervision of the Administration for Children's Services (hereinafter ACS) and the court, and direct the parent to cooperate with ACS in various ways, in circumstances where the respondent parent resides elsewhere and the child has not been removed from the nonrespondent parent's home. Considering, inter alia, the well-established "interest of a parent in the companionship, care, custody, and management of his or her children" (Stanley v. Illinois, 405 US 645, 651) and the lack of any statutory authority permitting the challenged directives, we answer this question in the negative. Therefore, we conclude that, in this case, the Family Court improperly placed the mother under the supervision of ACS and the court, and directed her to cooperate with ACS in certain respects.

I. Background of the Proceeding

The father and the mother are the parents of a child born in 2022. In August 2023, ACS commenced this proceeding pursuant to Family Court Act article 10 against the father, alleging that he neglected the child by committing acts of domestic violence against the mother at her home in the presence of the child. In the petition, ACS asserted that the mother had previously contacted the police concerning domestic violence perpetrated against her by the father, and that the police returned to her home at a later date to conduct a wellness check. After the police left, the father, who was present in the home while the police were there, allegedly became physically and verbally aggressive with the mother, including by calling her names, slapping her, and forcibly ripping out some of her hair. In response to the mother's demand that he leave the home, the father allegedly urinated in a bathtub before departing. Shortly thereafter, the mother discussed the incident with a therapist, who reported it to ACS.

On the date ACS filed the petition, the Family Court held an initial conference. The mother, who was not named as a respondent, appeared at the conference, while the father did not. During the conference, ACS advised the court that the father "did not reside in the home" with the mother and the child, although he "would occasionally sort of show up." ACS requested that the court issue a temporary order of protection in favor of the mother and the child and against the father, while also seeking the child's "release[ ]" to the mother's custody under ACS's supervision. The attorney for the child objected to so much of ACS's request as sought supervision of the mother, who, by counsel, joined in the objection. The court advised the mother that she was "not accused of anything" but nonetheless granted ACS's request in full. By order dated August 31, 2023, the court, inter alia, placed the mother under the supervision of ACS and the court, and directed the mother to cooperate with ACS in certain respects. Specifically, the court required the mother to "maintain[ ] contact with ACS, permit[ ] [ACS's staff members] to make announced and unannounced visits to the home, and accept[ ] any reasonable referrals for services." The mother appeals.

II. The Issue Presented Falls Within the Exception to the Mootness Doctrine and Was Preserved for Our Review

Initially, although we agree with ACS's contention that the issues raised on this appeal have been rendered academic, we reject ACS's assertion that this appeal should be dismissed on that basis. On January 22, 2024, months after issuing the order appealed from, the Family Court issued an order of fact-finding and disposition that, among other things, awarded the mother sole legal and physical custody of the child. "It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (C.F. v. New York City Dept. of Health & Mental Hygiene, 191 AD3d 52, 61 [internal quotation marks omitted]). "Under the mootness doctrine, a court is ordinarily precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances" (Matter of Angel S. [Sadetiana J.], 173 AD3d 1188, 1189 [internal quotation marks omitted]). Since the order of fact-finding and disposition resolved this proceeding and effectively terminated the directives challenged by the mother (see Family Ct Act § 1088), the issues raised on this appeal have been rendered academic (see Matter of Abbygail G. [Christine Y.—Karen M.], 177 AD3d 878, 880; Matter of Angel S. [Sadetiana J.], 173 AD3d at 1189; Matter of Raven K. [Adam C.], 130 AD3d 622, 624).

Nonetheless, we agree with the mother and the attorney for the child that the exception to the mootness doctrine applies here. "If academic, an appeal is not to be determined unless it falls within the exception to the doctrine that permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would otherwise be nonreviewable" (Matter of Abbygail G. [Christine Y.—Karen M.], 177 AD3d at 880 [internal quotation marks omitted]). In other words, "[t]he exception to the mootness doctrine permits judicial review where the case presents a significant issue which is likely to recur and evade review" (Matter of Darcy M. [Gethylee C.], 195 AD3d 719, 720). Specifically,

"[t]he exception to the mootness doctrine is properly applied where there is `(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues'" (Matter of Chang v. Maliq M., 154 AD3d 653, 654, quoting Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715).

Here, the issue presented—whether certain provisions of the Family Court Act authorize a court in an article 10 proceeding to subject a nonrespondent custodial parent to supervision by a child protective agency when the respondent parent resides elsewhere and the child is not removed from the home—is "capable of repetition" in other cases (Matter of Lucinda R. [Tabitha L.], 85 AD3d 78, 84; see Matter of Carmen R. v. Luis I., 160 AD3d 460, 461). The Family Court, Kings County, recently considered the issue and observed that, in article 10 proceedings, ACS regularly seeks "an order of protection against the respondent, and an order releasing the child to the non-respondent parent, with ACS supervision," in circumstances where "the child [resides] exclusively with the nonrespondent parent prior to ACS filing a case against the noncustodial, respondent parent" (Matter of Danna T. [Miguel T.], 82 Misc 3d 723, 726 [Fam Ct, Kings County] [internal quotation marks omitted]; see Matter of A.B. [B.F.], 74 Misc 3d 1229[A], 2022 NY Slip Op 50251[U], * 1 [Fam Ct, Oswego County]). Although the issue was decided against ACS in that case, the court noted that, in its opinion, the relevant statute "ha[d] been misunderstood and misapplied in countless cases" (Matter of Danna T. [Miguel T.], 82 Misc 3d at 725). Further, this appeal involves a phenomenon that will typically evade appellate review, since the type of temporary ACS supervision at issue will ordinarily only remain in effect for a limited time period (see Matter of Emmanuel B. [Lynette J.]., 175 AD3d 49, 54; Matter of Elizabeth C. [Omar C.], 156 AD3d 193, 202; Matter of Anthony H. [Karpati], 82 AD3d 1240, 1241). We note that, contrary to the suggestion of ACS, "[t]he correct standard is whether the issue `typically'—not `necessarily'—evades review" (Matter of Crawford v. Ally, 197 AD3d 27, 32, citing Matter of Hearst Corp. v. Clyne, 50 NY2d at 715). The mother's argument also presents "a substantial and novel issue of statewide importance" (Matter of Elizabeth C. [Omar C.], 156 AD3d at 202), which "has not been the subject of prior appellate review" (Matter of Anthony H. [Karpati], 82 AD3d at 1241; see Cellular Tel. Co. v. Village of Tarrytown, 209 AD2d 57, 64).

Moreover, contrary to ACS's contention, the mother's argument is preserved for appellate review (see Matter of Victoria B. [Jonathan M.], 164 AD3d 578, 581). Under the circumstances presented, the attorney for the child's objections to ACS's proposed directives, which the mother adopted, "were sufficient to alert [the Family] Court to the relevant question and [thus] sufficiently preserved the legal issue for appellate review" (Geraci v. Probst, 15 NY3d 336, 342). We therefore reach the merits of this appeal.

III. The Family Court Improperly Imposed Supervision and Cooperation Directives upon the Mother

A. The Plain Text of Family Court Act § 1017 Did Not Authorize the Family Court's Directives

"[The] Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366; see Matter of Capruso v. Kubow, 226 AD3d 680, 682). Stated otherwise, the Family Court may not issue a directive or decide a particular issue "in the absence of any express grant of authority by statute" (Matter of Donald QQ. v. Stephanie RR., 198 AD3d 1155, 1157; see Matter of Haber v. Strax, 136 AD3d 911, 913). Similarly, the Family Court's "general parens patriae responsibility to do what is in the best interests of the children . . . cannot create jurisdiction . . . not provided by statute" (Matter of Zavion O. [Donna O.], 173 AD3d 28, 35 [citation and internal quotation marks omitted]).

Here, although the Family Court did not set forth the statutory basis for its challenged directives, the parties focus on Family Court Act §§ 1017 and 1027(d), disagreeing as to whether these statutes provided the court with authority to subject the mother to supervision by ACS and the court, or authority to require her to cooperate with ACS in various ways. As a result, we consider whether those statutes expressly authorized the court to issue those directives (see Matter of Zavion O. [Donna O.], 173 AD3d at 35; Matter of Haber v. Strax, 136 AD3d at 913).

"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 41 NY2d 205, 208). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereto" (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583; see Matter of Lisa T. v. King E. T., 30 NY3d 548, 552). "[W]here the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" (Matter of D.L. v. S.B., 39 NY3d 81, 87 [internal quotation marks omitted]). However, "[a]n examination of the legislative history is proper `where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the enactment'" (Saul v. Cahan, 153 AD3d 951, 952, quoting Matter of Auerbach v. Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198, 204). Indeed, "[a]ny statute or regulation . . . must be interpreted and enforced in a reasonable . . . manner in accordance with its manifest intent and purpose" (Matter of Sabot v. Lavine, 42 NY2d 1068, 1069). Thus, "`[a] court should avoid a statutory interpretation rendering the provision meaningless or defeating its apparent purpose'" (Matter of Carver v. Nassau County Interim Fin. Auth., 142 AD3d 1003, 1008, quoting Miglino v. Bally Total Fitness of Greater N.Y., Inc., 92 AD3d 148, 157, affd 20 NY3d 342). "Finally, it is well settled that a statute must be construed as a whole and that its various sections must be considered with reference to one another" (Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120).

"Family Court Act § 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home" (Matter of Paige G. [Katie P.], 119 AD3d 683, 684; see Matter of Lucinda R. [Tabitha L.], 85 AD3d at 86-87). Specifically, upon "determin[ing] that a child must be removed from his or her home" and securing a report from "the local commissioner of social services," the court must consider "whether there is a non-respondent parent, relative or suitable person with whom such child may appropriately reside" (Family Ct Act § 1017[1][a], [c][i]; see Matter of Timothy GG. [Meriah GG.], 163 AD3d 1065, 1068; Matter of Paige G. [Katie P.], 119 AD3d at 684). Upon finding "that the child may appropriately reside with a non-respondent parent," the court may "temporarily release the child directly to such non-respondent parent" so long as he or she "submits to the jurisdiction of the court with respect to the child" (Family Ct Act § 1017[2][a][ii]; [3]; see Matter of Emmanuel B. [Lynette J.], 175 AD3d at 59; Matter of Angel S. [Sadetiana J.], 173 AD3d at 1188). The order releasing the child to the nonrespondent parent "shall set forth the terms and conditions" that apply, which, as relevant to this appeal, "may include . . . a direction for [the nonrespondent parent] to cooperate in making the child available . . . for appointments with and visits by the child protective agency, including visits in the home and in-person contact with the child protective agency" (Family Ct Act § 1017[3]; see Matter of D.L. v. S.B., 39 NY3d at 90-91).

Contrary to ACS's contention, Family Court Act § 1017 did not provide the Family Court with authority to subject the mother to supervision by ACS and the court, or to require her to "cooperate" with ACS in the manner directed in the order appealed from (see Matter of Danna T. [Miguel T.], 82 Misc 3d at 726-728). Considering the "plain meaning" of the text and construing the statute's "various sections . . . with reference to one another" (Matter of Jefry H., 102 AD3d 132, 136 [internal quotation marks omitted]), the relevant provisions of Family Court Act § 1017 apply only when a court orders the removal of a child from his or her home and releases the child to the home of a nonrespondent and "noncustodial parent" (Matter of D.L. v. S.B., 39 NY3d at 91). By the plain language of the statutory text, the provisions requiring the nonrespondent parent, inter alia, to "submit[ ] to the jurisdiction of the court with respect to the child" and "to cooperate" with "the child protective agency" in various ways (Family Ct Act § 1017[3]) are only triggered "[a]fter [the] child is removed from the home" (Matter of Emmanuel B. [Lynette J.], 175 AD3d at 59; see Matter of Paige G. [Katie P.], 119 AD3d at 684). Here, since the court never "determin[ed] that [the] child must be removed from . . . her home" (Family Ct Act § 1017[1]), it did not have authority pursuant to Family Court Act § 1017 to impose the challenged directives upon the mother, no matter how "well-intended" the court's "goals" may have been (Matter of Zavion O. [Donna O.], 173 AD3d at 35).

B. The Legislative History Supports the Conclusion that the Family Court's Directives Were Improper

Although we need not review the legislative history of Family Court Act § 1017 because the statutory text is unambiguous and a "literal construction" thereof does not "lead to absurd or unreasonable consequences that are contrary to the purpose of the [statute]" (Saul v. Cahan, 153 AD3d at 952 [internal quotation marks omitted]), the legislative history nonetheless supports our conclusion.

Since "the institution of the family is deeply rooted in this Nation's history and tradition," and it is the vehicle through which "we inculcate and pass down many of our most cherished values, moral and cultural" (Moore v. East Cleveland, 431 US 494, 503), it has long been recognized "that freedom of personal choice in matters of family life is a fundamental liberty interest" (Santosky v. Kramer, 455 US 745, 753). Indeed, "a parent's interest `in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests'" (Matter of F.W. [Monroe W.], 183 AD3d 276, 280, quoting Troxel v. Granville, 530 US 57, 65; see Matter of Elizabeth C. [Omar C.], 156 AD3d at 203). "Similarly, . . . children have a parallel right to be reared by their parent" (Matter of F.W. [Monroe W.], 183 AD3d at 280 [alteration and internal quotation marks omitted]). Nonetheless, a parent's "interest in . . . family integrity . . . is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves" (Wilkinson v. Russell, 182 F3d 89, 104 [2d Cir] [internal quotation marks omitted]).

Against those background principles, article 10 of the Family Court Act, which includes Family Court Act § 1017 and which pertains to child protective proceedings, "erects a careful bulwark against unwarranted state intervention into private family life, for which its drafters had a deep concern" (Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 284 [internal quotation marks omitted]). Therefore, "the child protective statutes of Family Court Act article 10 have a twofold purpose: ` to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being,'" while also "`provid[ing] . . . due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his [or her] needs are properly met'" (Matter of Elizabeth C. [Omar C.], 156 AD3d at 204, quoting Family Ct Act § 1011). Stated more succinctly, the "purpose of article 10 [is] to provide a mechanism to protect children while preserving parental rights" (id. at 209).

The competing purposes of article 10 make clear that the Legislature sought to strike a balance between protecting children through "state intervention" while simultaneously shielding "private family life" from such intervention when it is "unwarranted" (Matter of Jamie J. [Michelle E.C.], 30 NY3d at 284 [internal quotation marks omitted]; see Matter of Elizabeth C. [Omar C.], 156 AD3d at 204). This makes sense, among other reasons, because a child protective agency's involvement with a family may itself have a negative impact on the parent or the child, even if it may be necessary in some circumstances to prevent or repair the effects of abuse or neglect. An ACS investigation, by its nature, intrudes upon the private lives of the parent and child to one degree or another (see Matter of Isabela P. [Jacob P.], 195 AD3d 722, 723; Matter of Anthony JJ. v. Joanna KK., 182 AD3d 743, 744) and, at least on occasion, may be traumatic for both the child and the parent (see Matter of Duran v. Contreras, 227 AD3d 1068, 1070; Matter of Daniel D. [Diana T.], 183 AD3d 727, 728). Indeed, in testimony to a New York City Council committee in 2020, the then Commissioner of ACS acknowledged that, while the agency's work in responding to reports of abuse and neglect "may be an essential lifeline for children when they are being seriously harmed or at imminent risk of harm, the child protective response and investigation by its nature can be intrusive and traumatic for families" (Written Testimony of David A. Hansell, NY City Council, Comm on General Welfare, Oct. 28, 2020, at 6, available at https://www.nyc.gov/assets/acs/pdf/testimony/2020/GWCommitteeHearing.pdf [last accessed Dec. 27, 2024]). Considering the intrusive and potentially traumatic impact of ACS involvement in a family's life, the disproportionate involvement of Black and Hispanic children in the child welfare system cannot be ignored (see id. at 2-6).

In any event, in furtherance of the goal of "safeguard[ing] the [child's] physical, mental and emotional well-being," Family Court Act § 1017 "help[s] the child . . . maintain[ ] family ties and reduc[es] the trauma of removal" by placing him or her with a nonrespondent parent or "suitable relative" (Matter of Harriet U. v. Sullivan County Dept. of Social Servs., 224 AD2d 910, 911; see Matter of Richard HH. v. Saratoga County Dept. of Social Servs., 163 AD3d 1082, 1083). Notably, in 2015, the Legislature enacted sweeping legislation that amended various statutes, including Family Court Act § 1017, in order to provide nonrespondent parents with "greater participation in abuse or neglect proceedings," while "also expand[ing] the options available to Family Court judges" when "craft[ing] appropriate orders respecting the rights of non-respondent parents [and] assuring the safety and well being of children who are the subjects of the proceedings" (Assembly Memo in Support, Bill Jacket, L 2015, ch 567 at 7). Among other things, the legislation "clarifie[d] the language of Family Court Act § 1017 by referring specifically to `non-respondent parent, relative or suitable person' as potential resources a court may consider after determining that a child must be removed from his or her home" (id. at 8).

Here, considering that article 10 serves, in part, to enact procedures preventing unwarranted state intervention in family life, and that the relevant provisions of Family Court Act § 1017, in particular, serve to help the child maintain family ties while respecting the rights of parents (see Matter of Jamie J. [Michelle E.C.], 30 NY3d at 284; Matter of Harriet U. v. Sullivan County Dept. of Social Servs., 224 AD2d at 911; Assembly Memo in Support, Bill Jacket, L 2015, ch 567 at 7), ACS's position is necessarily at odds with the statute's legislative purpose. The challenged directives constitute precisely the type of state intervention that the Legislature sought to avoid in circumstances when it is not warranted, particularly considering the impact ACS involvement can have on a child or a parent. It is also unclear how a nonrespondent custodial parent's rights would be respected by placing his or her parenting of a child under ACS supervision. Nor does interpreting Family Court Act § 1017 in a manner that permits ACS supervision of a nonrespondent custodial parent in the circumstances presented help a child to maintain family ties, since the child is necessarily already in the custody of that parent in such circumstances.

C. Family Court Act § 1027(d) Did Not Authorize the Challenged Directives

Further, the relevant provisions of Family Court Act § 1017 did not apply indirectly to the circumstances presented by way of the reference within Family Court Act § 1027(d) to Family Court Act § 1017(2)(a)(ii).

Pursuant to Family Court Act § 1027(a)(i), (ii), and (iii), a hearing to determine "whether the child's interests require protection" must be held, or may be held, depending upon the circumstances. "Upon such hearing, the court may, for good cause shown, release the child to his or her parent or other person legally responsible for his or her care, pending a final order of disposition, in accord with [Family Court Act § 1017(2)(a)(ii)]" (id. § 1027[d]).

Contrary to ACS's contention, even assuming the initial conference at issue constituted such a hearing, Family Court Act § 1027(d) does not provide an independent basis for a court to place a nonrespondent custodial parent under ACS supervision when the child has not been removed from that parent's home and the respondent parent resides elsewhere. Instead, by expressly referring to a subparagraph of Family Court Act § 1017, which, as previously stated, only applies to a nonrespondent parent in such circumstances "[a]fter [the] child is removed from the home" (Matter of Emmanuel B. [Lynette J.], 175 AD3d at 59), Family Court Act § 1027(d) similarly only applies in such circumstances. This is not only the plain meaning of the statutory text, but it is also consistent with the Legislature's recognition that the reference to Family Court Act § 1017 within Family Court Act § 1027(d) serves to establish the former statute as the "authority" for permitting a court to "release a child to his or her parent" during the pendency of an article 10 proceeding (Assembly Memo in Support, Bill Jacket, L 2015, ch 567 at 9).

D. This Court's Decision in Matter of Elizabeth C. (Omar C.) Does Not Support ACS's Position

This Court's determination in Matter of Elizabeth C. (Omar C.) (156 AD3d 193) does not warrant a different result. In that case, ACS accused the respondent father, who resided in a home with his children and the nonrespondent mother, of abusing and neglecting the children (see id. at 196-197). The father sought a hearing pursuant to Family Court Act § 1028 to contest a temporary order of protection issued on the same day that ACS filed the petitions, which required him to stay away from the family home (see Matter of Elizabeth C. [Omar C.], 156 AD3d at 196-197). Although Family Court Act § 1028 sets forth standards for conducting hearings to determine whether to "return[ ] [a] child" after his or her "removal . . . from the home" (id. § 1028[a], [b]), the father asserted "that his loss of the physical care and custody of the children incidental to his exclusion from the family home was the functional equivalent of a removal of the children, thereby entitling him to the heightened due process afforded by a section 1028 hearing" (Matter of Elizabeth C. [Omar C.], 156 AD3d at 197). The Family Court disagreed, concluding that such a hearing is "only appropriate where . . . children have been physically removed from their residence" (id. at 198). On appeal, this Court reversed (see id. at 205-210). While recognizing "that the statutes within part 2" of article 10 of the Family Court Act "generally employ the term `removal' in the context of physically removing the child from his or her home," this Court also noted that there was "no language in any of the statutes [that] expressly limit[ed] the due process protections they contain . . . only [to] situations involving . . . physical removal" (id. at 205-206). "Since the removal of a child from the family home and the exclusion of a parent from that same home require equal showings of imminent risk, and both result in similar infringements on the constitutionally protected parent-child relationship," this Court "conclud[ed] that both trigger the same due process protections" (id. at 207).

Contrary to ACS's contention, our holding in that case does not lead to the conclusion that, in this case, the child was "removed" for purposes of Family Court Act § 1017, thereby permitting the Family Court to impose the challenged directives upon the mother. In Matter of Elizabeth C. (Omar C.), this Court was focused on a different question than the one presented here: whether a custodial parent's exclusion from the family home triggers the hearing and due process requirements set forth in Family Court Act § 1028, even when the child is still residing at, and has not been removed from, the home. In this case, the question is instead whether Family Court Act § 1017—the relevant provisions of which require a noncustodial nonrespondent parent to, among other things, cooperate with a child protective agency upon assuming temporary custody after the child has been removed from the child's home—can be utilized to impose the type of directives at issue upon a custodial nonrespondent parent when an order of protection has been issued against a respondent parent who resides elsewhere, and when the child has not been removed from the nonrespondent parent's home. Notably, in Matter of Elizabeth C. (Omar C.), this Court did not state that the circumstances presented involved an actual "removal" of the child, as that term is utilized in Family Court Act § 1028. Instead, we reasoned that

"[t]he issuance of a full stay away order of protection excluding the father from the family home . . . [wa]s for all practical purposes akin to a physical removal of the children from his care and custody, . . . produc[ing] the same cessation in his contact with the children, and the same severance of his relationship with them, that an order removing the children from the family residence would bring about,"

thereby involving the "same constitutional considerations" (Matter of Elizabeth C. [Omar C.], 156 AD3d at 208-209).

IV. The Issue of the Due Process Protections Available to Respondent Parents Is Not Before Us

To be clear, our conclusion that Family Court Act §§ 1017 and 1027(d) did not authorize the Family Court to impose the challenged directives upon the mother under the circumstances presented should not be construed as indicating that certain hearing and due process provisions of Family Court Act article 10 were unavailable to the father. That issue is not before us on this appeal, and we do not decide it.

V. Conclusion

Accordingly, the Family Court improperly placed the mother under the supervision of ACS and the court, and directed her to cooperate with ACS in certain respects.

In light of our determination, we need not reach the remaining contentions of the parties and amici curiae.

Accordingly, the order is reversed insofar as appealed from, on the law.

CHAMBERS, J.P., BRATHWAITE NELSON and DOWLING, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements."

NY CHILD WELFARE - SEEKING VISITATION AFTER CHILD REMOVED THROUGH AN EXPERT

The assumption is that the father was asking for the court to pay for this expert assessment and further ask that it be dispositive.

MATTER OF ZV, 2025 NY Slip Op 50100 - NY Co. Family Court 2025:

YAEL WILKOFSKY, J.

"On or about May 31, 2024, the petitioner Administration for Children's Services ("ACS") filed a Family Court Act ("FCA") Article 10 neglect petition on behalf of the subject child Z.V. (the "subject child") against the respondent J.V. (the "respondent father"). The respondent father now moves for an Order directing that a visitation assessment be conducted by S.N., LMSW, to assess what, if any, parental visitation or conduct is recommended between the respondent father and the subject child. For the reasons set forth below, the respondent father's motion is denied.

The petition alleges that the respondent father fails to provide the subject child with proper supervision and guardianship based on allegations of excessive corporal punishment. Specifically, the allegations in the petition are as follows. On or about May 22, 2024, the respondent father burst into the bathroom of their apartment and told the subject child, who was 12 years old at the time, to "square up." The respondent father then took the subject child's laptop and antagonized her to take the laptop back from him. When the subject child attempted to retrieve her laptop from the respondent father, he placed her into a chokehold with his arm around her neck. The subject child then went into the kitchen and the respondent father followed her, at which point the respondent father again placed her in a chokehold and wrestled her to the living room floor. The subject child reported that during the incident, she felt strangled and like she was about to die as she was struggling to breathe and could not feel oxygen. After the respondent father released the subject child from the chokehold, the subject child ran out of the apartment, went to her former school to report the incident, and refused to return to the respondent father's home. On or about May 23, 2024, a forensic interview was conducted at the Manhattan Child Advocacy Center ("CAC") during which the subject child disclosed that the respondent father had wrestled her to the floor prior to the May 22, 2024 incident and that he does so whenever she behaves badly in school or is disrespectful. At the CAC interview, the subject child was observed to have a quarter-sized brown bruise in the center of her right cheek, two-inch long red scratch marks on her right forearm and a red mark on her left forearm, which, the subject child reported, were caused by the respondent father during the May 22, 2024 incident. Thereafter, the subject child was brought to the hospital, received medical attention and was subsequently discharged.

On May 31, 2024, at intake on the neglect petition, the Court removed the subject child from the respondent father, finding that it would be contrary to the subject child's welfare to return home to the respondent father and that removal was necessary to avoid imminent risk to the subject child's life or health. The Court temporarily directly placed the subject child with her adult half-sister. The Court issued a full stay away temporary order of protection against the respondent father on behalf of the subject child except for agency supervised visitation, at the subject child's discretion. At a June 10, 2024 court appearance, the respondent father made an application for resource supervised visitation and family therapy. The subject child's counsel opposed the request on the grounds that there had not yet been any agency-supervised visits based on the subject child's steadfast refusal to visit with the respondent father, that she had not yet spoken to the subject child about expanding to resource-supervised visits and that based on the allegations in the petition, the respondent father should be engaged in his own services prior to beginning family therapy with the subject child. The Court issued an Order permitting the respondent father to have resource-supervised phone contact with the subject child, at the subject child's discretion, and reiterated that all in-person visitation was to be agency-supervised and at the subject child's discretion. At a court appearance on July 25, 2024, the Court again addressed visitation between the respondent father and the subject child. The Child Protective Specialist ("CPS") assigned to the case informed the Court that the subject child was reluctant to have in-person visitation with the respondent father, even if the visits were supervised, and that although the subject child loves her father, she was not yet ready to have virtual visits with him either as she was still working through her feelings about the respondent father's behavior toward her. At a court appearance on November 18, 2024, when discussing visitation, counsel for the subject child informed the Court that in October 2024, the subject child had a telephone visit with the respondent father that did not go well, specifically, that during the visit, the respondent father was crying to the subject child asking the subject child to return home and blaming the subject child's sister for things that the subject child felt were the respondent father's fault. Counsel for the subject child further reported that the subject child did not wish to have any visits with the respondent father, that she wanted to remain in her sister's care and that the subject child would like to engage in therapy. Counsel for the subject child also asserted that perhaps if the respondent father was engaged in his own therapeutic services, the subject child would be less reluctant to visit with him. Additionally, counsel for the subject child requested that the respondent father provide the subject child with all her personal belongings which had remained in his home since the case was filed. The Court ordered that the respondent father give the subject child all her personal belongings and that the petitioner assist in ensuring that the subject child obtain all her belongings from the respondent father's home. The Court also ensured that the petitioner was making a referral for individual therapy for the subject child.

The respondent father's motion for an Order directing that a visitation assessment be conducted by S.N., LMSW, to assess what, if any, parental visitation or conduct is recommended between the respondent father and the subject child, is denied as the Court finds that it is not in the subject child's best interests to undergo such an assessment. Initially, the Court finds that the visitation assessment that the respondent father seeks is akin to a forensic evaluation conducted in custody cases and is not appropriate in a neglect case such as this one. Moreover, even if such a visitation assessment were appropriate, the Court finds that there is no need for such an assessment, which would be intrusive and burdensome to the subject child, as the Court is in the best position, and has all the information it needs, to make the assessment about what type of visitation between the respondent father and the subject child is appropriate in this case.

Indeed, throughout this case, based on all the information before it, the Court has assessed the type of visitation that is in the subject child's best interests and permitted the respondent father to have supervised in-person visitation with the subject child only at the subject child's discretion based on such assessment. Pursuant to FCA 1030(a), "[a] respondent shall have the right to reasonable and regularly scheduled visitation with a child in the temporary custody of a social services official unless limited by an order of the family court." "[T]he presumption that parental visitation is in the best interests of a child [may be] overcome by evidence showing that visitation with respondent would not be in [the child's] best interests" (In re Giovanni H.B., 172 AD3d 489 [1st Dept 2019]).

Initially, the Court determined that visitation with the respondent father only at the subject child's discretion is in the subject child's best interests because the subject child, who is a mature and articulate 13 year-old, has been adamant that she does not want visits with her father. Indeed, the record reflects that the subject child did try to visit with her father but that the visit did not go well because the subject child felt that the respondent father did not take accountability for his actions.

However, the subject child's refusal to visit with the respondent father is not the only factor the Court considered in making such a determination, although it is certainly an important one. In addition, the Court based its determination on the respondent father's failure to demonstrate a commitment to ensuring that the subject child's needs are met and to complying with court orders. The subject child has reiterated, to the Court and to the respondent father, that prior to continuing any visitation with the respondent father, she would like to engage in therapy to work through trauma she has experienced. However, petitioner has made numerous requests, over a period of approximately six months, that the respondent father provide his medical insurance information so that the subject child may be referred for therapeutic services. However, despite these requests, the respondent father failed to provide the petitioner with active insurance information and thus, the subject child has not yet been referred for mental health services. Indeed, in her affirmation attached to the petitioner's opposition to the motion, CPS affirms that although the respondent father has provided some insurance information, and only after numerous requests were made, the information provided was inaccurate. Moreover, CPS affirms that she notified the respondent father that he had provided inaccurate insurance information and requested additional information, but that as of January 10, 2025, the respondent father has not been responsive or forthcoming with the correct insurance information. The Court notes that at argument on the motion on January 28, 2025, the petitioner informed the Court that the respondent father had just recently provided new medical insurance information, but that petitioner had not yet had an opportunity to check whether the insurance was active and whether the information was accurate.

Additionally, the Court based its determination on the respondent father's refusal to provide the subject child with her personal belongings, despite the Court's order that he do so. The subject child has repeatedly requested that the respondent father give her all her personal belongings, which have remained in the respondent father's home since the petition was filed in May 2024. Indeed, the Court ordered such relief on the record and ordered that the petitioner assist in ensuring that the subject child obtains her personal belongings from the respondent father's home. However, the respondent father has refused to give the subject child her personal belongings, allegedly because she was not agreeing to visitation. Moreover, when the petitioner reached out to the respondent father to coordinate the transfer of the subject child's personal belongings, the respondent father refused or was unresponsive. The Court notes that at argument on the motion on January 28, 2025, the petitioner informed the Court that the respondent father finally provided the subject child with her personal belongings, one week prior to argument on the motion, despite the fact that the subject child has been requesting those items since at least November 2024, if not earlier.

The respondent father's reliance at argument on a recent First Department case, Matter of Michael B. v. Patricia S., 2024 NY Slip Op. 06005 (1st Dept 2024), is misplaced as that case is distinguishable. As an initial matter, Matter of Michael B. is a custody case and not a neglect case such as this one. Additionally, in that case, the First Department held that "[a] court may not delegate its authority to determine visitation to either a parent or a child" and that "[w]hile a child's views should be considered when determining issues of custody or visitation, they should not be determinative." Matter of Michael B. v. Patricia S., 2024 NY Slip Op. 06005 at 2. Here, the Court has not delegated its authority to determine visitation to the subject child and is also declining to delegate its authority to a third-party social worker, despite the respondent's request.As the Court has explained, the Court, and the Court alone, has assessed what type of visitation is in the subject child's best interests at this time and has repeatedly explained to the respondent father that his behavior during the pendency of the neglect case plays a role in the Court's visitation assessment. Indeed, the Court continuously assesses and re-assesses the type of visitation that is in the subject child's best interests based on new information provided to the Court, and the respondent father has failed to offer a sufficient basis for this Court to delegate such assessment to a third-party social worker.

Based on the foregoing, the respondent father's motion for an Order directing that a visitation assessment be conducted by S.N., LMSW, to assess what, if any, parental visitation or conduct is recommended between the respondent father and the subject child, is denied. This constitutes the decision and order of the Court."

NOW A DIVORCE CAN BE REALLY QUICK WITHOUT LAWYERS - IF BOTH SIDES AGREE

 

NEW YORK—Chief Administrative Judge Joseph A. Zayas and First Deputy Chief Administrative Judge Norman St. George today announced the statewide rollout of the court system’s Uncontested Joint Divorce program, which will ease the divorce process for many New Yorkers.  

In an uncontested joint divorce, both parties agree to end the marriage and on what will happen to their finances and property—and for those with children, on child custody 

(parenting time) and support. With the statewide launch of the Uncontested Joint Divorce program, New Yorkers across the State’s 62 counties who agree to an uncontested divorce on the grounds of “irretrievable breakdown in relationship for at least six months (no-fault)” can now petition the court together, instead of one spouse filing for a divorce against the other, reducing the amount of paperwork required by combining the many forms and pleadings and simplifying the divorce process overall.    

“The Uncontested Joint Divorce program, which allows for eligible spouses to file and sign their divorce papers jointly—without having to prove reasons for the divorce—will save divorcing couples time and money, expediting the finalization of the divorce and averting unnecessary strain as they navigate this life period of major transition,” said Chief Administrative Judge Zayas. “I am thankful to Statewide Coordinating Judge for Matrimonial Matters Hon. Jeffrey Sunshine for his integral role in developing, piloting, and expanding this crucial initiative, which will benefit countless New Yorkers across the State.”   

“The physical and emotional stress divorce places on couples and their families is well documented. This new program aims to provide welcome relief to New Yorkers initiating an uncontested, no-fault divorce. The Uncontested Joint Divorce program streamlines the paperwork required to obtain an uncontested divorce, will speed up the divorce process, further cooperation between the parties, and ease their path ahead as they and their families adjust to their new life circumstances,” said First Deputy Chief Administrative Judge St. George.  

“This type of divorce is significantly easier and quicker to obtain as the parties don’t have to prove the grounds for the divorce and, because they file their papers together, can jointly ask the Court to approve what they agree will happen after the divorce,” said Justice Sunshine.  

The Uncontested Joint Divorce packet, along with an informational guide, is available online at Uncontested Joint Divorce - Divorce Resources | NYCOURTS.GOV.

NY CHILD WELFARE - WHEN ONE ACT OF CORPORAL PUNISHMENT EQUALS NEGLECT

"MATTER OF ELINA M., 2024 NY Slip Op 6574 - NY: Appellate Div., 2nd Dept. 2024:

VOUTSINAS, J.

APPEAL by the father, in a proceeding pursuant to Family Court Act article 10, from an order of disposition of the Family Court, Kings County (Ilana Gruebel, J.), dated June 27, 2023, and entered in Kings County. The order of disposition, upon an order of fact-finding of the same court dated May 5, 2023, made after a fact-finding hearing, finding that the father neglected the subject child, and after a dispositional hearing, inter alia, released the subject child to the custody of the nonrespondent mother under the petitioner's supervision.

This appeal concerns a finding of neglect against a parent in a proceeding pursuant to Family Court Act article 10, based upon an alleged incident of excessive corporal punishment. This appeal does not present us with an opportunity to resolve a novel legal question. It does, however, provide us with an opportunity to provide some guidance with regard to when a single incident of excessive corporal punishment may be sufficient to support a finding of neglect. This appeal also presents us with the opportunity to emphasize that a finding of neglect must be based on evidence establishing the allegations set forth in the petition before the court. Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition.

I. Factual and Procedural Background

The appellant, Leonard M. (hereinafter the father), is the father of Elina M., born in 2012, who is the subject of this proceeding. The child's mother, Diana R., and the father separated when the child was less than one year old. The parents were engaged in a custody battle over the child for many years. Eventually, the parents had joint legal custody of the child, and each parent had equal parental access with the child that was split between the parent's homes.

In June 2021, the petitioner, Administration for Children's Services (hereinafter ACS), filed a petition pursuant to Family Court Act article 10 against the father, alleging that he had neglected the child by inflicting excessive corporal punishment on her. The petition alleged, more specifically, that on or about June 7, 2021, the father had grabbed the child's arm and squeezed it "really, really hard," leaving "three circular, dark green marks" on the child's shoulder, which "appeared to be the size of finger prints." The petition did not contain any allegations that the father had engaged in any other acts of aggression toward the child or regarding any misuse of alcohol.

A fact-finding hearing commenced in February 2022. ACS called two witnesses: an ACS caseworker and the child's mother. The ACS caseworker testified that while visiting the child on June 10, 2021, she noticed a bruise on her arm. When the ACS caseworker asked the child about the bruise, the child reported that while she was at the father's home a day or two days earlier, he became aggressive when she attempted to walk away from him while he was speaking, and he "pulled her rough, tightly, and forced her" to sit on a sofa. The child also had reported to the ACS caseworker that she believed that the father had been drinking alcohol because he was "walking funny." The child indicated that her next visit with the father would be the following day and that she felt safe continuing to visit with him. The ACS caseworker also testified that she had biweekly meetings with the child since April 2021, and that the child had not previously reported any excessive corporal punishment, but the child had previously reported that the father "often drank and . . . behaved oddly."

The mother testified that after the child returned from a visit with her father on June 10, 2021, she had observed a line of "four or five bruises" on the child's arm. The mother asked the child about the bruises, and the child stated that she was sitting in the living room watching a movie on her laptop and that the father was arguing with someone on the phone. The mother testified that the child told her that the father then threw the phone, took the laptop, threw the laptop on the floor, grabbed the child "hardly," screamed at her, "this is my apartment, this is my rules," and then took the child into another room.

On the July 19, 2022 hearing date, the mother was questioned by ACS counsel as to whether the subject incident was the first one that the child had reported in which the father had become angry and grabbed her. The father's counsel objected to the question as leading, and the Family Court asked if "it [is] in the petition." ACS counsel argued that petitions are pleaded generally. The court advised ACS counsel that the petition required allegations of specific facts and that if ACS wanted to conform the pleadings to the proof to add allegations other than the subject incident, the petition would have to be amended. ACS counsel stated that she intended to amend the petition, and the court ordered that conformed pleadings were to be submitted with notice to all counsel by July 21, 2022, at 5:00 p.m.

On the next hearing date, August 4, 2022, the Family Court stated that it had not received any conformed pleadings and asked ACS counsel whether she had served conformed pleadings by the deadline that the court had imposed. ACS counsel confirmed that she had not served or filed conformed pleadings, and the court then stated that its findings would be "based only on the original allegations [that are] contained in the petition."

On the August 4, 2022 hearing date, the mother testified that over the last three years, the child had reported to her that the father used alcohol during the child's visits and that he was drunk and/or drinking on the day of the incident. These allegations were not contained in the petition.

The father testified at the fact-finding hearing. He denied having any verbal argument with the child and denied that the subject incident ever happened. He stated that there was no need for him to discipline the child because she was a "good girl" and that they would "talk things through." The father further testified that on a couple of occasions, he had taken away the child's cell phone, but he had never used physical discipline with any of his children. The father also denied throwing the child's laptop. He submitted photographs of the laptop, which he took on the date of his testimony, and the photographs were admitted into evidence. The father testified that he did not drink any alcohol on June 7, 2021, or at any time during his parental access with the child from June 7, 2021 to June 9, 2021. He further testified that he did not typically keep alcohol in his home and that he did not drink any alcoholic beverages while caring for the child. He testified that he drank alcohol occasionally during social gatherings, such as parties or holidays.

On May 5, 2023, following the close of the fact-finding hearing, the Family Court issued an order of fact-finding, upon a decision of the same court, also dated May 5, 2023. The court found that the father neglected the child. In its decision, the court stated that:

"[T]he totality of the evidence establishes that the [father] neglected the child by causing her emotional harm and physical harm and putting her at risk of further physical harm by his misuse of alcohol [and] that although there are some discrepancies amongst the witnesses['] testimony, there is sufficient consistency concerning the father's aggressive approach towards the child, and his misuse of alcohol in her presence to support a finding of neglect.

. . .

"[T]he Court finds that the totality of the evidence establishes by a preponderance of the evidence that the [father] has caused the child emotional harm by his aggressive behaviors and outbursts towards her, and his misuse of alcohol, which makes her anxious and nervous. It is this in combination with the bruise, not the bruise itself, which establishes by a preponderance of the evidence that the [father] neglected the child" (emphasis added).

On June 23, 2023, the Family Court held a dispositional hearing and, on June 27, 2023, the court issued an order of disposition. The order of disposition, upon the order of fact-finding, inter alia, released the child to the custody of the nonrespondent mother under the petitioner's supervision. The father appeals.

II. Legal Analysis

Family Court Act § 1012(f)(i)(B) provides, in relevant part, that:

"`Neglected child'" means a child that is less than eighteen years of age . . . whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment . . . or by misusing alcoholic beverages to the extent that he [or she] loses self-control of his [or her] actions . . . ."

In a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving neglect by a preponderance of the evidence (see id. § 1046[b][i]; Matter of Nyla S. [Jason B.], 224 AD3d 691, 692; Matter of Myiasha K.D. [Marcus R.], 193 AD3d 850, 851-852). Only competent, material, and relevant evidence may be admitted into evidence at a fact-finding hearing (see Family Ct Act § 1046[b][iii]).

We recognize that the Family Courts are tasked with making difficult decisions every day in child protective proceedings pursuant to Family Court Act article 10, the purpose of which is "to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" (id. § 1011). Family Court Act article 10 "is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his [or her] needs are properly met" (id.). The Court of Appeals has noted, however, that "[t]he drafters of article 10 were deeply concerned that an imprecise definition of child neglect might result in unwarranted state intervention into private family life" (Nicholson v. Scoppetta, 3 NY3d 357, 368 [internal quotation marks omitted]). Under the circumstances presented here, we agree with the father that the Family Court erroneously found that ACS established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporate punishment.

As we have often stated, "[a]lthough parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child's welfare, the use of excessive corporal punishment constitutes neglect" (Matter of Alexander S. [Gabriel H.], 224 AD3d 907, 910 [internal quotation marks omitted]; see Matter of Tarahji N. [Bryan N.—Divequa C.], 197 AD3d 1317, 1320).

Parenting and discipline methods have changed significantly in recent years, and the use of any physical force against children has been frowned upon in society as an acceptable means of discipline. It is less acceptable today to see parents discipline their child physically through corporal punishment by means such as grabbing, spanking, or smacking in public or even at home. Until recently, corporal punishment was an acceptable use of discipline in some schools in New York. As of October 2023, the use of corporal punishment has been prohibited in all schools in New York (see Education Law §§ 305[60], as added by L 2023, c 551, § 2; id. § 1125[1], as added by L 2023, c 551, § 1). Under today's societal norms, parents are encouraged to speak to their children and use other methods of discipline without any form of aggression whatsoever. However, that is not to say that the methods of discipline through reasonable physical force as corporal punishment are not permitted. As such, we must be guided by our jurisprudence. There are some facts that so obviously support a finding of excessive physical force, but others require some reflection as to whether the act itself in the context of parenting was reasonable, or at least not excessive, so as to support a finding of neglect.

This Court has held that a single incident of excessive corporal punishment can constitute neglect (see Matter of Lea E.P. [Jason J.P.], 176 AD3d 715, 716; Matter of Elisa V. [Hung V.], 159 AD3d 827, 828). However, we find that the facts of the present case do not rise to a level supporting a finding of neglect under Family Court Act article 10. A review and comparison of prior holdings must serve as a guide to the courts in making the proper determination in each case before them. For example, in Matter of Eliora B. (Kennedy B.) (146 AD3d 772), the evidence at the fact-finding hearing established that the father became enraged and locked the mother out of the house when she left for the evening without cooking dinner for the subject children. The father blocked the door and instructed the children not to allow the mother back in the house. When the father discovered that one of the children had helped the mother reenter the house, he struck the child with a chair, bruising the arm that the child had raised to protect herself. When the child tried to stand, the father grabbed her by the throat and threw her down. The facts in that case supported the Family Court's conclusion that the father neglected the child by inflicting excessive corporal punishment (id. at 774).

In Matter of Elisa V. (Hung V.) (159 AD3d at 828-829), this Court affirmed the Family Court's determination that there was ample evidence, which included the father's own admissions to a police detective, for a finding of neglect based on the infliction of excessive corporal punishment. The father had beat his 15- and 17-year old daughters with a softball bat because the 15-year old daughter had refused to give him access to her cell phone and laptop after the daughters' mother had found flyers about sexually-transmitted disease testing in their bedroom (id. at 827-828).

We have often affirmed the Family Court's finding of neglect based on a single incident of excessive corporal punishment (see Matter of Nathaniel I.G. [Marilyn A.P.], 227 AD3d 806, 807 [the mother pushed the child and restricted his breathing, leaving scratches on the child's eyelid and shoulder, which were visible to the ACS caseworker]; Matter of Thaddeus R. [Gabrielle V.], 198 AD3d 901, 902 [the mother punched, hit, and scratched the child, leaving a red mark on the child's knee, which was visible to a caseworker three days after the incident]; Matter of Tarahji N. [Bryan N.—Divequa C.], 197 AD3d at 1320 [the mother struck the child with her hands multiple times and bit the child's finger, leaving marks and injuries observed by caseworkers and necessitating medical treatment]; Matter of Alivia F. [John F.], 194 AD3d 709, 712 [the father choked the child and pushed him into a dresser]; Matter of Nah-Ki B. [Nakia B.], 143 AD3d 703, 706 [the father choked the child, and the child's out-of-court statements that the father had choked her were corroborated, inter alia, by medical records]; Matter of Dalia G. [Frank B.], 128 AD3d 821, 823 [the father choked both children and slammed one of them to the floor]).

This Court has also held that a single incident of excessive corporal punishment was not sufficient to sustain a finding of neglect under Family Court Act article 10, under the particular circumstances of a given case, even where the use of physical force was inappropriate (see Matter of Myiasha K.D. [Marcus R.], 193 AD3d at 851; Matter of Anastasia L.-D. [Ronald D.], 113 AD3d 685, 686-687). Thus, even where the use of physical force could be deemed inappropriate under the circumstances, it nevertheless might not be sufficient to support a finding of neglect under Family Court Act article 10 (see Matter of Myiasha K.D. [Marcus R.], 193 AD3d at 851-852).

In Matter of Myiasha K.D. (Marcus R.) (193 AD3d at 851-852), ACS filed petitions alleging neglect by the paternal uncle as a person legally responsible for the care of the subject children, Myiasha K.D. and Amiya J.D., based on Myiasha's claim, inter alia, that after she made fun of another adult in the household, the paternal uncle struck her on the arm, leaving a bruise. At a fact-finding hearing, Myiasha's school guidance counselor testified that Myiasha told him that her paternal uncle had struck her on the arm, and the notes of the investigating ACS caseworker indicated that Myiasha provided her with a similar statement. The caseworker also observed some bruising on Myiasha's upper arm. The paternal uncle and the paternal grandmother denied that Myiasha was ever hit by the paternal uncle. No other marks or bruises were observed on Myiasha, and there was no evidence presented that the other child, Amiya, was ever struck by the paternal uncle. At the conclusion of the fact-finding hearing, the Family Court determined that the paternal uncle neglected Myiasha and derivatively neglected Amiya.

We reversed, holding that, under the circumstances presented, "ACS failed to establish by a preponderance of the evidence that the paternal uncle's action in inappropriately striking the child rose to the level of neglect, or that he intended to hurt Myiasha, or exhibited a pattern of excessive corporal punishment" (id. at 852). Similarly, in this case, the evidence presented failed to establish by a preponderance of the evidence that the father's inappropriate grabbing or holding of the child's arm or shoulder rose to the level of neglect, or that he intended to hurt the child or that he exhibited a pattern of excessive corporal punishment.

In Matter of Anastasia L.-D. (Ronald D.) (113 AD3d at 686-687), we affirmed the Family Court's dismissal, after a fact-finding hearing, of the petitions filed by ACS against the father alleging that he had neglected the subject children, Anastasia and Amethyst, through the infliction of excessive corporal punishment upon Anastasia and his own use of marijuana. The father allegedly hit 14-year-old Anastasia with a belt several times when she refused to give him her cell phone upon his request, causing bruises to her body. Also, the children had allegedly observed the father smoking marijuana on prior occasions. The father testified at a fact-finding hearing that he was attempting to discipline Anastasia for cutting school by taking away her cell phone, and that he hit her with the belt when she refused to give him the phone and charged at him. He testified that corporal punishment was not his normal mode of discipline. He also testified that he had smoked marijuana, but did not smoke it regularly, and that he never used or was under the influence of marijuana in the children's presence. After the fact-finding hearing, the Family Court dismissed the petitions (id. at 687). In affirming, we held that, under the circumstances presented, "the Family Court correctly found that ACS failed to establish by a preponderance of the evidence that the father neglected Anastasia by virtue of his infliction of excessive corporal punishment upon her. ACS failed to establish that the father intended to hurt Anastasia, or that his conduct demonstrated a pattern of excessive corporal punishment" (id.; see Matter of Tarahji N. [Bryan N.—Divequa C.], 197 AD3d at 1319-1320 [the Family Court's finding of neglect based on excessive corporal punishment was reversed where ACS had offered evidence of a single instance in which the mother hit the child's arm with a belt to discipline him after he was caught shoplifting]; Matter of Laequise P. [Brian C.], 119 AD3d 801, 802 [the Family Court's finding of neglect based on excessive corporal punishment was reversed, and we held that "[t]he father's open-handed spanking of the child as a form of discipline after he heard the child curse at an adult was a reasonable use of force, and, under circumstances presented . . ., did not constitute excessive corporal punishment"]). Under the circumstances presented here, we agree with the father that the Family Court erroneously found that ACS established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporate punishment. ACS failed to establish that the father's act of grabbing or holding the child's arm or shoulder rose to the level of neglect or that he intended to hurt the child or exhibited a pattern of excessive corporal punishment (see Matter of Myiasha K.D. [Marcus R.], 193 AD3d at 851-852; Matter of Anastasia L.-D. [Ronald D.], 113 AD3d at 687; Matter of Alexander J.S. [David S.], 72 AD3d 829, 830). In so holding, we are not deviating from our prior decisional law so as to suggest that a single incident of excessive corporal punishment cannot support a finding of neglect under Family Court Act article 10. We emphasize that each case is fact specific, and we hold that under the particular circumstances in the present case, the single incident of the father grabbing the child's arm or shoulder did not rise to the level of neglect under Family Court Act article 10.

Next, we find merit to the father's contention that the Family Court improperly based its finding of neglect, at least, in part, upon allegations that were not included in the petition, to wit, that the father had previously engaged in unspecified acts of aggression toward the child and that he misused alcohol in the child's presence. The petition does not contain any allegations of misuse of alcohol or of acts of aggression toward the child other than the incident that occurred on or about June 7, 2021. Specifically, it is alleged in the petition that on or about June 7, 2021, the father grabbed the child's arm and squeezed her "really, really hard," and that on or about June 10, 2021, the ACS caseworker observed "three circular, dark green marks" on the child's shoulder, which "appeared to be the size of fingerprints."

Family Court Act § 1051(b) provides that "[i]f the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations." We have held that it is improper for the Family Court to rely upon evidence relating to claims not alleged in the petition (see Matter of Amier H. [Shellyann C.H.], 106 AD3d 1086, 1087; Matter of Crystal S. [Elaine S.], 74 AD3d 823, 825). Here, it is clear from the court's decision that the court improperly relied on evidence relating to the father's alleged "misuse of alcohol" and alleged "aggressive behaviors and outbursts towards the child," which were not alleged in the petition (see Matter of Amier H. [Shellyann C.H.], 106 AD3d at 1087; Matter of Crystal S. [Elaine S.], 74 AD3d 823 at 825). Indeed, the court had afforded ACS an opportunity to conform the pleadings to the proof by a certain date, and after ACS failed to do so, the court made a ruling on the record that its findings would "be based only on the original allegations contained in the petition." Ultimately, the court failed to adhere to its own ruling.

Furthermore, the only evidence relating to the father's alleged misuse of alcohol were the child's statements to the mother and the ACS caseworker. A child's prior out-of-court statements relating to abuse or neglect are admissible in evidence, but if uncorroborated, such statements are not sufficient to support a finding of neglect (see Family Ct Act § 1046 [a][vi]; Matter of Kashai E. [Kashif R.E.], 218 AD3d 574, 575; Matter of Treyvone A. [Manuel R.], 188 AD3d 1182, 1183). Mere "repetition of an accusation by a child does not corroborate the child's prior account of it" (Matter of Nicole V., 71 NY2d 112, 124). Here, there was no corroborating evidence regarding the father's alleged misuse of alcohol. In fact, the ACS caseworker testified that during her visits to the father's home prior to the date of the incident, she had never observed any alcohol in the home or the father under the influence of alcohol, and that the child reported that she did not observe any alcohol in the home and that she did not actually see the father drinking alcohol.

Accordingly, the order of disposition dated June 27, 2023, is reversed, on the law and the facts, the order of fact-finding dated May 5, 2023, is vacated, the petition is denied, and the proceeding is dismissed.

CONNOLLY, J.P., MILLER and WARHIT, JJ., concur.

ORDERED that the order of disposition dated June 27, 2023, is reversed, on the law and the facts, without costs or disbursements, the order of fact-finding dated May 5, 2023, is vacated, the petition is denied, and the proceeding is dismissed."

NEW YORK DIVORCE - A PRENUP WAIVER OF SPOUSAL MAINTENANCE ALSO NEEDS THE FULL CALCULATION

JM v. GV, 2025 NY Slip Op 25004 - NY King Co. Supreme Court 2025:

"....

Full Presumptive Maintenance Calculations

Parties are entitled to opt-out of the post-divorce maintenance computational formula established in Domestic Relations Law § 236 provided that the parties comply with Domestic Relations Law § 236(B)(3). Domestic Relations Law § 236(B)(3) states that:

"An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment."

In the case at bar, under Section 6 of the prenuptial agreement, entitled "SPOUSAL MAINTENANCE", page 13, after recitation of the maintenance guidelines, the maintenance provision provides: "[defendant-husband] will neither seek nor require any maintenance, temporary, permanent or otherwise, or support for himself from [plaintiff] and, therefore, no provision for support or maintenance for [defendant-husband] is made herein." Further, the "Opting Out Provisions", on page 14, states: "[e]ach party acknowledges that he/she has been advised of the provisions of New York Domestic Relations Law §236, Part B, Section 5-a (the "Temporary Maintenance Presumption"), including as amended in June 2015 and signed into law in September 2015, as well as the provisions of New York Domestic Relations Law §236, Part B, Section 6 (Post-Divorce Maintenance Presumption"), which relate to the presumptive correct amount of temporary and post-divorce maintenance, and each party specifically waives and opts out of the application of the Temporary Maintenance Presumption, the Post-Divorce Maintenance Presumption as well as ongoing support or spousal maintenance of any kind."

Defendant contends that he waived his right to spousal support without knowledge of what he would potentially have been entitled to under the post-divorce maintenance formula contained in the Domestic Relations Law. In opposition, plaintiff's counsel makes the distinction between settlement in matrimonial cases and prenuptial agreements arguing that, for settlement in matrimonial cases "the parties are obligated to run the presumptive calculation and explain whether there's a conforming or a deviation from the guideline" [T. 7/16/2024, p.22, 17-19], however, plaintiff's counsel contends that there is no such affirmative requirement for prenuptial agreements. Plaintiff's counsel argues that prenuptial agreements should only be guided under the construction of contracts and are not bound by the maintenance guidelines statute. Defendant's counsel argues that "if a knowing waiver is needed in the context of a separation agreement or a stipulation of settlement by a Pro Se litigant, I am not sure why that wouldn't extend to a prenuptial agreement, which is going to be incorporated into a judgment that is enforced ultimately" [T. 7/16/2024, p.22, 17-19].

The Court rejects plaintiff-wife's contentions. Waiver of maintenance under the maintenance guidelines statute is predicated upon what can be termed "knowing waiver" of what the guidelines sum of maintenance would be but for the waiver. The statute expressly provides that the calculation must be fully articulated where there is a self-represented party (see Domestic Relations Law § 236(B)(6)(g)).

This requirement is intended to ensure that litigants who do not have the benefit of legal counsel have a full and fair opportunity to know what they may be entitled to under the maintenance guidelines statute in the form of an explicitly articulated sum. Only after such an articulated sum is detailed can a self-represented party or parties make a "knowing waiver" of that right. Without an expressly articulated sum resulting from the statutory calculation, any "waiver" by a self-represented litigant is, pursuant to the statute, not knowingly made.

To satisfy the knowing waiver aspect of the maintenance guidelines statute, both parties must provide their incomes and the full calculation, as of the time they enter into the prenuptial agreement, where either or both parties are self-represented because without the inclusion of incomes as of the date of the agreement and the full calculation under the guidelines statute formula, there could be no knowing waiver because the guidelines sum of maintenance would not be explicitly known and, as such, the parties could not expressly waive it (see generally Spiegel v. Spiegel, 206 AD3d 1178 [3 Dept.,2022]). Plaintiff argues, in effect, that it is harmless error that the calculation is not included because parties' incomes may change over time and there is no assurance that the calculation as of the date parties enter into a prenuptial agreement will remain relevant as of the date a party moves to enforce the prenuptial agreement; however, the statute requires only that waiver be knowing made at the time it is waived.

It would be antithetical to the protections of the maintenance guidelines statute to hold that the requirement for knowing waiver for self-represented litigants does not apply to prenuptial agreements.

Here, the prenuptial agreement recites the statutory formula; however, neither party's income as of the time they entered into the agreement is included. Without incomes provided, there was no way to include the full calculation of the maintenance guidelines sum and without that sum there could be no knowing waiver. Moreover, because the full presumptive maintenance calculations were not provided to the defendant, who was not represented by legal counsel, the entire provision related to spousal maintenance must be vacated. The Court notes in section 11, pages 18-19 of the parties' prenuptial agreement there is a severability clause, which would render the remainder of the agreement enforceable (see Spiegel v. Spiegel, 206 AD3d 1178, 1183 [3d Dept 2022]; see also Christian v. Christian, 42 NY2d 63, 73 [1977]); Matter of Wilson's Estate, 50 NY2d 59, 65 [1980]).

In light of the court's decision to vacate the spousal maintenance provision in the parties' prenuptial agreement, the Court need not address the defendant-husband's contention relating to whether the maintenance provision was unconscionable.

Compliance with General Obligations Law 5-311

It is well-established that there can be no waiver of maintenance where it would place either party at risk of becoming a public charge (see General Obligations Law 5-311). General Obligations Law 5-311 provides, as relevant hereto:

"... a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge."

Here, the provision purporting to relieve the parties of any right to provide maintenance to the other provided no representation as to either parties' income as of the date of the agreement and made no affirmative representation as to whether the alleged waiver of support would not render either party a public charge. As such, the Court cannot find that the waiver did not also violate GOL 5-311 (see generally Bloomfield v. Bloomfield, 97 NY2d 188 [2001]). In Bloomfield, the Court of Appeals found that even if a party had knowingly waived a right to receive support under existing law at the time, the validity of support waivers in marital agreements are still governed by General Obligations Law 5-311 prohibition against contracts that relieve either spouse — husband or wife — from a requirement to support where doing so may make the other spouse a public charge (id. at 194). The Court notes that the general statement in section 10 ("Financial Disclosure") on page 18 of the parties' agreement that "[e]ach party is fully informed of the income, assets, property and financial prospects of the other" is insufficient, alone, to satisfy the obligation of the Court to ensure compliance with GOL 5-311.

The Court finds that defendant has made a prima facie showing that he is entitled to summary judgment on the issue of the prenuptial agreement and maintenance. Plaintiff's opposition is insufficient to defeat summary judgment on the issue of maintenance. As such, the Court grants partial summary judgment to the defendant on the issue of vacating the prenuptial agreement "waiver" of maintenance: the determination of and calculation of maintenance is hereby referred to the trial court, subject to any pendente lite application prior thereto.

......"