Preserving Issues for Appeal

INTRODUCTION

Family Court Act §1118 indicates that the Civil Practice Laws and Rules will apply to appeals of Family Court Orders, except as to certain provisions regarding fees and assignment of counsel.

Civil Practice Laws and Rules §§5501(b), (c) indicate that the Appellate Division is tasked with reviewing questions of law and fact, while the Court of Appeals can only review questions of law, except where the Appellate Division has expressly or impliedly found new facts.

In discussing the scope of review, Civil Practice Laws and Rules §5501(a) indicates that an appeal from a final judgment will bring up for review: (1) any non-final judgment or order which necessarily affects the final judgment; (2) any order denying a new trial or hearing which has not previously been reviewed; (3) any ruling to which the appellant objected or had not opportunity to object or which was a refusal or failure to act as requested by the appellant; and (4) any remark made by the judge to which the appellant objected.

Due to the fact that the appellate courts’ reviewing power is limited to those errors which have been preserved by a proper objection in the trial court, it is vital that Family Court practitioners ensure that they are protecting their client’s rights by objecting to errors.

What follows is a brief summary of some of the areas which are the most frequent grounds for appellate review of Family Court Orders.

I. HEARSAY

A. Hearsay is “a statement made out of court, that is, not made in the course of the trial in which it is offered, is hearsay if the statement is offered for the truth of the fact asserted in it” (Prince, Richardson on Evidence §8-101)

B. There are times when an out of court statement may not be hearsay. The Court of Appeals in Matter of Marino S. (100 N.Y.2d 361) found that in determining whether diligent efforts for reunification were required, pursuant to Social Services §384-b[3][g], that hearsay evidence was acceptable because it was not offered for its truth, but to explain the agency’s decision not to undertake reunification efforts.

C. “If the evidence is hearsay, and no exception to the rule is applicable, the evidence must be excluded upon appropriate objection to its admission” (Prince, Richardson on Evidence §8-101).

D. Once an objection has been made, “the proponent of hearsay evidence must establish the applicability of a hearsay-rule exception” (Prince, Richardson on Evidence on Evidence §8-107; see also Tyrrell v. Wal-Mart, 97 N.Y.2d 650).

E. If a hearsay rule exception has not been put forth in Family Court, it is not appropriate for the Appellate Court to consider whether the evidence is admissible pursuant to that exception because it deprives the opposing party the opportunity to counter that argument and the Family Court the opportunity to make a determination as to admissibility (Matter of Imani B., 27 A.D.3d 645 [2^nd Dept.]).

F. Family Court Act §1046(b)(iii) provides that in the Fact-Finding portion of an article ten proceeding, the evidence offered must be competent, material and relevant.

G. Family Court Act §1046(c), however, provides that in the dispositional portion of an Article ten proceeding that the evidence must be only material and relevant, thereby opening the door for hearsay statements. Family Court Act §1046 was amended effective October 2009, to clarify that the material and relevant standard would also apply to Permanency Hearings.

H. Family Court Act §1046(a)(vi), an exception to §1046(b)(iii), provides that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect”

I. Family Court Act §1046(a)(vi) indicates that the hearsay statements of a child can be corroborated by any other evidence tending to support the reliability of the previous statements.

J. Matter of Nicole V. (71 N.Y.2d 112). In examining the proper corroboration of a child’s statement regarding sexual abuse, the Court of Appeals determined that a child’s hearsay statement, to a foster parent, could not be corroborated by the repetition of that allegation in the same child’s affidavit. However, the Court indicated that the child’s statement could be properly corroborated by the child’s brothers’ hearsay statements. The Court of Appeals arrived at this determination by a “plain meaning reading” of Family Court Act §1046(a)(vi).

K. Matter of Christina F. (74 N.Y.2d 532). The Court of Appeals concluded that it is proper for a child’s unsworn but cross-examined testimony to be used to corroborate that child’s previous out of court statements, as to allegations of sexual abuse, where there is no other evidence of the sexual abuse in the Record. The Court also clarified that the necessity for corroboration is not because a child’s statement is inherently untrustworthy, but instead because there is a need to prove the reliability of hearsay evidence.

L. A child’s sworn statement may also be used to corroborate that child’s out of court statement regarding abuse or neglect (Matter of Brandi U. v. Jeffrey V., 47 A.D.3d 1103 [3^rd Dept.]; Matter of Alexander C., 30 A.D.3d 593 [2^nd Dept.]).

M. The provision allowing for hearsay statements regarding abuse or neglect to be admitted with corroboration has been extended to allow for admission of hearsay statements in an Article 6 custody matter where one of the allegations for a change of custody is abuse or neglect (Matter of Wentland v. Rousseau, 59 A.D.3d 821 [3^rd Dept.]; Matter of Cobane v. Cobane, 57 A.D.3d 1320 [3^rd Dept.]; Matter of Mildred S.G. v. Mark G., 62 A.D.3d 460 [1^st Dept.]).

N. In addition to the hearsay exception specific to Family Court, the common law hearsay exceptions are also applicable in Family Court. In Matter of Lydia K. (67 N.Y.2d 681), the Court of Appeals affirmed for the reasons stated in the Appellate Court’s Memorandum. The Appellate Court (112 A.D.2d 306 [2^nd Dept.]) found that the corroboration rules of Family Court Act §1046(a)(vi) were not applicable because the hearsay statement made by a child to a paramedic immediately after falling out of an eight story window indicating that her mother had pushed her, was a spontaneous declaration that was a common law exception to the hearsay rule.

O. In Matter of Thomas M.F. v. Lori A.A. , 63 A.D.3d 1667 [4^th Dept.], the Appellate Court held that the Family Court was correct in limiting the testimony the mother wished to offer of a neighbor because the neighbor’s testimony was going to be about the child repeating allegations that she had been sexually abused by the father’s girlfriend. The repetition by a child of allegations of abuse or neglect are not sufficient corroboration.

P. Matter of Michelle F.F. v. Edward J.F. (50 A.D.3d 348 [1^st Dept.]). The Appellate Court specifically indicated, citing Family Court Act §439[d], that the rules regarding hearsay apply at proceedings before Support Magistrates. In this Article 4 proceeding, the mother properly objected, as hearsay, to the father’s testimony about what his doctor said in regard to his ability to work.

Q. Matter of Kaiser v. Orange County DSS (34 A.D.3d 586 [2^nd Dept.]). The Appellate Court refused to review hearsay testimony in a guardianship proceeding because counsel did not object to the hearsay at any time during the proceeding.

R. Matter of Enrique S. v. Genell M.D. (56 A.D.3d 396 [1^st Dept.]). In this custody proceeding, the Court found that Family Court properly rejected that portion of the court appointed evaluator’s testimony which was based on hearsay.

S. Matter of Laelani B. v. Dawn C., 59 A.D.3d 880 [3^rd Dept.]. The mother’s counsel made a hearsay objection, in Family Court, to the receipt, by Family Court, of a psychologist’s report. However, the Appellate Court determined that based on the less stringent standard allowed for evidence at a Dispositional Hearing that there was no error in receiving the report.

T. Matter of Lucas B. (60 A.D.3d 1352 [4^th Dept.]) In a termination of parental rights proceeding, the Court found that the father failed to preserve for review his contention that the testimony of the two caseworkers was inadmissible hearsay.

U. Matter of Charles M.O. v. Heather S.O. (52 A.D.3d 1279 [4^th Dept.]) In an Article 6 custody proceeding, the Court found that the mother had failed to preserve for its review her contention that the Family Court had erred in permitting the Attorney for the Child to convey the child’s hearsay statements to the Family Court.

V. Matter of Hobb Y. (56 A.D.3d 998 [3^rd Dept.]) The Department of Social Services sought to terminate the visitation between the father and his children, who were in the custody of the Department pursuant to an Article 10 proceeding. On appeal, the father contended that the testimony of the caseworker that the son had said he was afraid of the father and that the father had instructed him to blow up the Department’s building and the admission into evidence of a letter written by the daughter was inadmissible hearsay. The Court indicated that this issue was not preserved by a timely objection and did not review it.

II. BUSINESS RECORDS & FORENSIC REPORTS

A. Family Court Act 1046(a)(iv) provides that “ any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if :

1. the judge finds that it was made in the regular course of the business of any hospital, or any other public or private agency, and

2. that it was in the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

3. A certification by the head of or by a responsible employee of the hospital or agency that the writing, record or photograph is the full and complete record of said condition, act, transaction, occurrence or event and that it was made in the regular course of the business of the hospital or agency and that it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification. A certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employee.

4. All other circumstances of the making of the memorandum, record or photograph, including lack of personal knowledge of the maker, may be proved to affect its weight, but they shall not affect its admissibility”

B. Matter of Leon RR (48 NY2d 117). The Court of Appeals found that the Family Court erred in an Article 10 proceeding by receiving a caseworker’s entire file into evidence. The Court of Appeals found that although some of the information in the file was provided by the caseworker, who was under a business duty, many of the entries consisted of statements and reports made by people who had no such business duty. The Court of Appeals did reach the merits of the matter, but also indicated that the error made by receipt of the entire file would have been enough to reverse the case standing alone. The Court of Appeals indicated that the better practice would have been to provide the respondents with an opportunity to review the file before it is offered into evidence---review the file and make specific objections to any entries not complying with the statute.

C. Social Services Law §422(5)(b) indicates that “unfounded reports” of child abuse or neglect are not allowed to be admitted into evidence except by the subject of the report when the subject is a respondent in a child protective proceeding.

D. Matter of Khan v. Dolly (6 A.D.3d 437 [2^nd Dept.]). In a custody proceeding, the Appellate Court found that the Family Court erred because reliance on professional reports without the consent of the parties is impermissible because such reports contain inadmissible hearsay. The Khan Court also relied on Wilson v. Wilson (226 A.D.2d 711 [2^nd Dept.]), wherein the Appellate Court indicated that reports prepared by a court appointed psychologist generally contain too many risks of error to permit their use without the parties’ consent.

E. Matter of Myles N. v. Denise NN. (49 A.D.3d 381 [1^st Dept.]). In a permanent neglect proceeding, the Court declined to review whether an adequate foundation had been laid for the admission of the agency’s progress notes because no objection as to whether the progress notes were business records had been made in Family Court prior to their receipt into evidence. The Appellate Court noted, however, that the “agency caseworker's testimony established that the highlighted portions of the notes were made in the ordinary course of business, and thus admissible as business records”.

F. Matter of Dustin H. v. Raymond H. (40 A.D.3d 995 [2^nd Dept.]). In a termination of parental rights proceeding, the Court found that Family Court erred during the Fact-Finding Hearing in permitting, under the business records exception, a caseworker to testify concerning entries in progress notes not of her own making in the absence of proof that those entries were contemporaneously made.

G. Matter of Penny K. v. Alesha T. (39 A.D.3d 1232 [4^th Dept.]). The Court found that Family Court erred in admitting into evidence the narrative portion of a child protective services investigation summary, as a business record exception to the hearsay rule, because the narrative portion was provided by an unknown source.

H. Matter of Stephanie S. (29 A.D.3d 334 [1^st Dept.]). The Court found that respondent’s argument, on appeal, that certain materials in the court file that the Family Court took judicial notice of do not qualify as business records was unpreserved because the objection in Family Court was that the materials were irrelevant because of age---be specific in your objections.

I. Matter of Murphy v. Woods (63 A.D.3d 1526 [4^th Dept.]). The Court found that Family Court had erred in allowing a licensed mental health professional to testify as to an opinion that was based in part on interviews with collateral sources who were not available for cross-examination. The Appellate Court noted in coming to its determination that “there are two exceptions to the general rule requiring that opinion evidence be based on facts in the record or on facts personally known to the witness: if the opinion is based upon out-of-court material "of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial"”. The mental health professional’s testimony did not fit into either of these exceptions---fully explore the basis of that opinion.

J. Matter of Amanda Lynn B. v. Marlene B. (60 A.D.3d 939 [2^nd Dept.]) At a temporary removal Hearing pursuant to Family Court Act §1027, the grandmother, from whom the Administration for Children’s Services was attempting to remove the child, objected to receipt by Family Court of a mental health evaluation. The Appellate Court found that Family Court properly received the evaluation because it was material and relevant, and because the Hearing was not a Fact-Finding Hearing, that the evidence did not have to be competent, and therefore hearsay was acceptable.

III. COMPETENCY/FITNESS TO PROCEED

A. There are two possibilities when addressing the issue of competency in Family Court. A case may be considered either strictly civil, in which case appointment of a guardian ad litem may be an option, or it may be quasi criminal, in which case Criminal Procedure Law Article 730 may be applicable.

B. Although proceedings in Family Court are generally characterized as civil, there are instances, such as a Violation of a Support Order, where the Court of Appeals has recognized that because these proceedings are punitive in nature, it may be appropriate to use some criminal law principals (People v. Wood, 95 N.Y.2d 509, 513)

C. In a quasi-criminal proceeding where the respondent may be sentenced to jail, a determination of whether respondent is an incapacitated person is governed pursuant to the procedure set forth in Criminal Procedure Law Article 730

D. Once a court makes a preliminary determination that an individual may be an incapacitated person, the statutory steps of Criminal Procedure Law Article 730 must be followed (People v. Marasa, 270 A.D.2d 902; People v. Rolfe, 177 A.D.2d 1013; People v. Lowe, 109 A.D.2d 300, 304, lv denied 67 N.Y.2d 653; People v. Weech, 116 A.D.2d 975, 976). At that point, an individual is entitled to a full and impartial determination of his mental capacity (Rolfe, supra; Armlin, supra).

E. Criminal Procedure Law §730.20(1) requires that once an Order for a mental examination is issued, that the Director of Community Mental Health designate two qualified psychiatric examiners to examine the defendant to determine whether he is an incapacitated person. After such an examination, the Director is required to determine whether there is agreement between the two psychiatric examiners as to mental state and that if there is not agreement, the Director is required to designate a third psychiatric examiner (Criminal Procedure Law §730.20(5)).

F. If the proceeding is not quasi-criminal, then it may be appropriate to determine if the procedures as set forth in Civil Practice Laws and Rules §§1201, 1202 for appointing a guardian ad litem to protect appellant’s interests should be followed. Civil Practice Laws and Rules §1201 indicates that a guardian ad litem shall appear for an adult who is “incapable of adequately prosecuting or defending his rights”.

G. Civil Practice Laws and Rules §1202 indicates that the Court may appoint a guardian ad litem at any stage of the proceeding, on its own initiative, or on the motion of a relative, friend or guardian, or any other party to the action.

H. Matter of Daniel A.D. (49 N.Y.2d 788). The Court of Appeals, in this termination of parental rights matter, found that while it was not mandated by statute that a guardian ad litem be appointed for the mother, that due to the fact that the allegations of why the mother could not care for her child were based on her competency, that it would be the better practice to appoint a guardian ad litem to represent the mother’s interests.

I. In Matter of Vance A. (105 Misc. 2d 254). The New York County Family Court found that in a child abuse proceeding pursuant to Family Court Act Article 10 it was not appropriate to apply the competency test requirements of Criminal Procedure Law Article 730, but instead that it was appropriate to determine the mother’s mental competence pursuant to Civil Practice Laws and Rules §§1201, 1202. The Family Court in Matter of Vance A. also determined that because Civil Practice Laws and Rules §1201 did not offer a definition to determine whether the party was incapable of defending their rights, it was appropriate to use the Criminal Procedure Law §730.10(1) definition, which is lacking “capacity to understand the proceedings against him or to assist in his own defense”.

IV. THIRD PARTY CUSTODY/ADOPTION

A. Matter of Theresa BB v. Ryan DD (64 A.D.3d 977 [3^rd Dept.]). The maternal grandmother, after the death of the mother, filed for custody of the children who had been in foster care because they were removed from the mother’s care after a finding of neglect. After the grandmother filed her Petition for Custody, the father judicially surrendered his parental rights on the condition that the children were adopted by their foster parents. The Appellate Court found that the grandmother had no special right to the children and that her sole remedy was to seek adoption.

B. Matter of Shirley E. v. David E. (63 A.D.3d 1231 [3^rd Dept.]). In this case both parents surrendered their parental rights. After the surrender, the grandmother filed a Petition seeking custody of the children. The Appellate Court found that after such a surrender has taken place, the only means for gaining custody of the children is adoption, and as the grandmother had only petitioned for custody and not adoption, her Petition was properly denied.

C. Matter of Johnson v. Streich-McConnell (66 A.D.3d 1526 [4^th Dept.]). The paternal aunt was seeking custody of the child and the mother opposed the aunt having custody. Prior to commencement of the Hearing, the parties had agreed that it would be bifurcated, with evidence regarding the issue of extraordinary circumstances being heard first and then, if the determination of that issue required it, a separate Hearing would be held regarding best interests. However, at the close of the extraordinary circumstances Hearing the Judicial Hearing Officer also made a determination that it would be in the child’s best interests to be in the custody of the aunt. The Appellate Court affirmed the finding of extraordinary circumstances but found that it was error for the Judicial Hearing Officer to make a determination of best interests without having a Hearing as to that issue. The Appellate Court remanded for a Hearing on the issue of best interests. ---this case highlights the importance of ensuring that if certain ground rules have been laid out to govern the determination of a matter, that you ensure that the Court adheres to those guidelines.

V. JUDICIAL HEARING OFFICER OR REFEREE

A. Judicial Hearing Officers and Referees are two different groups of individuals who can hear matters in Family Court. For a brief history of how these two authorities came to exist, refer to Schanback v. Schanback (130 A.D.2d 332 [2^nd Dept.]).

B. Judiciary Law §850 indicates that a Judicial Hearing Officer is “any person who has served as a judge or justice of a court of record of the unified court system or of a city court which is not a court of record, but who no longer holds judicial office” who has then been appointed to act as a Judicial Hearing Officer.

C. Title 22 NYCRR §122.6(b) indicates that the Administrative Judge may assign a Judicial Hearing Officer to preside over a part of court as permitted by law for a specified period. This is often done in counties where there is too large a volume of cases to be heard by Family Court Judges alone.

D. Title 22 NYCRR §122.6(c) indicates that instead of a Judicial Hearing Officer being assigned to preside over a part of court, they may be assigned to hear a specific matter. Such an assignment to a Judicial Hearing Officer shall be in writing, shall indicate the issues referred to such Judicial Hearing Officer and set forth whether the Judicial Hearing Officer is to hear and determine or hear and report.

E. In either case, whether the Judicial Hearing Officer is appointed to a part or to a specific matter, there must be a consent by all parties. Where there has been no such consent, the resulting Order is invalid.

F. Matter of Ryon J.G. v. Carlton D.S. (23 A.D.3d 1042 [4^th Dept.]). The Court found that in this paternity proceeding, because the Record did not contain any indication of a consent to the Judicial Hearing Officer or an Order granting him jurisdiction, that the Paternity Order had to be reversed, and the matter remitted to Family Court for further proceedings.

G. Matter of David SS v. Mia B.M (48 A.D.3d 1246 [4^th Dept.]). The Court agrees with the appellant father that because he refused to consent to the authority of the Judicial Hearing Officer to hear and determine the matter that the Judicial Hearing Officer lacked jurisdiction to dismiss the father’s Article 6 (custody) Petition and reversed and remanded the matter for a new proceeding.

H. Schnectady County DSS v. Angela DD (300 A.D.2d 760 [3^rd Dept.]). The Court indicated that a Judicial Hearing Officer does not have the authority to grant an ex parte application for a temporary order of removal in a child protective proceeding. The Court noted, however, that a Judicial Hearing Officer does have the authority, pursuant to Judiciary Law §212(2)(n) to grant ex parte Orders of Protection.

I. Where the Judicial Hearing Officer is only to hear and report, Title 22 NYCRR §202.44 indicates that after the Judicial Hearing Officer has filed his report, the plaintiff shall move, within 15 days of such filing, to confirm or deny the report. If the plaintiff does not so move, the defendant may move to confirm or deny within 30 days of the filing of the report. After that time period, if neither party has moved, the Family Court shall issue its determination based on the Judicial Hearing Officer’s report.

J. Matter of Wilder v. Wilder (55 A.D.3d 1341 [4^th Dept.]). The Court indicated that where the parties have only consented to having the Judicial Hearing Officer hear and refer and not hear and determine and the Judicial Hearing Officer had failed to comply with Title 22 NYCRR §202.44, that the matter must be remanded to Family Court for compliance with the procedure set forth therein.

K. Matter of Johnson v. Streich-McConnell (66 A.D.3d 1526 [4^th Dept.]). The mother herein made a valid consent to have the Judicial Hearing Officer determine her Petition, after having been advised by her counsel what that consent meant. When her counsel became unhappy with the manner in which the Judicial Hearing Officer was handling the proceeding, he unsuccessfully attempted to withdraw the consent. The Appellate Court found that the valid consent could not be withdrawn and it was valid even throughout the remand of the matter to Family Court.

L. Occasionally, appellate courts will find that a consent to a Judicial Hearing Officer is valid if there has been participation by the parties in a Family Court proceeding. In Matter of Heather J., (244 A.D.2d 762 [3^rd Dept.]) the Court found that it would have been preferable, in this Article 10 proceeding, for the Judicial Hearing Officer to obtain consent on the Record, after a recitation of the Order of Reference. However, the Court then indicated that the proceeding was not jurisdictionally defective because the respondent-father was an active participant in the proceeding

M. Instead of a Judicial Hearing Officer, a decision may be made by a referee. This is more likely to occur in a matrimonial action, but there is no express prohibition against such use in Family Court. Civil Practice Laws and Rules §4312(1) indicates that a referee must be an attorney admitted to practice in the state and in good standing. Civil Practice Laws and Rules §4301 indicates that, the term referee shall be deemed to include judicial hearing officer.

N. Civil Practice Laws and Rules §4311 indicates that “An order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only.” Thus, a stipulation may be either to allow the referee to hear and determine or to hear and refer, for a final determination to be made by a Family Court Judge.

O. Civil Practice Laws and Rules §4317 indicates that a reference for a referee to determine an issue may be used either when the parties consent or upon several different enumerated circumstances which are not usually present in Family Court. Civil Practice Laws and Rules §4317 then indicates that “upon the filing of the stipulation with the clerk, the clerk shall forthwith enter an order referring the issue for trial to the referee named therein. Where the stipulation does not name a referee, the court shall designate a referee.”

P. Civil Practice Laws and Rules §4320(b) provides that where a referee is only to hear and report he shall “file his report, setting forth findings of fact and conclusions of law, within thirty days after the cause or matter is finally submitted”.

Q. Matter of McDonald v. Laflair (___ A.D.3d __, 2009 NY Slip Op 8905 [3^rd Dept.]). The Appellate Court found that it did not matter that there was no Order of Reference, pursuant to Civil Practice Rules and Law §4317, because the Judicial Hearing Officer’s authority in this matter arose from Title 22 NYCRR §122.6, upon assignment by the local administrative judge. None of that information, however, was contained in the Record on Appeal or Family Court’s file.

VI. LINCOLN HEARINGS

A. Matter of Minner v. Minner (56 A.D.3d 1198 [4^th Dept.]). In a relocation determination, the Court indicated that the Attorney for the Children offered Family Court the opportunity to conduct an in camera review with the children but Family Court declined. The Appellate Court found that under the circumstances, the better practice would have been for the Family Court to hold such a review and reversed and remitted the matter to Family Court for a hearing and new determination.

B. Matter of Flood v. Flood (63 A.D.3d 1197 [3^rd Dept.]). In a modification of visitation proceeding, neither the Attorney for the Children, nor either parent’s counsel, requested a Lincoln Hearing. However, the Appellate Court found that because one of the children had changed her mind as to her position during the course of the proceeding and because the other child was resistant to any contact with her father, that a Lincoln Hearing would have been appropriate and, therefore, the Appellate Court remitted the matter for a Lincoln Hearing.

C. Matter of Benjamin v. Benjamin, (48 A.D.3d 912 [3^rd Dept.]). In a modification proceeding, the Court found that because the father did not object to Family Court conducting a Lincoln Hearing of his older son from another relationship, that the matter was not preserved for appellate review.

D. Matter of Tonjaleah H. (63 A.D.3d 1611 [4^th Dept.]). In this termination of parental rights proceeding, the father claimed on appeal that Family Court did not have an adequate opportunity to consider the wishes of the child because the court did not conduct an in camera interview with the child and that the Attorney for the Child did not meet with the child to ascertain her wishes. The Appellate Court indicated that this contention was not preserved. However, the Appellate Court also indicated that the position was without merit because such an interview with the child was not necessary due to the young age of the child and because the Attorney for the Child had indicated that staff from his office had met with the child and determined her position.

VII. ORDERS ENTERED ON CONSENT OR DEFAULT

A. Matter of June MM, (62 A.D.3d 1216 [3^rd Dept.]). In an Article 10 Neglect proceeding, because the finding of neglect was entered against the father on consent and he failed to make a timely motion to vacate, the Appellate Court could not review that finding.

B. Matter of Brian R, (48 A.D.3d 576 [2^nd Dept.]). The Court found that in reviewing an Article 10 matter that the Order of Disposition could not be reviewed because it was entered on consent. However, the Court also found that because the Order of Disposition brought up for review the Fact-Finding Order of Neglect, it was reviewable because the Fact-Finding Order was not entered on consent.

C. Matter of Scott v. Jenkins (62 A.D.3d 1053 [3^rd Dept.]). The Court found that Family Court didn’t err in finding the mother in default. The Court indicated that a party who fails to appear generally will not be found in default if the party’s attorney is able to explain the party’s absence. The Appellate Court found, however, that because the mother’s attorney in this matter indicated that he didn’t know why the mother failed to appear, a finding of default was proper ---do what is necessary to protect your client.

D. Matter of Albert G. Jr. v. Albert G., Sr., ( ____ A.D.3d____ 2009 NY Slip Op 8694, [1^st Dept.]). The Court found that because the father failed to appear at the Dispositional Hearing, the Dispositional Order was entered on default and was not appealable.

E. Matter of Amani Dominique H. ( ____ A.D.3d ____ 2009 NY Slip Op 8057, [1^st Dept.]). In this appeal of an Order denying a Motion to Vacate a Default, the Appellate Court found that there was no default with respect to the Fact-Finding Hearing, because respondent’s counsel appeared and participated in the Hearing. Therefore, the Motion to Vacate the Fact-Finding Order was improper and the appeal from the Family Court’s denial not properly before the Appellate Court.

F. Matter of Leavon Marvin B. (60 A.D.3d 941 [2^nd Dept.]). The Court found that because the father did not appear and his attorney did not participate in the Dispositional phase of the proceeding, the termination of parental rights could not be reviewed. However, because the father was present at the Fact-Finding Hearing, the determination of permanent neglect could be reviewed.

VIII. Miscellaneous Issues involved with child

protective proceedings

A. Matter of Elijah NN v. Lynett NN ( ___ A.D.3d ___, 2009 NY Slip Op 7537 [3^rd Dept.]). In an Article 10 Neglect proceeding, the respondent properly objected to the consideration, during Fact-Finding, of post-petition evidence. The Appellate Court found that consideration of such information was error, because post-petition evidence should not have been considered during the Fact-Finding phase, although it would have been properly considered at disposition.

B. Matter of Kayla Emily W. (___ A.D.3d___ 2009 NY Slip Op 8071, [1^st Dept.]). The Court found that respondent’s argument that the Petition did not adequately specify the agency’s diligent effort was unpreserved, as she did not raise such an argument below. The Appellate Court, nonetheless, reviewed her claim and indicated that the Petition was sufficient and any alleged deficiencies were cured by introduction into evidence of the agency’s case progress notes.

C. Matter of Jordan Amir B. (15 A.D.3d 477 [2^nd Dept]). The Appellate Court found that because there was no evidence provided at the Dispositional Hearing as to the children’s circumstances at the time of the Hearing or the children’s relationship with their mother, that there was nothing upon which Family Court could have based its determination as to what disposition was in the chidlrens’ best interests and that, therefore, the Fact-Finding and Dispositional Orders had to be reversed.

D. Matter of Shad S. v. Amy C.Y. (___ A.D.3d___ 2009, NY Slip Op 8283[4^th Dept.]) In a matter to determine whether a suspended judgment should be revoked and parental rights terminated, the Appellate Court noted that because Family Court had failed to consider whether it was error to not comply with the tolling provisions of Family Court Act §633(e), this contention would not be considered by the Appellate Court. Family Court Act §633(e) indicates that if “prior to the expiration of the period of the suspended judgment, a motion or order to show cause is filed that alleges a violation of the terms and conditions of the suspended judgment, or that seeks to extend the period of the suspended judgment for an additional period of up to one year, then the period of the suspended judgment is tolled until entry of the order that disposes of the motion or order to show cause”

E. Matter of Darren Hh v. Amber Hh ( ___ A.D.3d___, 2009 NY Slip Op [3^rd Dept.]). In this appeal of an Article 10 finding of neglect, the mother failed to object to the admission of post-petition evidence, and therefore, her challenge to that evidence was unpreserved and her claim was not reviewed by the Appellate Court.

F. Matter of Isabella Star G. ( ____ A.D.3d ___ [2009 NY Slip Op, 1^st Dept.]). In review of a proceeding that terminated the mother’s parental rights, the Appellate Court indicated that the mother’s argument that she was prejudiced due to the length of the proceeding was raised for the first time on appeal and, therefore, not preserved.

G. Matter of Rasyn W. (254 A.D.2d 827 [4^th Dept.]). In a review of an Order which terminated the mother’s parental rights, the Appellate Court indicated that Family Court erred by making the determination that it would be in the best interests to terminate the parental rights based on facts derived from the Fact-Finding Hearing without conducting a separate Dispositional Hearing.

H. Matter of Jessica L. v Lillie J. (57 A.D.3d 271 [1^st Dept.]). In this child protective proceeding, the Appellate Court found that the mother’s challenge to the Order of Disposition was unpreserved because she never objected to the Dispositional Order or otherwise contested the placement of the children.

I. Matter of Kahlil S. (60 A.D.3d 1450 [4^th Dept.]). Family Court determined that post-termination contact between the mother and the child was not in the child’s best interests. The Appellate Court affirmed Family Court’s Order because it found that Family Court properly made a determination based on the evidence. The Appellate Court indicated that the mother’s contention that visitation should have been permitted between her children who were in the custody of various people was not preserved for their review.

J. Matter of Brittany K. (59 A.D.3d 952 [4^th Dept.]). Family Court found the children to be permanently neglected and terminated the mother’s parental rights. The Appellate Court indicated that the mother failed to preserve, for their review, her contention that the Attorney for the Children should have informed Family Court of the children’s wishes at the Dispositional Hearing. However, the Appellate Court indicated that, in any case, the Attorney for the Children had previously informed Family Court of the children’s wishes at the Fact-Finding proceeding and the failure to do so again at the Dispositional Hearing did not prevent Family Court from considering the children’s best interests.

IX. PROCEEDING PRO SE

A. Matter of Casey N. (59 A.D.3d 625 [2^nd Dept.]). In reviewing this Article 10 proceeding, the Court indicated that before permitting a party to proceed pro se, Family Court must ascertain whether the party is knowingly, intelligently and voluntarily waiving their right to counsel. Family Court must conduct a “searching inquiry” to determine these factors. In this case, Family Court did not detail for the party the dangers and disadvantages of proceeding pro se and did not make any inquiry into the party’s competency to waive counsel. In addition, it was also error for Family Court to delegate the duty to make such an inquiry to the party’s counsel.

B. Matter of Forman v. Frost (___ A.D.3d ___, 2009 NY Slip Op 8615 [2^nd Dept.]). In a child support proceeding pursuant to Article 4, the Court found that the mother’s contention regarding her decision to proceed pro se was unpreserved for appellate review because it was not raised in her objections to the Support Magistrate’s Order.

C. Matter of Aikens v. Nell (63 A.D.3d 1662 [4^th Dept.], leave granted ___ N.Y.2d___, 2009 NY Slip Op 86975). In an Article 4 proceeding, the Appellate Court found that although the Support Magistrate failed to advise respondent, who was acting pro se, that he had a right to assigned counsel if he was financially unable to hire his own counsel, that this issue was not preserved for appellate review because it was not raised in written objections to the Support Magistrates Order.

X. CONSTITUTIONAL ISSUES AND EXECUTIVE LAW §71

A. Executive Law §71 indicates that:

1. “Whenever the constitutionality of a statute, or a rule or regulation adopted pursuant thereto is brought into question upon the trial, hearing or appeal of any action or proceeding, civil or criminal, in any court of record of original or appellate jurisdiction,

2. and proof of the notice of such constitutional challenge, as required by paragraph one of subdivision (b) of section one thousand twelve of the civil practice law and rules, has not been filed,

3. the court or justice before whom such action or proceeding is pending, shall make an order, directing the party desiring to raise such question, to serve notice thereof on the attorney-general, and providing that the attorney-general be permitted to appear at any such trial or hearing in support of the constitutionality of such statute, or rule or regulation adopted pursuant thereto.”

4. The Attorney General thereafter has the right to appear in any such proceeding.

B. Tompkins County Support Collection Unit ex rel Chamberlin v. Chamberlin (99 N.Y.2d 328). The appellant argued that in modifying a Support Order in accordance with the CSSA guidelines rather than simply making the cost of living adjustment, the Family Court was in violation of the contract clause of the Federal Constitution. The Attorney General appeared pursuant to his authority under Executive Law §71. The Court of Appeals rejected the appellant’s argument.

C. Matter of Clara C. v. William L. (96 N.Y.2d 244). Ten years prior to the commencement of this action, the mother and father entered into an agreement pursuant to Family Court Act §516 [which has recently been repealed] whereby the mother agreed to accept, among other things, $275 a month in child support and to drop her paternity action against the father. In the proceeding, the father invoked Family Court Act §516 to foreclose the mother’s attempt to seek further support. Family Court dismissed the mother’s Support Petition, finding it was barred by Family Court Act §516. The majority of the Court of Appeals, indicated that the agreement between the mother and father did not comply with the requirements of Family Court Act §516 and so did not have to reach the mother’s equal protection argument in order to reverse. The concurring opinion, however, did consider the constitutional argument, finding that there was no state interest at stake and noted that while the Attorney General was put on notice pursuant to Executive Law §71, that he declined to appear in defense of the law’s constitutionality.

D. Matter of Paul X (57 A.D.2d 216 [3^rd Dept.]). In this child protective proceeding, the mother was granted an adjournment in contemplation of dismissal, pursuant to Family Court Act §1039. Thereafter, the Department of Social Services moved to revoke the adjournment in contemplation of dismissal. Family Court found that the mother had failed to comply with the adjournment in contemplation of dismissal and, pursuant to Family Court Act §1039(e), made a finding of neglect and proceeded to disposition. The Appellate Court indicated that the mother made an argument on appeal that Family Court Act §1039 was unconstitutional and had raised the issue in Family Court, but that, despite admonitions by Family Court to follow Executive Law §71, had not followed those requirements. Therefore, the Appellate Court was unable to review her statutory constitutional argument. The Appellate Court did, however, review the mother’s claim that she had been denied due process and reversed the Family Court’s Order on this basis.

XI. IN THE INTERESTS OF JUSTICE REVIEW

A. If issues are not preserved in Family Court, the standard for the Appellate Court to review the issue is completely discretionary. A review of cases indicates that there is no prevailing standard for when an Appellate Court will choose to review an unpreserved standard. An Appellate Court may be more likely to review an unpreserved issue where the party was unrepresented in Family Court or where a fundamental right is at stake, however, even these generalizations aren’t applicable to all cases.

B. Matter of Dana-Sitzer v. Sitzer( 48 A.D.3d 354 [1^st Dept.]). In this custody determination, the Appellate Court found that the father did not preserve arguments relating to failure to appoint an Attorney for the Child or a Forensic Mental Health Expert, or the failure to have an in camera Hearing with the children, and there was no finding of a public policy exception to the preservation requirement that would allow review of these matters.

C. Matter of Jeffrey T. v. Julie B. (35 A.D.3d 1222 [4^th Dept.]). The father conceded that his contention concerning the child’s last name was not preserved for review, and the Appellate Court declined to review it in the interests of justice

D. Matter of David VV. v. Dennis VV. (25 A.D.3d 882 [3^rd Dept.]). DSS moved for a Temporary Order of Protection against the father based on accusations of excessive corporal punishment. At the subsequent Family Court Act §1029 Hearing, the father represented himself and admitted most of the allegations. There was then a Fact-Finding and Dispositional Hearing. On appeal, the father argued that it was error for Family Court to receive the transcript of the Family Court Act §1029 Hearing into evidence at the Fact-Finding Proceeding. The Appellate Court found that the transcript of the Fact-Finding Hearing indicated that the father did not understand the ramifications of the court receiving the transcript, and that they would review the issue in the interests of justice, although it had not been preserved. The Appellate Court noted that it had broad discretion to reach the issue in the interests of justice.

E. Matter of Karen BB (216 A.D.2d 754 [3^rd Dept.]). In a matter seeking to adjudicate children as abused and neglected, the Appellate Court found that the parents’ contention that they were denied the right to confront witnesses at an in camera Hearing was not preserved by an appropriate objection in Family Court, and the Appellate Court declined to review the issue in the interests of justice.

XII. SOCIAL WORKER/RAPE CRISES COUNSELOR PRIVILEGE

A. Civil Practice Laws and Rules §4508(a) indicates that a “a person licensed as a licensed master social worker or a licensed clinical social worker under the provisions of Article 154 of the Education Law shall not be required to disclose a communication by a client or his or her advice given thereon, in the course of his or her professional employment” Civil Practice Laws and Rules §4508 was recently modified to require that the social worker be “licensed” rather than “certified”.

B. The exceptions offered by Civil Practice Laws and Rules §§4508 are: (1) information can be disclosed upon authorization by the client; (2) communication by a client which reveals the contemplation of a crime or harmful act; (3) where the client is a child under the age of sixteen and the information indicates that the client has been the victim or subject of a crime and (4) where the client waives the privilege by bringing charges against such social worker

C. Civil Practice Laws and Rules §4510 (b) indicates that a rape crisis counselor, as that term is defined by Civil Practice Laws and Rules §4510(a)(2), “shall not be required to disclose a communication made by his or her client to him or her, or advice given thereon, in the course of his or her services”. This privilege extends to “ any records made in the course of the services given to the client or recoding of any communications made by or to a client”

D. The exceptions offered by Civil Practice Laws and Rules §§4510(b) are : (1) information can be disclosed upon authorization by the client; (2) communications by a client which reveals the intent to commit a crime or harmful act and (3) where the client waives the privilege by instituting charges against he rape crises counselor or the rape crises program

E. Family Court Act §1046(a)(vii) indicates that in an Article 10 proceeding, neither the social worker-client privilege, nor the rape crises counselor-client privilege shall be a ground for excluding evidence which otherwise would be admissible.

F. Matter of Humberstone v. Wheaton (21 A.D.3d 1416 [4^th Dept.]). In an Article 6 custody proceeding, the Appellate Court found that the Family Court did not err in allowing testimony by a child’s school guidance counselor, without the child’s authorization pursuant to Civil Practice Laws and Rules §4508, because the school guidance counselor was not a certified social worker and, therefore, the privilege did not attach.

G. Shane MM v. Family & Child Services (280 A.D.2d 699 [3^rd Dept.]). In this custody proceeding, wherein the father was attempting to gain custody from the foster parents, the Appellate Court found that it was error for Family Court to find that the social worker’s notes were privileged pursuant to Civil Practice Laws and Rules §4508 because the social worker was not certified. The Appellate Court found, however, that this was harmless error and affirmed Family Court’s Order.

XIII. EQUITABLE DEFENSES IN PATERNITY PROCEEDINGS

A. Family Court Act §532(a) indicates that in a paternity proceeding a DNA test shall not be ordered “upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman”. This same rule is also indicated in Family Court Act §418(a), pertaining to DNA testing for the purpose of child support. Therefore, it is vital that if any of these defenses may apply to a respondent in a paternity proceeding that they be raised at a first appearance, before any DNA testing has been done.

B. Matter of Tracy C.O. v. Douglas A.F. (66 A.D.3d 1390 [4^th Dept.]). In this paternity proceeding, the respondent’s counsel indicated to Family Court that, pursuant to Family Court Act §532(a), genetic testing should not be ordered because the mother was married to someone else at the time of conception and that she, thereafter, for a period of eight years, lived with a third man, whom the child viewed as a father figure. Family Court nonetheless ordered genetic testing based on its belief that the child had a right to know who his father was. The Appellate Court reversed Family Court’s Order because Family Court was required to appoint an Attorney for the Child and to conduct a Hearing to determine the child’s best interests concerning equitable estoppel and the presumption of legitimacy.

C. Matter of Saragh Ann K. v. Armando Charles C. (___ A.D.3d ___, 2009 NY Slip Op 8469 [1^st Dept.]). The mother established respondent’s paternity through genetic testing. The respondent did not rebut the presumption of paternity, but instead moved for a further Hearing on equitable estoppel. The Appellate Court indicated that the respondent’s moving papers did not reference the child’s best interests, which is the appropriate standard, but instead focused on how a finding of paternity would disrupt the father’s life. The Appellate Court found that because the child believed respondent to be his father and because the respondent raised no issue of best interests, that the Family Court’s Order would not be disturbed.

D. Matter of Marilene S. v. David H. (63 A.D.3d 949 [2^nd Dept.]). In this paternity proceeding, the mother was married to Charles S. when the child was conceived and born, but sought to have David H. established as the father. David H. opposed this on the basis of equitable estoppel. The Support Magistrate dismissed the mother’s Petition because Charles S. was the presumptive father. The mother made written objections to the Support Magistrate’s dismissal, both because David H. raising the issue of equitable estoppel meant that the Support Magistrate no longer had jurisdiction, and the matter should have been transferred to a Family Court judge and because of the dismissal, as a matter of law, based on the presumption of paternity. Family Court affirmed the Support Magistrate’s Order. The Appellate Court reversed, both because the mother was correct that the Support Magistrate did not have jurisdiction over proceedings involving equitable estoppel, and because the presumption of legitimacy is only a presumption and is not conclusive.

XIV. NOTICE OF APPEAL

A. Family Court Act §1113 indicates that an appeal must be taken no later than 30 days after the service by a party or the law guardian upon the appellant of any Order from which the appeal is taken; 30 days from receipt of the Order by the appellant in court or 35 days from the mailing of the Order to the appellant by the clerk of the Court, whichever is earliest.

B. Family Court Act §1113 also indicates that all Orders are required to contain statutorily mandated language indicating the time that an appellant has to appeal. If an Order is made by the court, the time to take an appeal shall not commence unless the Order contains the required language and there is an official notation in the court record as to the date and the manner of service of such Order.

XV. PERMISSION TO APPEAL

A. Family Court Act §1112 indicates that an appeal may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division, from any other order under this act.

B. An exception to the rule that only final orders may be appealed is also indicated in Family Court Act §1112 “An appeal from an intermediate or final order or decision in a case involving abuse or neglect may be taken as of right to the appellate division of the supreme court”

C. Orders that are not considered orders of disposition, and for which, therefore, permission must be sought to obtain leave to appeal, include temporary orders of custody, orders of paternity or filiation, temporary support orders and temporary orders of protection.

THE AUTHOR GRATEFULLY ACKNOWLEDGES THE ASSISTANCE OF HIS ASSOCIATE,

ELIZABETH deV. MOELLER, ESQ., IN PREPARATION OF THESE MATERIALS.

Committee on Children and the Law
Friday, January 29, 2010

PRESERVING ISSUES FOR APPEAL: PROCEDURAL AND EVIDENTIARY CONSIDERATIONS

(ADDENDUM-1/25/10)

JOHN A. CIRANDO, ESQ.

D.J. & J.A. CIRANDO, ESQS.

ATTORNEYS AND COUNSELORS AT LAW

101 SOUTH SALINA STREET, SUITE 1010

SYRACUSE, NEW YORK 13202

(315) 474-1285

TABLE OF CONTENTS

I. BUSINESS RECORDS & FORENSIC REPORTS........................................................... 1

IV. THIRD PARTY CUSTODY/ADOPTION.......................................................................... 2

VIII. Miscellaneous Issues involved with child PROTECTIVE

PROCEEDINGS................................................................................................................. 3

IX. PROCEEDING PRO SE..................................................................................................... 4

XV. PERMISSION TO APPEAL................................................................................................ 5