New York Legal Update

Family Court Lacks Power To Issue No Pregnancy Condition In Neglect Proceeding

Do courts have the power to stop people from procreating? Along with issues like the death penalty and abortion perhaps no other issue raises such fundamental concerns about governmental power over personal liberty. However, this issue had not been addressed by the New York courts until last Friday when the Fourth Department was confronted by the question in Matter of Bobbijean P. v Stephanie P., 2007 NY Slip Op 07173.

The issue arose in a neglect proceeding under article 10 of the Family Court Act. A child Bobbijean was born in March 2003 to parents who were homeless crack cocaine addicts. The mother also had previously given birth to three other children who were in foster care. When Bobbijean tested positive for crack cocaine upon birth, the court temporarily removed her from her parents' care and placed her with a relative under the supervision of the Monroe County Department of Human Services (DHS). DHS then filed a neglect petition under article 10 of the Family Court Act. The mother initially appeared in the proceeding, but failed to appear at the hearing on the petition. Subsequently the Family Court issued an order finding that the parents had neglected Bobbijean, and the court adopted the dispositional plan for the child proposed by DHS. However, the Family Court added conditions to its order. Among those conditions was an order that the mother:

shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized.

And that the father:

shall not father any other child or children until and unless he has actually obtained custody and care of Bobbijean P. and every other child of his who is in foster care [The father did not seek relief from this provision].

The mother then moved to vacate this "no pregnancy" provision, which the Family Court denied.

However, on appeal the Fourth Department reversed and found that the Family Court had no authority to impose the "no pregnancy" condition. The Fourth Department stated that the Family Court only has power which is explicitly conferred on it by statute. And here, the only conditions that could be imposed on the mother were those authorized by Family Court Act § 1057, which provides that "[r]ules of court shall define permissible terms and conditions of [DHS's] supervision" over the mother. Those "rules of court" were set forth in 22 NYCRR 205.83 (a) and (b), and the Fourth Department found that none of the conditions authorized therein included prohibiting procreation. Nor did any of those conditions impliedly include such a prohibition.

The mother also raised issues concerning the constitutionality of the order, but the Court found that it did not need to decide the constitutional issues because it resolved the matter on State law grounds. It should further be noted that the Court also reached the merits of the case even though the matter had become moot.

It is unlikely that this important decision will be reviewed by the Court of Appeals as DHS took no position regarding the "no pregnancy" condition. While the Law Guardian argued in favor of the "no pregnancy" condition, it is not likely that the Law Guardian will pursue the matter in the Court of Appeals. In addition, as mentioned, the matter is now moot.

Grandma's Right To Remain Silent

It isn't often that elderly people get hauled into court and have to defend themselves against criminal charges, and thus, invoke their Fifth Amendment right against self-incrimination. But there is another situation in which grandma's liberty may be stake and where she may want to keep quite in court proceedings. And with the increasing age and wealth of the population such proceedings may play a larger role in families' lives. What type of court proceedings are these? They are proceedings under article 81 of the Mental Hygiene Law to have a guardian appointed for the personal needs or property management of a person who becomes incapacitated because of age (or other reasons).

Recently, the Fourth Department had to decide whether and to what extent the right against self-incrimination exists in such proceedings in Matter of Heckl, 2007 NY Slip Op 06089. In that case, the elderly person at issue was an 80-year-old mother, and the president and sole shareholder of Permclip Products Co., which was established by her late husband. Her children commenced a proceeding under article 81 claiming that she had been diagnosed with dementia, and that she was no longer able to care for her personal needs or able to manage the Permclip business or her personal financial affairs. The mother, who had become estranged from her children, claimed that her children were only seeking to benefit themselves by controlling her company and her fortune.

As part of the proceedings, the court appointed a "Court Evaluator" pursuant to Mental Hygiene Law § 81.09. The purpose of a Court Evaluator in a § 81.09 proceeding is, among other things, to meet with the person alleged to be incompetent and to make a report and recommendations to the court. The mother did not want to meet with the Court Evaluator and moved for an order vacating the appointment of the Court Evaluator. The mother, who was represented by her own counsel, argued that her liberty interest was at stake and thus she could not be compelled to speak with the Court Evaluator without violating her Fifth Amendment right against self-incrimination. She argued that her constitutional right to be protected from acting as a witness against herself would be violated if she met with the Court Evaluator because information obtained by a Court Evaluator can be admitted in evidence at the hearing in the proceedings (Mental Hygiene Law § 81.12[b]). The lower court rejected the mother's argument, ordered the Court Evaluator to meet immediately with the mother, and when the mother still refused, the court ordered her to meet with the Court Evaluator within 10 days or she would be held in contempt of court. The mother then appealed to the Fourth Department.

The Fourth Department agreed with the mother that because a guardian could be granted the authority to make decisions affecting her most basic rights, including whether she would reside in her own home or be placed in a facility, her constitutionally protected liberty interests were at stake in the proceeding. However, the Court also held that the right against self-incrimination was not implicated in the proceedings. The Court noted that the right against self-incrimination only applied to protect a person from "inculpatory" statements, i.e., statements that the person may reasonably apprehend could be used in a criminal prosecution leading to confinement for the purpose of punishment. The Court drew the distinction between confinement for the purposes of punishment and confinement for the purposes of treatment, and it is only where punishment is a potential that the right against self-incrimination attaches. Thus, since the proceedings under article 81 of the Mental Hygiene Law could only lead to confinement for care and treatment, statements made to a Court Evaluator were not subject to the constitutional protection against self-incrimination.

However, in a twist, the Fourth Department further held that the lower court had no authority to actually compel the mother to meet with the Court Evaluator. The Court stated that while there was a statutory duty on the part of the Court Evaluator to meet with the alleged incapacitated person, there was no concomitant statutory duty on the part of the alleged incapacitated person to meet with the Court Evaluator. This being the case, the mother also could not be found in contempt for failing to meet with the Court Evaluator. The Court recognized that the Court Evaluator would thus be hampered in the performance of his duties. But, the mother was within her rights to simply not avail herself of the statutory protection afforded by the Mental Hygiene Law of the Court Evaluator providing a full report.

Thus, we have a neat little right here for the elderly. Since they do not have to meet with the Court Evaluator, they in essence don't have to fully cooperate with their children's attempts to have them put away.

Adoptive Parent of Special Needs Child Remains Liable For Child Support Upon Voluntary Surrender Of Parental Rights

Adopting a special needs child is a tremendous act of love and compassion. Those who under take the challenge take great risks both emotional and financial as demonstrated by the Court of Appeals decision today in Matter of Greene County Dept. of Social Servs. v Ward, 2007 NY Slip Op 05131. An unmarried registered nurse was desirous of adopting a special needs child. She was presented with a child who had tested positive for cocaine and syphilis at birth. The child also exhibited various mental and emotional developmental problems. The nurse sought appropriate treatment and care for the child. Nevertheless, the child continued to have problems to such extent that he became violent. The nurse therefore voluntarily relinquished her parental rights. Even though she gave up her parental rights, the local Family Court found that she was still liable for child support. The Court of Appeals affirmed stating that an adoptive parent retains the obligation to provide financial support for a child until he or she is adopted or turns twenty-one (see Family Court Act § 413). The Court rejected the nurse's claim that she should be exempt from the child support obligation since she was a single parent of a child born out of wedlock. The Court of Appeals noted, however, that although the Social Services Law carved out a limited exception from this support requirement for children born out of wedlock to unwed mothers (see Social Services Law § 398 [6][f]; 18 NYCRR 422.4), this exception did not apply in the instant case. Since the child was not "begotten and born" to the nurse, she did not qualify as the "mother of a child born" out of lawful matrimony (see Family Court Act § 512).

Court Rejects "Default Diagnosis" Of Child Abuse

Everyone loves a medical mystery. Throw in the possibility of child abuse, and you have a perfect plot for an episode of "Law and Order - Special Victims Unit." These elements are all present in yesterday's decision from the Third Department in Matter of Julia Bb. v Diana Bb., 2007 NY Slip Op 04553 - a great read and a fascinating mystery. The case involved a proceeding pursuant to Social Services Law § 384-b to adjudicate a child to be a severely abused child. The facts are long and involved, but in essence they were as follows.

Within a month of the child's (Julia) birth, her mother brought her to her pediatrician with concerns about some marks that appeared on her back and chest. The marks were small purple and blue dots, which the pediatrician described as little hemorrhages under the skin. The pediatrician was unable to make a diagnosis and referred the child to a hematologist for blood work. A provisional diagnosis of herrorrhagic vasculitis was made, which is an inflammation of the blood vessels. The child also had low levels of vitamin C, needed for blood coagulation. These small bruise-like discolorations would come and go in the months that followed.

In another visit to the pediatrician, the parents expressed concern that they heard a "crackling" noise from the child's chest. X-rays were taken which initially revealed the possibility of a rib fracture. In another visit, the pediatrician observed a bruise on the child's cheek. The pediatrician requested another X-ray but was informed by the radiologist that this was unnecessary as the crepitus from the child's chest was probably the result of an overlapping of the 4th and 5th ribs. The child was referred for additional blood work. The hematologist discovered an additional bruise-like area behind her ear. He thus ordered a CT scan of the head. This revealed a superficial linear skull fracture. As a result the child was admitted to the hospital. At the hospital, a complete skeletal survey was performed which revealed fractures of the ribs, left forearm, and left tibia. At all times, the parents apparently remained very concerned about their child, and were cooperative with all doctors to perform all tests. While at the hospital, the child underwent genetic testing for a condition called Osteogenesis Imperfecta ,  commonly known as "brittle bone disease" (hereinafter OI). The cause of OI is a gene defect that affects how you make collagen, a protein that helps make bones strong. The geneticist who conducted the test ultimately concluded that the child did not have OI, but he noted that the child's fractures and skin discolorations were consistent with OI. In addition, the OI genetic test only had an 85% certainty rate, meaning that there was still a 15% chance that the child had the condition.

As a result of the hospitalization, Child Protective Services (CPS) were notified and an investigation ensued. For 3 months, the child was seen daily either by her pediatrician, a nurse, or a case worker. During this time, the bruise-like skin conditions continued along with incidents of swelling and sweating. Also during this time, the child was referred to an orthopedic surgeon who concluded that there was child abuse occurring. CPS thus sought emergency removal of the child from the parents. The Family Court denied the application finding that the parents were doing all that was reasonable, and it was unpersuaded that the unexplained injuries were the result of any inappropriate conditions in the home. The parents were directed to  continue to cooperate with CPS, which they did.

The mystery thereafter deepened. By this time, the paternal grandmother had moved in with the parents who indicated that the purple like skin marks would come and go, and there were incidents of puffiness of the joints. The grandmother also gave indications that the parents were thrilled to have the child, were very concerned, and were caring towards the child. During this time, the child was also diagnosed with an ear infection and given an antibiotic. Minutes after being given the antibiotic, the child had difficulty breathing and was observed with a pick secretion around the mouth (consistent with the antibiotic) and coughed up a mucus plug. She was rushed to the hospital where she was diagnosed with pulmonary edema. The hospital observed some bruising around the child's lips and gums. While acknowledging that this bruising could have been caused by the placement of an oxygen mask while in transport to the hospital, doctors at the hospital concluded that it was the result of a "smothering incident" and that the child was the victim of child abuse.

CPS again sought emergency removal of the child, which this time the Family Court granted. While the child was away from the parents in protective or foster care, the child continued to exhibit intermittent skin discolorations, as well as other unexplainable symptoms.

CPS then commenced a proceeding to terminate parental rights alleging abuse [the parents had two other children which CPS also sought to remove]. A lengthy fact-finding hearing ensued, after which the Family Court found that the parents severely abused the child. It thus terminated their parental rights. After the close of evidence the parents had moved to reopen the case to admit evidence from experts in OI, but the Family Court rejected this evidence.

In their review, the Third Department first noted that a finding of severe abuse must be established by "clear and convincing" evidence. It found that this standard had not been met. The Court first found that it was error not to admit the parents' expert testimony on OI. The Court then noted that the record was replete with references to the parents' efforts to obtain medical care for the child and attempts to unravel what they believed was a medical problem. The Court also noted that while the child displayed various injuries, none appeared to be life threatening or resulted in a protracted impairment of her health. The Court also took into consideration that there appeared to be no problems with the parents' other two children. In fact, the Court noted that these other children seem to thrive in their parents' care. Also, the child continued to exhibit the mysterious symptoms while in protective care.

The really interesting part of the case, however, was the Court's findings with respect to the evidence presented by CPS. The doctors who testified on behalf of CPS essentially testified that they came to the conclusion that the child had been abuse because it was in essence a default diagnosis. For instance, the doctors testified that they took the "constellation of signs and symptoms" and attempted to "come up with one consistent explanation for what happened." They testified that their job was to come up with a "unifying diagnosis to answer everything that's happened." Essentially these doctors came to the conclusion that nothing else fit all the events and the symptoms the child exhibited. The Court rejected this sort of conclusion by default analysis. The Court noted that there was the very real possibility that the child's strange symptoms of bruise-like discolorations and fractures, and the supposed "smothering incident" were entirely unrelated. The Court also noted that CPS's doctors were not experts in OI, and despite the fact that the genetic test for the OI condition was negative, there was still the possibility that the child had the condition because the OI test was not conclusive. The Court also weighed the rejected expect testimony on OI which was to the effect that there was a 10-15% chance that the child had a variant of the condition which could explain the negative test results. As mentioned, the Court also strongly took into consideration the parents' apparent unwavering efforts to cooperate in all parts of the investigation and to consistently seek appropriate medical care for the child, in addition to the fact that there appeared to be no problems with the parents' other children. Even when the Court reviewed the facts under the lower standard of preponderance of the evidence, it could not come to the conclusion that the child had been abused. Thus, the Third Department reversed, returned the child to her parents, and dismissed the proceeding.

So was there child abuse, or not? Did the child have OI, or some other strange undiagnosed condition? You decide. I encourage all to read the case in its entirety. It illustrates that neither the legal fact-finding process nor medical science have yet perfected their respective abilities to explain everything, and also illustrates that in some instances there may be a conflict between the two systems. Under such circumstances, I believe that it was wise for the Court to trust that the parents were indeed loving and caring parents and avoid separating the child from them.

Are the writers of "Law and Order - Special Victims Unit" out there?

Court Vacates Orders Terminating Parental Rights Because Of Inordinate Delay Of Proceedings

How long should a proceeding to terminate parental rights (Social Services Law § 384-b) take? Last week the Second Department was unsatisfied with a proceeding that took nearly six years (Matter of Dustin H. v Raymond H., 2007 NY Slip Op 04493). In that case it took over a year to begin a fact-finding hearing after the filing of the petition, it took four years to complete the fact-finding hearing, and it took another nine months for a disposition. After this length of this time, the Family Court issued orders of permanent neglect and placed the children at issue up for adoption. The Second Department noted that a timely procedure serves the best interests of the child as obviously the sooner a child can receive the benefits of a nurturing relationship the better. And in this case the Court found that the inordinate amount of time it took to complete the procedure contravened "fundamental fairness." What remedy did the Second Department impose? It reversed the fact-finding and dispositional orders, and remitted the matter to the Family Court for new fact-finding and dispositional hearings before a different judge, which the Court directed, "shall be reached with all convenient speed" [Note: there was also an evidentiary issue which swayed the Court]. Isn't it ironic that the Court's remedy would only result in more delay. Was the Court without any other authority to finally dispose of the matter? It is unclear from the Court's decision why it simply it did not use its factual review power to either agree with or disagree with the finding of neglect. This at a minimum would have obviated the need for an additional fact-finding hearing.

Newborn Left Unattended In Vehicle For 15 Minutes Found To Be Neglected

Is it ever permissible to leave a newborn infant unattended in a vehicle? Although I don't believe any court has said that it is never permissible to leave a newborn so unattended, this is clearly the direction that the courts are moving, and it would not be surprising if some appellate court came to such an conclusion in the near future. This can be demonstrated by the Second Department's decision last Tuesday in Matter of D.-C. (Anonymous), Samuel v Samuel C., 2007 NY Slip Op 04290. In that case, a father left a three-week old child unattended in an unheated vehicle for approximately 15 minutes on a November evening. The heat in the vehicle was turned off, and the infant was completely covered by a blanket. On these facts, the Second Department found that the child was neglected. In doing so, it reversed the Family Court, which had dismissed the child protective proceeding. A "neglected child" is defined as one "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [the] parent . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship" (Family Court Act § 1012[f][i][B]). The Second Department commented on the facts as follows:

These circumstances depict lack of attention to the special needs of a newborn and, standing alone, constitute neglect.

Thus, without any note as to the actual temperature inside or outside the vehicle, or whether the child was actually in any imminent danger of becoming impaired, there was a finding of neglect. Thus, one could conclude that the mere fact that an infant is left alone could be sufficient to support a finding of neglect. It should be noted that a finding of neglect need only be proved by a preponderance of the evidence (see Family Court Act § 1046[b][i]).

Court of Appeals Finds Punitive Damages Are Not Available In Wrongful Adoption/Fraud

To what extent can adoptive parents recover when the child they adopt turns out years later to have some type of mental illness? That was the issue decided by the Court of Appeals today in Ross v Louise Wise Servs., Inc., 2007 NY Slip Op 03793. The case involved an adoption that goes back to 1960. In that year, the plaintiffs applied to the defendant adoption agency and requested a "healthy infant from a healthy family," and that "it would be nice if the baby's birth family had an artistic background." In 1961, the plaintiffs were offered a boy, and in response to plaintiffs' questions about the health of the baby and his biological family, the agency told the plaintiffs that the child was "a demanding baby who likes attention." The Agency did not, however, disclose that the child's biological family suffered from emotional disturbance. Both the child's biological grandfather and father suffered from schizophrenia, and the biological mother had other emotional instability, and she eventually committed suicide in 1973. The adoption was finalized in 1962, and by the time the child was four years of age he began to exhibit troublesome behavior and the plaintiffs sought professional help. Eventually, when the child was 34, he was diagnosed as a paranoid schizophrenic.

When the child was 9 years old and continued to have increasing difficulties, the plaintiffs began asking the agency if there could have been any problems with the child's biological family. The agency never advised the plaintiffs of any emotional instability or schizophrenia. Eventually, the plaintiffs commenced an action in 1999 for wrongful adoption/fraud, negligence and breach of fiduciary duty, and intentional infliction of emotional distress [the later two causes of action were dismissed because of the statute of limitations and will not be discussed]. In their claim, the plaintiffs stated that they would not have adopted the child if they had been told about the schizophrenia in his biological family, and that psychiatrists might have treated him differently had disclosure been made earlier. In the wrongful adoption/fraud cause of action, the plaintiffs sought both compensatory and punitive damages.

The Court of Appeals found that the punitive damages claim should have been dismissed. At trial there was conflicting evidence that at the time of the adoption whether it was known that schizophrenia could be biologically inherited, and whether it was wise to advise adoptive parents of familial mental illness. For instance the agency introduced evidence that at the time it was believed that mental illness could be avoided if the child were placed in a loving environment, and that to disclose family history of mental illness would only stigmatize the child and influence the adoptive family adversely on how they would raise the child. Based on such evidence, the Court, while trouble by the agency's concealment, found that the agency's actions did not rise to the level of malicious or vindictive conduct, or conduct involving a high degree of moral turpitude, to justifying punitive damages. The claim for compensatory damages survived.