January 16, 2019
Appellate Division Revises Statement of Client
Rights
A Joint Order of the Departments of the New York State Supreme Court, Appellate Division adopted a Revised Form of Statement of Client’s Rights and Responsibilities pursuant to 22 NYCRR 1400.2, effective February 15, 2019.
Appellate Division, Second Department
Default Vacated in custody case although
mother did not have a reasonable excuse for her default. Default orders not
favored in custody and child support cases.
In
Abel A v Imanda M, --- N.Y.S.3d ----, 2018 WL 6797927, 2018 N.Y. Slip Op. 09000
(1st Dept., 2018) the Appellate Division reiterated the rule that
while the decision to grant or deny a motion to vacate a default rests in the
sound discretion of the court, default orders are disfavored in cases involving
the custody or support of children, and thus the rules with respect to vacating
default judgments are not to be applied as rigorously. It found that although
the mother did not demonstrate a reasonable excuse for her default in this
change of custody case, she had a meritorious defense. The children had resided
primarily with her, and insufficient evidence was submitted to make an informed
change of circumstances determination that served the best interests of the
children. Also, the court failed to sua sponte appoint an attorney for the children,
which, based upon the insufficient evidence it had to make an informed best
interests determination, would have been advisable. It held that under these
circumstances, Family Court improvidently exercised its discretion in denying
the mother’s request to vacate the final custody order made upon her default
and vacated her default.
Where individual incarcerated for violating
order of protection issued under Family Court Act article 8, the proceeding is
one involving criminal contempt.
In Desiena v Desiena, --- N.Y.S.3d
----, 2018 WL 6778900, 2018 N.Y. Slip Op. 08931 (2d Dept., 2018) the Family
Court determined, beyond a reasonable doubt, that the husband willfully
violated a temporary order of protection, and directed that he be incarcerated
for a period of six months for each of those violations, the periods of
incarceration to run concurrently. The Appellate Division affirmed. It
explained that where, as here, an individual is incarcerated as a punitive
remedy for violating an order of protection issued under Family Court Act
article 8, the proceeding is one involving criminal contempt. In order to
sustain a finding of criminal contempt, there must be proof beyond a reasonable
doubt that the contemnor willfully failed to obey an order of the court. The
Appellate Division pointed out that as the proceeding was criminal and not
civil in nature the court was not entitled to draw a negative inference from
the invocation of his Fifth Amendment privilege against self-incrimination,
(see Baxter v. Palmigiano, 425 U.S. 308, 318).
Equitable estoppel is not used to deny the
existence of a relationship, but rather to protect one
In Matter of
Ramos v. Broderek, 166 A.D.3d 783, 88 N.Y.S.3d 204, 2018 N.Y. Slip Op. 07733
(2d Dept., 2018) the mother filed a petition alleging that Broderek was the
father of the child. At the conclusion of the fact-finding hearing, the Family
Court concluded that the doctrine of equitable estoppel did not apply and
adjudicated Broderek as the child’s biological father. The Appellate Division
affirmed. It agreed with the Family Court’s determination that the doctrine of
equitable estoppel did not apply. Equitable estoppel may successfully be
invoked in paternity proceedings, in the interest of fairness, to prevent the
enforcement of rights which would ultimately work fraud or injustice upon the
person against whom enforcement is sought. Equitable estoppel, however, does
not involve the equities between or among the adults. Instead, the paramount
concern in applying equitable estoppel in paternity cases is the best interests
of the subject child. Equitable estoppel is not used to deny the existence of a
relationship, but rather to protect one (Matter of Juanita A. v. Kenneth Mark
N., 15 N.Y.3d at 5, 904 N.Y.S.2d 293, 930 N.E.2d 214).
Appellate Divison, Third Department
Uncle had standing to commence Termination
of Parental Rights proceeding pursuant to Social Services Law § 384–b
In Matter of Jahvani Z., ---
N.Y.S.3d ----, 2019 WL 80635, 2019 N.Y. Slip Op. 00008 (3d Dept., 2019) the
Appellate Division held as a threshold matter, that the uncle had standing to
commence the proceeding. Social Services Law § 384–b provides that custody of a
child may, by court order, be committed to an authorized agency, a foster
parent or “a relative with care and custody of the child” (Social Services Law
§ 384–b[3][a]) That statute specifically provides that proceedings to terminate
parental rights ‘may be originated by an authorized agency or by a foster
parent ... or by a relative with care and custody of the child’ ” (Matter of
Cadence SS. [Amy RR.–Joshua SS.], 103 A.D.3d at 128, 956 N.Y.S.2d 639). The
uncle was “a relative with care and custody of the child” who was authorized to
commence this permanent neglect proceeding pursuant to Social Services Law §
384–b(3)(b). Respondent’s reliance upon other statutory provisions governing
Family Court’s authority or obligation to issue orders under certain
circumstances (see Social Services Law § 384–b[3][a] ) and regarding who may
initiate a petition to terminate parental rights when the authorized agency
fails to do so as court ordered in certain circumstances (see Social Services
Law § 384–b[3][l][i], [iv]; Family Ct. Act §§ 1055[d]; 1089[d][2] [viii] [E] )
was misplaced. Those provisions do not override the express authority granted
by Social Services Law § 384–b(3)(b) to a relative with care and custody of the
child” to initiate parental termination proceedings. In a footnote the court pointed
out that Family Ct. Act § 1032 did not apply here, as the proceeding was
commenced pursuant to Social Services Law § 384–b.
January 1, 2019
Recent Legislation
Laws
of 2018, Ch 516 - CPLR 4511(c) - Judicial notice of Google Maps.
Laws of 2018,
Ch 516 amended CPLR 4511, effective
December 28, 2018, to insert subdivision (c) which provides for a rebuttable presumption of
judicial notice of web mapping or global imaging websites such as Google
Maps. Every court must take judicial notice of
an image, map, location, distance, calculation, or other information taken from
a web mapping service, a global satellite imaging site, or an internet mapping
tool, when requested by a party to the action, subject to a rebuttable
presumption that such image, map, location, distance, calculation, or other
information fairly and accurately depicts the evidence presented. The presumption may be rebutted by credible
and reliable evidence that the image, map, location, distance, calculation, or
other information taken from a web mapping service, a global satellite imaging
site, or an internet mapping tool does not fairly and accurately portray that
which it is being offered to prove.
A party intending to offer the
image or information at a trial or hearing must, at least 30 days before the
trial or hearing, give notice of such intent, providing a copy or specifying
the internet address at which the image or information may be inspected. No
later than 10 days before the trial or hearing, a party upon whom the notice is
served may object to the request for judicial notice of such image or
information, stating the grounds for the objection. Unless objection is made
pursuant to this provision, or is made at trial based upon evidence which could
not have been discovered by the exercise of due diligence prior to the time for
objection otherwise required by this provision, the court must take judicial
notice of the image or information. Former subdivisions (c) and (d) were
renumbered as (d) and (e).
Laws
of 2018, Ch 415 - Domestic
Relations Law §11.
Domestic
Relations Law §11 was amended effective December 21, 2018, by
adding a new subdivision 2-a which adds to the list of those persons who may
solemnize a marriage, a member of the
New York state legislature, provided that he or she does not charge or receive
a fee.
Laws of 2018, Chapter 362
Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter:
Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter:
Amended Family Court
Act § 735 to require designated
lead PINS diversion agencies to
review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings
containing such allegations regardless of the potential petitioner
Amended Family Court Act § 736
to require that the school district or local educational agency be notified of
the court proceeding and be allowed to participate and provide assistance where the court determines
that such participation and /or assistance
would aid in the resolution of the petition.
Amended Family Court Act § 742
of the Family Court Act to permit the court
to refer PINS proceedings to diversion agencies at any stage
in the proceeding. To minimize
the unnecessary filing of educational neglect petitions against parents, the amendment
adds provisions that, in effect, establish a rebuttable
presumption in favor of diversion.
Amended the definition of educational neglect in Family Court Act § 1012(f)
to require proof of parental
failure to provide educational services to a child "notwithstanding the efforts of the school district or local
educational agency and child
protective agency to ameliorate such alleged failure prior to the filing of the petition," thus making failure to
resolve educational problems
through diversion a prerequisite to filing.
Amended Family Court Act § 1031
to require that these efforts be
recited in the petition, along with "the grounds for concluding that the
education-related allegations
could not be resolved absent the filing of a petition."
Amended Family Court Act § 1035
to authorize Family Court to notify the school district or local educational
agency and to allow their participation where the court determines that such
participation and /or assistance would aid in the resolution of the petition.
(See 2018 NY Legis Memo 362)
Laws of 2018, Ch 60 - Family Court Act 842-a
Laws of 2018, Ch 60, § 5, amended
Section 842–a of the family court act
to
add rifles and shotguns to the list of weapons whose licenses may be suspended
or revoked upon the issuance of a
temporary order of protection or order of protection and to provide that upon
the termination of any suspension order issued pursuant to this section, any
court of record exercising criminal jurisdiction may order the return of a
firearm, rifle or shotgun pursuant to paragraph b of subdivision five of
section 530.14 of the criminal procedure law.
Laws of 2018, Ch 55 - Family Court Act §821(1)(a)
Family Court Act §821 (1)(a) was amended to
add coercion
in the third degree to the
list of crimes that constitute a family offense.
Recent Decisions
Appellate Division, First Department
Hearing necessary before court modifies
prior order of custody or visitation, even where court is familiar with parties
and child, particularly where facts in dispute. Hearing must include
opportunity for both sides, and children’s attorney to present respective cases
In
Matter of Anthony B v Judy M, --- N.Y.S.3d ----, 2018 WL 6537034, 2018 N.Y.
Slip Op. 08568 (1s Dept., 2018) the Appellate Division held that the court
erred when, without holding an evidentiary hearing, it made a final order
transferring physical and legal custody to the father and suspending all
contact between the mother and the child for a year. It observed that it has
consistently held that “an evidentiary hearing is necessary before a court
modifies a prior order of custody or visitation,” even where the court is
familiar with the parties and child, and particularly where there are facts in
dispute. While it has stated that a hearing on modification of a custody
arrangement in the child’s best interests “may be ‘as abbreviated, in the
court’s broad discretion, as the particular allegations and known circumstances
warrant ...,’ it must include an opportunity for both sides, and the children’s
attorney when there is one, to present their respective cases, and the ‘factual
underpinnings of any temporary order [must be] made clear on the record’ ”
(Shoshanah B. v. Lela G., 140 A.D.3d 603, 607, 35 N.Y.S.3d 18 [1st Dept. 2016]
). The court’s reliance on statements made by the ACS caseworker during a court
conference was inappropriate, since the mother’s attorney had requested, but
was denied, a full hearing at which counsel could have cross-examined the
caseworker. There was no indication in the record that the court possessed
sufficient information to determine how to modify the custody and visitation
arrangement in order to best serve the child’s interests. Moreover, there was
no basis in the record for the court’s determination that it was in the best
interests of the parties’ young child that he have no contact with his mother
for a year. The matter was remanded to the court for further proceedings.
The
Appellate Division held that the court also erred in prohibiting the mother
from filing any future petitions for custody or visitation without leave of
court for a period of one year when neither the father nor the child’s attorney
sought this relief. In an appropriate case, a court may enjoin a party from
continuing to litigate certain claims without prior approval of the court “to
prevent use of the judicial system as a vehicle for harassment, ill will and
spite” (Matter of Sud v. Sud, 227 A.D.2d 319, 319, 642 N.Y.S.2d 893 [1st Dept.
1996]; see also Komolov v. Segal, 96 A.D.3d 513, 514, 947 N.Y.S.2d 14 [1st
Dept. 2012]). However, there was no evidence that the mother had a history of
relitigating the same claim or otherwise engaging in frivolous litigation
against the father that might have made such a ruling appropriate.
Appellate Division, Second Department
When allegations of fact in petition to
change custody are controverted, court must, as a general rule, hold a full
hearing. Denial of custody as a
punishment for misconduct is improper.
In Williams v Jenkins, --- N.Y.S.3d
----, 2018 WL 6519193, 2018 N.Y. Slip Op. 08491 (2d Dept., 2018) an order dated
May 21, 2014, awarded the parties joint legal custody of the child with
physical custody to the mother and parental access to the father. The order
provided that neither parent could relocate with the child outside the five
boroughs of New York City or the State of New Jersey without the written consent
of the other parent and the establishment of a mutually agreeable
post-relocation parental access schedule. In the absence of such an agreement,
the order required court approval to relocate with the child. In June 2015, the
mother petitioned to relocate with the child to Illinois. Prior to a scheduled
court appearance on March 3, 2016, the father purportedly appeared at the
courthouse and, inter alia, screamed and used inappropriate language at
courthouse staff. Without conducting a hearing, the Supreme Court immediately
entered an order awarding the mother sole legal and physical custody of the
child, and permission to relocate with the child to Illinois. The order further
provided that, “due to the father’s disruptive and obstreperous behavior in the
court room, having cursed at court personnel ... all [of the father’s parental
access is] suspended.” The order provided that the father could petition for
parental access upon completion of a drug treatment program. The Appellate
Division reversed. It pointed out that when the allegations of fact in a
petition to change custody are controverted, the court must, as a general rule,
hold a full hearing. The record did not demonstrate that there were no
unresolved factual issues so as to render a hearing unnecessary (see S.L. v.
J.R., 27 N.Y.3d at 563, 36 N.Y.S.3d 411, 56 N.E.3d 193]). It appeared that the
order “serve[d] more as a punishment to the father for his misconduct than as
an appropriate custody award in the child’s best interests (Matter of John A.
v. Bridget M., 16 A.D.3d 324, 337, 791 N.Y.S.2d 421). The matter was remitted
to the Supreme Court for a hearing on the mother’s petition, and a new
determination before a different Justice.
Failure to apprise respondent in PINS
proceeding of right to remain silent constitutes reversible error, even if the
respondent consents to disposition
In Matter of Tyler D, 166 A.D.3d 612, 87 N.Y.S.3d 338,
2018 N.Y. Slip Op. 07427 (2d Dept., 2018) the Appellate Division reversed an order
in a PINS proceeding which determined that the appellant violated the terms of
an ACD order, restored the matter to the calendar, vacated the ACD order,
adjudged the appellant to be a person in need of supervision, and directed that
he be placed in the custody of the Commissioner of Social Services for a period
of up to 12 months. It observed that Family Court Act § 741(a) provides, in
relevant part: “[a]t the initial appearance of a respondent in a proceeding and
at the commencement of any hearing under this article, the respondent and his
or her parent or other person legally responsible for his or her care shall be
advised of the respondent’s right to remain silent”. The failure to apprise a
respondent of the right to remain silent constitutes reversible error, even if
the respondent consents to the disposition in the presence of counsel or fails
to seek to withdraw his or her admissions based on the failure. Here, the
Family Court never apprised the appellant of his right to remain silent, not at
the initial appearance on the PINS petition, nor prior to accepting his
admission to the allegations in the petition and entering the ACD order, nor at
the fact-finding and dispositional hearing addressing the alleged violation of
the ACD order. The court’s failure to advise the appellant of his right to
remain silent cannot be considered harmless error (see Matter of Mark J., 259
A.D.2d 40, 42–43, 696 N.Y.S.2d 583), as the court never advised the appellant
of his right to remain silent at any time during the course of this proceeding
or the original PINS proceeding. Thus, the order had to be reversed (see Matter
of Daniel XX., 149 A.D.3d 1231, 1232).
Family Court properly precluded father from
presenting testimony from psychiatrist where no indication that testimony would
have been relevant to issue of changed circumstance
In Matter of Gansburg v Behrman, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2018 WL 6626800, 2018 N.Y. Slip Op. 08650 (2d Dept., 2018) the
Appellate Division pointed out that A[e]vidence
is relevant if it has >any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence= @ People v.
Davis, 43 N.Y.2d 17, 27). It found that Family Court providently exercised its
discretion in precluding the father from presenting testimony from a
psychiatrist, as there was no indication that the psychiatrist=s testimony
would have been relevant to the issue of changed circumstances, the threshold
issue in the custody case. The father, through his attorney, indicated only
that the psychiatrist was a trauma expert and that the psychiatrist had
determined that the child had been Atraumatized.@ However,
the father had not alleged in any of his pleadings that the child had been
traumatized or that this alleged trauma constituted a change in circumstances
necessitating a modification of custody or parental access. Nor did the father
or his attorney specify the nature of the alleged trauma or how it related to
the mother=s custody of the child or the father=s parental
access with the child. The father=s vague
allegations of trauma, with no apparent connection to the existing custody and
parental access arrangements, did not demonstrate that the psychiatrist=s testimony
would be relevant to the issue of whether there was Aa subsequent
change of circumstances such that modification is required to ensure the best
interests of the child@ (Matter of Bacchus v. McGregor, 147
A.D.3d at 1050, 48 N.Y.S.3d 683).
Determination that absence of sexual
intimacy conclusively established there was no “intimate relationship” within
meaning of Family Court Act § 812(1)(e), was improper
In
the Matter of Raigosa v Zafirakopoulos, --- N.Y.S.3d ----, 2018 WL 6519212,
2018 N.Y. Slip Op. 08485 (2d Dept., 2018) the petitioner commenced a proceeding
seeking, inter alia, an order of protection against the respondent. She alleged
that the petitioner and the respondent “have an intimate relationship,” as they
were living together as roommates. Family Court, without a hearing, found that
the parties did not have an intimate relationship because their relationship
was not sexual in nature (Family Court Act § 812(1)(e) and granted the
respondent’s application to dismiss for lack of subject matter jurisdiction. The Appellate Division held that Family
Court’s determination that the absence of sexual intimacy between the parties
by itself conclusively established that there was no “intimate relationship”
within the meaning of Family Court Act § 812(1)(e) was improper (see Matter of
Arita v. Goodman, 132 A.D.3d 1108, 1110, 18 N.Y.S.3d 473). It reversed and
remitted the matter to the Family Court, for a hearing to determine whether the
Family Court had subject matter jurisdiction under Family Court Act § 812(1)(e),
and for a new determination.
Appellate Divison, Third Department
Third Department Joins First and Second
Departments in holding Family Ct. Act '
1046(a)(vi) can not be applied in a proceeding pursuant to Family Ct Act
article 8.
In Matter of Kristie GG v Sean GG, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2018 WL 6683333, 2018 N.Y. Slip Op. 08718 (3d Dept., 2018) the
mother filed a petition alleging that the father had committed a family offense
against the children. At a fact‑finding hearing, the attorney for the children
moved to preclude the parties from calling the children as witnesses. Family
Court granted the motion on consent. Over the father=s hearsay
objections, two detectives testified as to the children=s out‑of‑court
statements about the incident. The mother also testified as to the children=s
statements. Video recordings of the police interviews with the children were
admitted into evidence, over the father=s
objections. The father testified regarding the incident, asserting that he took
the middle child by the arm to lead him outside the hotel but, after the child
was disrespectful and hit the father=s arm, the
father grabbed the child by both arms to get him under control. Based on the
testimony, video recordings and a photograph of the child=s arm,
Family Court found that the father committed the family offense of harassment
in the second degree and issued a two‑year order of protection. The Appellate
Division held that Family Court erred in admitting hearsay testimony of the
children in the fact‑finding portion of this Family Ct Act article 8
proceeding. In proceedings commenced pursuant to Family Ct Act article 8, A[o]nly
competent, material and relevant evidence may be admitted in a fact‑finding
hearing@ (Family Ct. Act ' 834).
Competent evidence excludes hearsay testimony unless an exception exists. The
court here relied on Family Ct. Act '
1046(a)(vi), which provides, in part, that Aprevious
statements made by the child relating to any allegations of abuse or neglect
shall be admissible in evidence, but if uncorroborated, such statements shall
not be sufficient to make a fact‑finding of abuse or neglect.@ By its
terms, that statute applies only in hearings under Family Ct Act articles 10
and 10BA, which
generally address child protective proceedings (see Family Ct. Act ' 1046[a] ).
Nevertheless, courts have applied this statutory hearsay exception to custody
and visitation proceedings, commenced pursuant to Family Ct Act article 6, and
have deemed admissible in such proceedings a child=s out‑of‑court
statements so long as they relate to abuse or neglect and are sufficiently
corroborated. The Appellate Division pointed out that despite the extension of
the exception from Family Ct Act articles 10 and 10BA to article
6, it had never directly addressed whether Family Ct. Act ' 1046(a)(vi)
can be applied in a proceeding pursuant to Family Ct Act article 8. The First
and Second Departments have concluded that even though the exception has been
applied in custody proceedings under article 6 that are founded on abuse or
neglect, because Family Ct. Act ' 1046(a)(vi) Ais
explicitly limited to child protective proceedings under articles 10 and 10BA, [it] has
no application to family offense proceedings under article 8@ (Matter of
Dhanmatie G. v. Zamin B., 146 A.D.3d 495, 495, 45 N.Y.S.3d 40 [1st Dept. 2017];
see Matter of KhanBSoleil v. Rashad, 108 A.D.3d 544, 546,
969 N.Y.S.2d 104 [2d Dept. 2013] ). This conclusion comports with the language
of the statute. Considering that Family Ct Act article 8 essentially provides a
civil forum to address criminal conduct and is generally utilized between adult
parties, whereas the primary purpose of Family Ct Act articles 10 and 10BA is to
protect vulnerable children, it is reasonable to limit the Family Ct. Act ' 1046(a)(vi)
exception for children=s out‑of‑court statements from being
applied in family offense proceedings. Therefore, it held that Family Court
erred in admitting the children=s out‑of‑court statements during the
fact‑finding hearing, and found that without the hearsay testimony, there was
not a sufficient basis for the court to find that the father committed a family
offense. It reversed and remitted for a new fact‑finding hearing.
Movant to vacate a default judgment,
generally required to demonstrate both a reasonable excuse for failure to
appear a meritorious defense. No such showing is required where a party’s
fundamental due process rights have been denied.
In Matter of
King v King, --- N.Y.S.3d ----, 2018 WL 6683269, 2018 N.Y. Slip Op. 08724 2018
WL 6683269 (3d Dept., 2018) when the wife failed to appear, the court found her
to be in default and dismissed her family offense petition. The court conducted
a brief fact-finding hearing upon the husband’s family offense petition and
found that the wife had committed several family offenses and issued a two-year
order of protection against the wife. The wife moved to vacate the default, and
Family Court denied the motion. The Appellate Division reversed. It noted that
to vacate a default judgment, the movant is generally required to demonstrate
both that there was a reasonable excuse for his or her failure to appear and
that the movant had a meritorious defense against the allegations addressed at
the hearing. “No such showing is required, however, where a party’s fundamental
due process rights have been denied” (Matter of Sonara HH. [Robert HH.], 128
A.D.3d 1122, 1124, 8 N.Y.S.3d 477 [2015]).
At the hearing, the court asked the husband whether he had signed and
dated the petition, and whether everything he had sworn to therein was true.
The husband answered affirmatively. There was no further questioning or
testimony related to the allegations set forth within his petition. The court
instead, sua sponte, addressed a new subject, inquiring about allegations that
had apparently been raised on some other occasion. When the court asked whether
the alleged events had occurred, the husband responded, “Yes, ma’am,” without specifically
describing those factual allegations. Upon this basis, the court then granted a
request by the husband’s counsel to amend the petition to add certain offenses.
The court then found the wife had committed the family offenses. Nothing in the record indicated that the wife
was given any notice that the matters raised by Family Court would be addressed
at the hearing. The Appellate Division held that notice is a fundamental
component of due process. In the absence of notice to the wife, Family Court’s
sua sponte consideration of extraneous allegations violated the wife’s due
process rights. Accordingly, Family Court’s order denying the wife’s motion to
vacate the default had to be reversed.
Supreme Court
Supreme Court Holds Uniform Standards of Professional
Appraisal Practice do not require any specific approach to valuation.
In Macklowe
v. Macklowe, 61 Misc 3d 1226(A) (Sup Ct., 2018) the parties married on January
4, 1959. The parties collected art almost from the beginning of their marriage.
They now possessed an internationally renowned collection of modern and
contemporary art. In 2013, ownership of the art was transferred to LDBM, LLC of
which the Wife was the sole member. The collection consisted of 165 pieces.
Each party presented an expert witness qualified to testify to the value of the
art. The experts presented a value for each piece of art and an overall value
of the collection. Neither expert testified to the value of LDBM, LLC separate
and apart from the art. Neither business records nor tax returns for LDBM, LLC
were received in evidence. The court concluded, therefore, that apart from the
value of the art, LDBM, LLC had no separate value and need not be distributed.
In conducting their respective valuations of the art, the experts each
testified that they performed their valuations in accordance with the Uniform
Standards of Professional Appraisal Practice (” USPAP”). (PX-40). The USPAP
standards for personal property appraisals are set forth in Standard 7. The
Wife argued that the Husband’s expert failed to follow those standards. The court concluded that the rule does not
require any specific approach to valuation. The Standard mandates that the
method employed be appropriate to the property being valued. Rule 7-3 (b)
requires an appraisal to “define and analyze the appropriate market consistent
with the type and definition of value.” But equally important Rule 7-3 (c)
requires the appraiser to “analyze the relevant economic conditions that exist
on the effective date of the valuation, including market acceptability of the
property, and supply, demand, scarcity or rarity.” Moreover, Rule 7-6 requires
the appraiser to “reconcile the data available and analyzed within the approach
or approaches used” and to “reconcile the applicability and relevance of the
approach or approaches, methods and techniques used “(PX-40). Each expert
agreed that it was appropriate to use the sales comparison valuation
methodology, and in doing so each used public auction comparable sales of art
by the artist whose work was being appraised. Notwithstanding their different
approaches, for eighty-six works of art, the experts agreed on the value or the
value attributed by each expert was sufficiently close that the court found it
appropriate to value the piece at the mid-point between the two appraisals. The
Court noted that simply averaging expert appraisals is frowned upon unless the
court can articulate its reason for doing so. The court recognized that
appraisal of art is inexact and that the differences between the two values was
inconsequential given the overall value attributed by each expert for that
individual piece. Hoyt v. Hoyt, 166 AD2d 800 (3d Dep’t 1990); Reingold v.
Reingold. 143 AD2d 126 (2d Dep’t 1988); cf., Antinora v. Antinora, 125 AD3d
1336 (4th Dep’t 2015); Robinson v. Robinson, 133 AD3d 1185 (3d Dep’t). The
court also found that for an additional fifteen pieces of art, only one party
valued the work and the court accepted that valuation. The disparity in the
valuations for the remaining art in the collection precluded the court from
assigning a value to those works. Both experts agreed that many of the
remaining pieces in the collection were of significant value, often rare examples
of that artist’s work. The difference in the experts’ valuations was often
because there had been no recent auction sale of comparable work by the
artist. Accordingly, the court could not
attribute a value to those pieces in the collection.
December 16, 2018
Appellate Division, Second Department
Appellate Division Holds Family Court
complied with Domestic Relations Law § 75–i [5] by describing its communication
with Hawaii Court on the record before the parties and answering the parties’
questions about the discussion
In
Matter of Montanez v Tompkinson, --- N.Y.S.3d ----, 2018 WL 6332479, 2018 N.Y.
Slip Op. 08305 (2d Dept., 2018) the child was born in New York in May 2016. In
early February 2017, the mother moved to Hawaii with the child after the father
allegedly perpetrated acts of domestic violence against her in the child’s
presence. On February 7, 2017, the Administration for Children’s Services
commenced a neglect proceeding against the father in Family Court. On May 3,
2017, the father commenced a custody proceeding in New York, but was unable to
serve the mother until December 2017. On August 24, 2017, the mother commenced
a child custody proceeding in the Hawaii Court. Unaware of the neglect petition
and the father’s custody petition in New York, and upon the father’s default,
it awarded the mother sole custody, in addition to child support. The neglect
petition pending in New York was settled on January 19, 2018, at which time the
Family Court learned of the Hawaii proceeding. The Family Court conferred with
the Hawaii Court, and learned that, when the Hawaii Court issued its orders, it
had only been aware of a criminal proceeding against the father, and that it
was unaware of the neglect and custody proceedings in New York. The Hawaii
Court informed the Family Court that the “the father was personally served with
the mother’s paternity and custody petition.” Family Court declined to exercise
its jurisdiction on the ground that New York was an inconvenient forum and that
Hawaii was a more appropriate forum (see Domestic Relations Law § 76–f). In
determining that Hawaii was a more appropriate forum, the Family Court
speculated that since the Hawaii Court was not aware of the proceedings in New
York when it issued its default orders determining issues of paternity, child
support, custody, and parental access, the Hawaii Court would “likely entertain
an application by the father to vacate his default, and then proceed on the
merits of the mother’s petition.” The Family Court issued a stay of the
father’s custody proceeding “pending the reopening of the mother’s custody
proceeding in Hawaii.”
The
Appellate Division observed that under the Domestic Relations Law, a child
neglect proceeding is encompassed within the definition of a child custody
proceeding (see Domestic Relations Law § 75–a [4]) and as recognized by the
Family Court, the child’s home state was therefore New York. It found that
given the substance of its discussions with the Hawaii Court, the Family
Court’s determination to engage in an inconvenient forum analysis under
Domestic Relations Law § 76–f (1) was an improvident exercise of discretion.
Since New York was the child’s home state pursuant to the UCCJEA, the Hawaii
Court lacked subject matter jurisdiction to make determinations on the mother’s
child custody petition (see e.g. Beam v. Beam, 126 Hawai ‘i 58, 266 P.3d 466).
Having been informed of the facts establishing that New York was the child’s
home state, the Hawaii Court did not acknowledge its own lack of subject matter
jurisdiction to have issued orders regarding child custody (see e.g. W.P. v.
M.S., 141 Hawai ‘i 246, 407 P.3d 1282). “A judgment or order issued without
subject matter jurisdiction is void, and that defect may be raised at any time
and may not be waived” (Editorial Photocolor Archives v. Granger Collection, 61
N.Y.2d 517, 523, 474 N.Y.S.2d 964, 463 N.E.2d 365). In the absence of any
indication that the Hawaii Court vacated those orders, the Family Court should
not have determined that the Hawaii Court was a more appropriate forum. The
father did not participate in any of the proceedings in Hawaii and there was no
certainty that Hawaii would permit the father to reopen the hearings previously
held in order to submit his own testimony and evidence, or that he would be
given an opportunity to challenge the evidence already submitted, including to
cross-examine the mother.
Moreover,
Family Court should not have declined to exercise jurisdiction and designated
Hawaii as a more appropriate forum without first being assured by the Hawaii Court
that all of its prior orders issued without subject matter jurisdiction were
vacated. Further, any stay of the father’s New York custody proceeding should
have been upon the condition that child custody proceedings be promptly
recommenced in Hawaii such that all parties would have the opportunity to be
heard in a hearing de novo (see Domestic Relations Law § 76–f [3]).
The
Appellate Division held that contrary to the father’s contention, the Family
Court complied with Domestic Relations Law § 75–i in its communications with
the Hawaii Court. The Family Court properly contacted the Hawaii Court after
learning of the proceedings conducted there, informed the parties of the
communication, and provided them the opportunity to present facts and arguments
before making a decision on jurisdiction (see Domestic Relations Law § 75–i
[2], [4]). The court complied with the statutory mandate to make a record of
the communication, defined as “information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is retrievable in
perceivable form” (Domestic Relations Law § 75–i [5]). That requirement may be
satisfied by “a memorandum or an electronic record made by a court after the
communication” (Comment, Uniform Child Custody Jurisdiction and Enforcement §
110 [1997]). The Family Court properly made a record of the communication by
describing it on the record before the parties and answering the parties’
questions about the discussion in open court.
It
remitted the matter to the Family Court to determine whether New York is an
inconvenient forum and whether Hawaii is a more appropriate forum.
Application for Counsel Fee Under Family Ct
Act § 438[a] governed by Different Criteria than Under Domestic Relations Law
237 (a).
In
Matter of Levin v Blum, --- N.Y.S.3d ----, 2018 WL 6332487 (Mem), 2018 N.Y.
Slip Op. 08301 (2d Dept., 2018) a child support proceeding pursuant to Family
Court Act article 4, the Appellate Division affirmed an order denying the
mothers application for counsel fees. It observed that the court, in its
discretion, may award an attorney’s fee to the attorney representing the person
who is claiming a right to support on behalf of the child” (Family Ct Act §
438[a]). Absent a finding that nonpayment was willful, an award of counsel fees
is a matter left to the sound discretion of the Family Court. As with an award
of counsel fees made pursuant to Domestic Relations Law § 237(b), the court
must base its decision primarily upon both parties’ ability to pay, the nature
and extent of the services required to deal with the support dispute, and the
reasonableness of their performance under the circumstances” (Matter of Pacheco
v. Pacheco, 163 A.D.3d at 577, 80 N.Y.S.3d 455).
Authors Comment:
There is a significant difference between
counsel fee applications made under Family Court Act §438(a) and those made
under Domestic Relations Law §237(a) and (b). Family Court Act §438 (a) applies
to any proceeding under Article 4 of the Family
Court Act, including proceedings for
support of a spouse and children. In such cases the statute provides that “…
the court may allow counsel fees at any stage of the proceeding, to the
attorney representing the spouse, former spouse or person on behalf of children.” As Levin v Blum, supra, indicates, an award of
counsel fees is a matter left to the sound discretion of the Family Court. Similarly,
Domestic Relations Law §237 (a) applies
to actions in which maintenance and child support may be awarded. It provides that
the Court may direct the person or persons maintaining the action, to pay
counsel fees …as, in the court’s discretion, justice requires, having regard to
the circumstances of the case and of the respective parties. Case law under Domestic
Relations Law §237 (a) holds that an award of counsel fees is a matter
left to the sound discretion of the Supreme Court. Papakonstantis
v Papakonstantis,82 N.Y.S.3d 557, 561, 2018 N.Y. Slip Op. 05326, 2018 WL
3448334, (2 Dept., 2018). However, there is one significant distinction between
the two statutes. Domestic Relations Law
§237 (a) contains “a rebuttable presumption that counsel fees shall be awarded
to the less monied spouse.” No such presumption appears in Family Court Act §438. In our opinion there
appears to be no reason for the distinction between counsel awards made in
matrimonial actions where maintenance or child support is in issue and those
made in family court proceedings where maintenance or child support is in issue.
Family Court Act §438 should be
amended to bring it into line with Domestic Relations Law §237.
Appellate Divison, Third Department
Family Court Custody
Determination Reversed Where Mother’s Assigned Counsel Consistently
Failed to Protect Mother’s Interests and A Sound and Substantial Basis to
Support Family Court’s Determination Did Not Exist
In
Matter of Shirreece AA v Matthew BB, 2018 WL 6204650 (3d Dept.,2018) the
Appellate Division reversed the custody award and remitted the matter to Family
Court for further updated fact-finding, if necessary, before a different judge
and a custody determination that reflected the best interests of the child. It
directed that upon remittal, Family Court should consider assigning the mother
new counsel, as its review of the record revealed that the mother’s assigned
counsel consistently failed to protect the mother’s interests. It pointed out that Family Court’s handling
of unfavorable evidence for the father exemplified its consistent minimization
and disregard of salient evidence regarding the father’s fitness, without any
consideration given to how such evidence may impact the best interests of the
child. In contrast, Family Court misconstrued, mischaracterized and otherwise
amplified the evidence to portray the mother in the light least favorable.
Family Court appeared to give undue consideration to the irrelevant allegation
that the mother had been unfaithful to the father during their relationship.
Additionally, it was clear from Family Court’s statements that it simply did
not like the mother’s parenting style, which was more relaxed and less
regimented than the father’s parenting style.
The evidence did not warrant Family Court’s conclusions that the
mother’s “performance as a parent [was] lacking” or that she did not “provide
[] any parental guidance to the child.” In view of the foregoing, as well as
other unsupported conclusions made by Family Court in its decision and order,
it found that a sound and substantial basis did not exist in this record to
support Family Court’s determination to award the father primary physical
custody of the child. Moreover, even if Family Court’s determination to award
the father primary physical custody were supported by a sound and substantial
basis, there was no basis for the severe reduction of the mother’s overall time
with the child, particularly since the parties had previously shared 50/50
custody of the child. Nor was there record support for the restriction that
Family Court imposed on the mother’s parenting time, which precluded the mother
from having parenting time with the child when her boyfriend had parenting time
with his children.
Order Granting Family Offense Petition
Reversed Where Respondent Was Denied Meaningful Representation. Counsel Did
Almost Nothing to Assist His Client
In
Matter of Wood v Rebich, --- N.Y.S.3d ----, 2018 WL 6204660, 2018 N.Y. Slip Op.
08213 (3d Dept.,2018) Petitioner filed a family offense petition. Following a
hearing, Family Court granted the petition. The Appellate Division reversed and
remitted for a new hearing. It held that respondent was denied meaningful
representation. Before the hearing, counsel did not engage in any discovery. At
the hearing, counsel did not present an opening or closing statement. Nor did
counsel object when Family Court questioned petitioner – who appeared pro se –
and admittedly assisted her in establishing a foundation for two of her three
photographic exhibits. Counsel asked questions of petitioner regarding those
exhibits on voir dire, but objected to admission of only one of them, did not
request that the court disregard petitioner’s handwritten notes on the
exhibits, and did not object to the many hearsay statements made by petitioner.
Counsel declined to cross-examine petitioner, at which point the court stated
that she had established a prima facie case and did not need to call any
further witnesses. Even though respondent had stated – while not under oath –
that one of the photographs was taken when the parties were out together,
rather than while petitioner was unaware of his presence, counsel did not call
respondent or any other witnesses to testify. In short, counsel did almost
nothing to assist his client.
December 1, 2018
Income Withholding Order Forms Revised
Effective August 31, 2018 revised
Income Withholding Order forms promulgated by the Office of Temporary and
Disability Assistance were adopted by Administrative Order AO/262/18 dated August 14, 2018 effective August
31, 2018 for use in Supreme
Courts.
The revised Income Withholding Order Forms are:
LDSS-5037 – IWO form for child support or combined child and spousal support
LDSS-5038 -- IWO form for Spousal Support Only cases
LDSS 5039 - Income Withholding for Support: General Information and Instructions form.
Appellate Division, Second Department
Party Claiming Court Bias Should Preserve
Objection by Moving for The Court to Recuse Itself.
In Matter of Berg v Berg, ---
N.Y.S.3d ----, 2018 WL 5931432, 2018 N.Y. Slip Op. 07719 (2d Dept., 2018) the
Appellate Division held that a party claiming court bias should preserve an
objection and move for the court to recuse itself. Here, although the father
did not move for the Family Court to recuse itself it reached the issue in the
interest of justice. The Court noted that when a claim of bias is raised, the
‘inquiry on appeal is limited to whether the judge’s bias, if any, unjustly
affected the result to the detriment of the complaining party. Here, the record
reflected that when the parties appeared before the Family Court Judge, the
Judge took an adversarial stance toward the father and made numerous improper
remarks to him. The Judge told the father, among other things, that he
“symbolizes everything that’s wrong with the world today,” and that he was
“[s]elfish, self-interested, [and] self-seeking.” The Judge repeated similar
remarks multiple times during the proceeding. The Judge also called the father
“lazy” and “arrogant,” and remarked that he was “the last guy that [the Judge
would] want to be in a fox hole with” because he would “fold like a cheap
suit.” The Judge compared the father’s accumulation of arrears to “an arsonist
that starts a fire that kills one person, that kills ten.” Additionally, the
Judge made the matter personal by comparing the father’s experiences to the
Judge’s own. For instance, the Judge described his own past misfortune, and
detailed how he picked himself up to became a judge. At the conclusion of the
proceeding, the Judge committed the father to four times the period of
incarceration recommended by the Support Magistrate. Under the circumstances,
the bias of the Family Court Judge apparently unjustly affected the result of
the proceeding to the detriment of the father. The order of commitment was
reversed, and the matter remitted to the Family Court for further proceedings
pursuant to Family Court Act § 439(a) before a different Judge.
Penalty Imposed for Civil Contempt Is Not Designed
to Punish but To Compensate the Injured Private Party or To Coerce Compliance
with The Court’s Mandate
In
Matter of Palmitesta v Palmitesta, --- N.Y.S.3d ----, 2018 WL 5931365, 2018
N.Y. Slip Op. 07731 (2d Dept., 2018) the parties stipulation of settlement
which was incorporated but not merged into the parties’ judgment of divorce
entered May 18, 2012, provided that the mother would have custody of the
children and that the father would have parental access. In September 2015, the
father moved to hold the mother in civil contempt for her failure to comply
with the parental access provisions of the stipulation. Almost two years later,
by order dated July 31, 2017, the Family Court, without a hearing, in effect,
denied the motion. The Appellate Division affirmed. It held that the primary
purpose of civil contempt is remedial. Any penalty imposed “is designed not to
punish but, rather, to compensate the injured private party or to coerce
compliance with the court’s mandate or both” (Matter of Department of Envtl.
Protection of City of N.Y. v. Department of Envtl. Conservation of State of
N.Y., 70 N.Y.2d 233, 239). At the time the father’s motion was decided, the
mother was complying with the parties’ stipulation. Although the mother may
have failed to comply with the stipulation in the past, at the time the
father’s motion was decided, a civil contempt finding no longer could have
served its intended purpose of compelling obedience to the parties’
stipulation. The only purpose of a civil contempt sanction at that point would have
been to punish the mother, but punishment is the purpose of criminal contempt,
not civil contempt. Thus, it agreed with the Family Court’s determination, in
effect, denying the father’s motion.
Consent to DNA Test Did Not Obviate the Need
for A Hearing on The Issue of Whether the Acknowledgment of Paternity Should Be
Vacated
In Matter of Andrew E v Angela NS,
165 A.D.3d 658, 85 N.Y.S.3d 115, 2018 N.Y. Slip Op. 06530 (2d Dept., 2018) the
father filed a petition to vacate the acknowledgment of paternity on the ground
of fraud, alleging, inter alia, “I do not believe that I have ever executed an
acknowledgment” of paternity. Although the parties consented to a DNA test, the
Family Court conducted a hearing on the issue of whether the acknowledgment of
paternity should be vacated on the ground of fraud, and denied the father’s
petition. The Appellate Division held that the parties’ consent to a DNA test
did not obviate the need for a hearing on the issue of whether the
acknowledgment of paternity should be vacated on the ground of fraud. Where, as
here, a party seeks to challenge an acknowledgment of paternity more than 60
days after its execution, “Family Court Act § 516–a(b) requires the court to
conduct a hearing to determine the issues of fraud, duress, or a material
mistake of fact [in the execution of the acknowledgment of paternity] before
ordering a [genetic marker test].
Before Precluding Evidence Pursuant to CLR
3126, There Must Be Showing That Failure to Comply with Court-Ordered Discovery
Was Willful and Contumacious
In Maliah-Dupass v Dupass, ---
N.Y.S.3d ----, 2018 WL 6072098, 2018 N.Y. Slip Op. 080188 (2d Dept.,2018) the
plaintiff commenced the action for a divorce in 2012. On August 21, 2012, the defendant served the
plaintiff with discovery demands. Between March 20, 2013, and December 14,
2014, the Supreme Court issued five compliance conference orders, inter alia,
directing the plaintiff to respond to the defendant’s discovery demands.
Pursuant to a compliance conference order dated June 19, 2014, the defendant’s
attorney sent a letter to the plaintiff’s attorney requesting specific items of
discovery. After the plaintiff failed to comply with the compliance conference
order dated December 14, 2014, directing her to comply with the June 19, 2014,
order and the defendant’s discovery demands, the defendant moved, inter alia,
pursuant to CPLR 3126 to preclude the plaintiff from producing certain physical
evidence or testimony at trial and for interim counsel fees in the sum of $5,000.
The court denied the defendant’s unopposed motion on the ground that he did not
comply with the requirements of 22 NYCRR 202.7.
The
Appellate Division reversed and held that Supreme Court should not have denied
the defendant’s motion. It found that it was supported by the affirmation of
his attorney, which contained an adequate statement explaining his good faith
effort to resolve the issues raised by the defendant’s motion (see 22 NYCRR
202.7). It also held that Supreme Court also should not have denied defendant’s
motion to impose a penalty upon the plaintiff pursuant to CPLR 3126. It noted
that a court may prohibit a party “from producing in evidence designated things
or items of testimony” if the party “refuses to obey an order for disclosure or
willfully fails to disclose information which the court finds ought to have
been disclosed” (CPLR 3126[2]). Before a court invokes the drastic remedy of
precluding evidence, there must be a clear showing that the failure to comply
with court-ordered discovery was willful and contumacious. The willful and
contumacious character of a party’s conduct can be inferred from either (1) the
repeated failure to respond to demands or comply with court-ordered discovery,
without a reasonable excuse for these failures, or (2) the failure to comply
with court-ordered discovery over an extended period of time. Here, the
defendant demonstrated that the plaintiff failed to comply with court-ordered
discovery over an extended period of time. The willful and contumacious character
of the plaintiff’s conduct may be inferred from her failure to respond to the
defendant’s letter dated July 16, 2014, despite two court orders directing her
to do so, and her failure to proffer any excuse for her failure. Accordingly,
that branch of the defendant’s motion which was to preclude the plaintiff from
producing physical evidence or testimony at trial relating to certain limited
items previously requested but not disclosed should have been granted.
The
Appellate Division affirmed Supreme Court’s denial of that branch of the
defendant’s motion which was to direct the plaintiff to pay interim counsel
fees in the sum of $5,000, since the plaintiff was the less-monied spouse (see
Domestic Relations Law § 237[a]; Maliah–Dupass v. Dupass, 140 A.D.3d 832, 833,
33 N.Y.S.3d 391).
Appellate Divison, Third Department
Appellate Division Holds Family Court
Properly Considered Father’s Responsive Papers as Motion to Dismiss Without
Requiring Him to File A Formal Notice of Motion
In Sprole v Sprole, --- N.Y.S.3d
----, 2018 WL 6070149, 2018 N.Y. Slip Op. 07998 (3d Dept., 2018) the mother
commenced a proceeding to modify a prior custody order seeking, among other
things, sole legal custody and primary physical custody of the child. At the
initial appearance on the petition, Family Court permitted the father’s
responsive pleadings to serve as a motion to dismiss, which motion the attorney
for the child joined, and provided the mother with an additional two weeks to
provide a response. Following receipt of the mother’s responsive papers and the
father’s reply, Family Court granted the father’s motion and dismissed the
mother’s petition. The Appellate Division affirmed. It rejected the mother’s
contention that Family Court erred when it considered the father’s responsive
papers as a motion to dismiss the petition without requiring him to file a
formal notice of motion. In response to the mother’s petition, the father filed
an answer in which he sought, among other things, to dismiss the petition for
failure to allege a change in circumstances. Upon permitting the father’s
responsive pleading to serve as a notice of motion, Family Court provided the
mother an additional two weeks to respond to same. It held that the mother was
clearly on notice of the father’s argument alleging that she had failed to
present adequate evidentiary proof to demonstrate the requisite change in
circumstances and she subsequently availed herself of this opportunity to
respond to the contention such that she was not prejudiced by the lack of a
formal motion (citing Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037,
1038, 68 N.Y.S.3d 581 [2018]).
Order Dismissing Modification Petition
Reversed Where Attorney for Child Did Not Provide Effective Assistance of
Counsel
In
Matter of Payne, --- N.Y.S.3d ----, 2018 WL 6070232, 2018 N.Y. Slip Op. 07990
(3d Dept., 2018) a custody modification proceeding the Appellate Division
explained that generally, an “attorney for the child must zealously advocate
the child’s position” (22 NYCRR 7.2[d] ) and, where “the child is capable of
knowing, voluntary and considered judgment,” must be “directed by the wishes of
the child, even if the attorney for the child believes that what the child
wants is not in the child’s best interests” (22 NYCRR 7.2[d][2] ). To this end,
an attorney for the child in a custody case “must take an active role in the
proceeding” and “help the child articulate his or her position to the court”.
As such, “an attorney for the child is expected and empowered to fully
participate and advocate by all available means in presenting evidence on
behalf of his or her client, and is fully vested with the responsibility to
present any witness testimony and evidence as may be helpful in fulfilling the
role of advocating for the child”. To effectively represent and protect a
child’s interests, the attorney for the child’s role is twofold: (1) help the
child express his or her wishes to the court, and (2) take an active role in
the proceedings. By meeting with the child and informing Family Court that the
child did not want to continue visitation as ordered, and by requesting and
participating in the Lincoln hearing, the trial attorney for the child met the
first objective. Given the mother’s limited testimony, however, Family Court
understandably characterized the record as “thin.” In its view, the attorney
for the child should have taken a more active role in the proceedings by
presenting witnesses that could speak to the child’s concerns and/or conducting
a more thorough cross-examination of the mother. During his brief
cross-examination of the mother, for example, the trial attorney for the child
did not attempt to elicit any further information about his client’s behavior
and demeanor relative to his visits with the father. It agreed with the
argument made by the appellate attorney for the child that the trial attorney
for the child did not provide effective assistance. Consequently, the order
dismissing the petition should be reversed and the matter remitted to Family
Court for further proceedings, including a new fact-finding hearing.