Decisions of Interest

Despite Conviction for Sexually Abusing Child, Victim Is Not an 'Abused Child'

In spite of the fact that the respondent father had been convicted of sexually abusing his daughter and was serving a sentence for the crime, the child had not been adjudicated an “abused child” in accordance with the Family Court Act, so the Department of Human Services (DHS) was not excused from providing reunification services that might bring the father and daughter back together. Matter of Terrence C. v. Clarence W., NN-08048/49-07 (Fam. Ct., Monroe Cty. 5/26/09) (Kohout, J.).

In a child neglect case, counsel for petitioner Monroe County Department of Human Services (DHS) filed an order to show cause pursuant to Family Court Act ' 1039-b requesting that the agency be excused from providing reasonable efforts to assist in the reunification of the respondent and his daughter, who is in foster care. DHS had filed a neglect petition against the respondent regarding his daughter, alleging that he had inappropriately disciplined her. She was thereafter removed from the home and placed in foster care. The court adjudicated the girl to be a neglected child based on her father's excessive corporal punishment. However, in a separate criminal proceeding, the father was tried and convicted of course of sexual conduct of a child in the first degree (Penal Law ' 130.75 (a)(1)) and endangering the welfare of a child (Penal Law ' 260.10 (1)) and sentenced to a 10-year prison term. (As is common practice, DHS may not have pressed the sexual abuse charges in Family Court under the theory that a Family Court prosecution might compromise the criminal case, since Family Court fact-finding hearings generally occur before the criminal trial.)

It was against this background that DHS brought its motion. The court here denied the motion, finding ' arguably because of a technicality in the Social Services law ' that there was no basis under the statute to terminate the agency's legal responsibility to make reasonable efforts to assist the respondent in reuniting with his daughter. The court pointed out that termination of reasonable efforts may be made when the parent has subjected the child to “aggravated circumstances” (Family Court Act ' 1039-b (b)(1)). Family Court Act ' 1012 [j] defines “aggravated circumstances” as “where a child has been ' severely ' abused, as defined in subdivision 8 of section [384-b] of the social services law.” Counsel for DHS argued that the child had been subjected to aggravated circumstances, because she was “severely abused” by the respondent.

The definition of a “severely abused” child includes a child who has been found to be an abused child having been sexually abused by her parent “provided however, [that] the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in section[s] ' '130.75 ' of the penal law” (Social Services Law '384-b (8)(a)(ii); see also Family Court '1012 (e)(iii)). With this definition in mind, DHS counsel argued the child was severely abused by her father who committed a felony sexual offense against her that resulted in his conviction in criminal court. Although logic might point to DHS having made its case with this evidence, the court was unpersuaded, stating, “Counsel for DHS ' ignores the first portion of Social Services Law '384-b (8) (a)(ii), which imposes an additional requirement, that 'the child has been found to be an abused child, as defined in paragraph (iii) of subdivision [e] of section ten hundred twelve of the family court act, as a result of such parent's acts'” (emphasis added). Thus, in order for the court to terminate DHS's responsibility to assist the respondent, DHS was required to demonstrate that the child abuse victim had been found to be an abused child in accordance with the Family Court Act, in addition to her father being convicted of penal law sexual offenses against her. Here, because the term “abused child” is not an element of the crime of course of sexual conduct against a child in the first degree, and criminal court lacks jurisdiction to adjudicate the status of children under the Family Court Act (see Family Court Act ' 115 (a)), the child had not been adjudicated an “abused child.” Therefore, there was no basis upon which the court felt it could absolve DHS of its duty to offer reunification services to the respondent.

Fraud Suit Timely Brought After Ex-Husband Allegedly Concealed Assets

The Court of Appeals of New York has held that a fraud case brought by a woman against her ex-husband's estate should not have been dismissed by the Appellate Division, as the woman filed suit against the estate within two years of discovering the alleged fraud. Sargiss v. Magarelli, — N.E.2d —-, 2009 WL 1543701 (N.Y., 6/4/09) (Lippman, J.).

The couple was divorced in 1998. In connection therewith, the husband provided his wife with a statement of net worth in 1996, which listed as an asset shares in a company named Panrad. No value was assigned to that asset in the statement of net worth. During his deposition in 1998, the husband stated that he had sold the Panrad shares to his brother in 1993, pursuant to a 1990 agreement. The parties settled their financial affairs, were divorced, and went their separate ways.

In 2004, when the ex-husband died, his daughter was going through his things and discovered papers that indicated he might not have sold his shares of Panrad. Plaintiff commenced this fraud action in May 2005, more than six years after the fraud was allegedly perpetrated but less than two years from the discovery of the financial documents in the decedent's California home. The
Appellate Division ruled the case was untimely brought, and dismissed it.

Fraud-based actions must be commenced within six years of the fraud or within two years from the time the plaintiff discovers the fraud or “could with reasonable diligence have discovered it.” CPLR 213(8). The question of whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was “possessed of knowledge of facts from which [the fraud] could be reasonably inferred” Erbe v. Lincoln Rochester Trust Co., 3 NY2d 321, 326 (1957). In addition, “Generally, knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute.” Id. Finding there was no indication that the plaintiff had knowledge of the alleged fraud prior to her daughter's discovery of the financial documents, and that it was unclear how she could have discovered the alleged fraud earlier than she did, the Court of Appeals reversed and ordered the case returned to Supreme Court, Westchester County.

Despite Conviction for Sexually Abusing Child, Victim Is Not an 'Abused Child'

In spite of the fact that the respondent father had been convicted of sexually abusing his daughter and was serving a sentence for the crime, the child had not been adjudicated an “abused child” in accordance with the Family Court Act, so the Department of Human Services (DHS) was not excused from providing reunification services that might bring the father and daughter back together. Matter of Terrence C. v. Clarence W., NN-08048/49-07 (Fam. Ct., Monroe Cty. 5/26/09) (Kohout, J.).

In a child neglect case, counsel for petitioner Monroe County Department of Human Services (DHS) filed an order to show cause pursuant to Family Court Act ' 1039-b requesting that the agency be excused from providing reasonable efforts to assist in the reunification of the respondent and his daughter, who is in foster care. DHS had filed a neglect petition against the respondent regarding his daughter, alleging that he had inappropriately disciplined her. She was thereafter removed from the home and placed in foster care. The court adjudicated the girl to be a neglected child based on her father's excessive corporal punishment. However, in a separate criminal proceeding, the father was tried and convicted of course of sexual conduct of a child in the first degree (Penal Law ' 130.75 (a)(1)) and endangering the welfare of a child (Penal Law ' 260.10 (1)) and sentenced to a 10-year prison term. (As is common practice, DHS may not have pressed the sexual abuse charges in Family Court under the theory that a Family Court prosecution might compromise the criminal case, since Family Court fact-finding hearings generally occur before the criminal trial.)

It was against this background that DHS brought its motion. The court here denied the motion, finding ' arguably because of a technicality in the Social Services law ' that there was no basis under the statute to terminate the agency's legal responsibility to make reasonable efforts to assist the respondent in reuniting with his daughter. The court pointed out that termination of reasonable efforts may be made when the parent has subjected the child to “aggravated circumstances” (Family Court Act ' 1039-b (b)(1)). Family Court Act ' 1012 [j] defines “aggravated circumstances” as “where a child has been ' severely ' abused, as defined in subdivision 8 of section [384-b] of the social services law.” Counsel for DHS argued that the child had been subjected to aggravated circumstances, because she was “severely abused” by the respondent.

The definition of a “severely abused” child includes a child who has been found to be an abused child having been sexually abused by her parent “provided however, [that] the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in section[s] ' '130.75 ' of the penal law” (Social Services Law '384-b (8)(a)(ii); see also Family Court '1012 (e)(iii)). With this definition in mind, DHS counsel argued the child was severely abused by her father who committed a felony sexual offense against her that resulted in his conviction in criminal court. Although logic might point to DHS having made its case with this evidence, the court was unpersuaded, stating, “Counsel for DHS ' ignores the first portion of Social Services Law '384-b (8) (a)(ii), which imposes an additional requirement, that 'the child has been found to be an abused child, as defined in paragraph (iii) of subdivision [e] of section ten hundred twelve of the family court act, as a result of such parent's acts'” (emphasis added). Thus, in order for the court to terminate DHS's responsibility to assist the respondent, DHS was required to demonstrate that the child abuse victim had been found to be an abused child in accordance with the Family Court Act, in addition to her father being convicted of penal law sexual offenses against her. Here, because the term “abused child” is not an element of the crime of course of sexual conduct against a child in the first degree, and criminal court lacks jurisdiction to adjudicate the status of children under the Family Court Act (see Family Court Act ' 115 (a)), the child had not been adjudicated an “abused child.” Therefore, there was no basis upon which the court felt it could absolve DHS of its duty to offer reunification services to the respondent.

Fraud Suit Timely Brought After Ex-Husband Allegedly Concealed Assets

The Court of Appeals of New York has held that a fraud case brought by a woman against her ex-husband's estate should not have been dismissed by the Appellate Division, as the woman filed suit against the estate within two years of discovering the alleged fraud. Sargiss v. Magarelli, — N.E.2d —-, 2009 WL 1543701 (N.Y., 6/4/09) (Lippman, J.).

The couple was divorced in 1998. In connection therewith, the husband provided his wife with a statement of net worth in 1996, which listed as an asset shares in a company named Panrad. No value was assigned to that asset in the statement of net worth. During his deposition in 1998, the husband stated that he had sold the Panrad shares to his brother in 1993, pursuant to a 1990 agreement. The parties settled their financial affairs, were divorced, and went their separate ways.

In 2004, when the ex-husband died, his daughter was going through his things and discovered papers that indicated he might not have sold his shares of Panrad. Plaintiff commenced this fraud action in May 2005, more than six years after the fraud was allegedly perpetrated but less than two years from the discovery of the financial documents in the decedent's California home. The
Appellate Division ruled the case was untimely brought, and dismissed it.

Fraud-based actions must be commenced within six years of the fraud or within two years from the time the plaintiff discovers the fraud or “could with reasonable diligence have discovered it.” CPLR 213(8). The question of whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was “possessed of knowledge of facts from which [the fraud] could be reasonably inferred” Erbe v. Lincoln Rochester Trust Co. , 3 NY2d 321, 326 (1957). In addition, “Generally, knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute.” Id. Finding there was no indication that the plaintiff had knowledge of the alleged fraud prior to her daughter's discovery of the financial documents, and that it was unclear how she could have discovered the alleged fraud earlier than she did, the Court of Appeals reversed and ordered the case returned to Supreme Court, Westchester County.