Decisions of Interest

Courts Should Consider Alternatives for Involvement in Hearings

The Third Department reversed an order of the Family Court, Broome County (Charnetsky, J.), terminating a father's parental rights, finding that the court should have considered the incarcerated father's request to testify by telephone, rather than sticking to its self-imposed blanket prohibition against such testimony. Eileen R. v. Broome County, 508828, NYLJ 1202476686323, at *1 (3d Dept., 12/23/10) (Spain, J.P., Kavanagh, Stein, McCarthy and Egan Jr., JJ.).

The Broome County Department of Social Services petitioned Family Court seeking termination of a father's parental rights. The respondent, who was incarcerated in Pennsylvania, was appointed an attorney after the court had announced that it was its policy not to take testimony by phone. After the attorney's appointment, no objection was made to this policy. At the hearing, only the petitioner offered testimony. The court found that the children were abandoned, and terminated the respondent's parental rights. He appealed, arguing that his counsel was ineffective and that his right to due process of law was violated because he was prevented from participating in the termination hearing.

The appellate court noted that an action that could strip a father of parental rights is a grave one, and that he has a constitutional right to meaningful involvement in the proceedings (see Matter of Casey L. [Joseph L.], 68 AD3d 1497 (2009); see also US Const, 5th Amend; NY Const, art I, '6) unless accommodation of such right would unduly delay the determination of custody to the detriment of the child (see Matter of James Carton K., 245 AD2d 374 (1997), lv denied 91 NY2d 809 (1998)). Other courts faced with incarcerated parents unable to be present at similar proceedings have protected parental due process rights by allowing testimony by telephone, testimony by deposition, periodic adjournment to allow the parent to review transcripts of testimony, and appointing counsel who can fully participate in the proceeding on behalf of the parent. None of these things occurred here because Family Court refused to consider telephone testimony, counsel appointed to the father put on no defense, and counsel failed to object to the denial of the father's request to appear via telephone.

In reversing due to ineffective assistance of counsel and denial of due process, the Third Department pointed out that telephonic testimony is not a prerequisite to a fair hearing when terminating an incarcerated parent's parental rights, but “[w]hile Family Court is not required to permit testimony by telephone or other electronic means in any particular case, we do not condone any court implementing a blanket policy against such a practice rather than carefully considering the available options based upon the circumstances of each individual case.”

Battered or Not? Court Won't Second-Guess Immigration Judge

Determining that it lacked jurisdiction to hear an allegedly battered woman's appeal of a deportation order, The U.S. Court of Appeals for the Second Circuit dismissed the appeal. Rosario v. Holder, — F.3d —-, 2010 WL 4923557, C.A.2, 12/6/10.

Josefa Rosario, a citizen of the Dominican Republic, married a U.S. citizen in 1996 after having overstayed her entry visa to the United States. Once married, she applied for a green card. The marriage was not successful, however, and the application was not pursued further. In 2000, Rosario's green card application was denied as abandoned, leading the Homeland Security Department to seek an order for her removal from the country. Despite her claim that between June and September 1997 she was physically and mentally abused by her husband on five separate occasions, the immigration judge determined that Rosario was not “battered or subjected to extreme cruelty” within the meaning of those terms in Immigration and Naturalization Act. 8 U.S.C. ' 1229b(b)(2). Such a determination might have entitled her to remain in the United States. In 2008, the BIA affirmed.

Rosario appealed to the Second Circuit, which noted that mixed questions of law and fact in BIA decisions are reviewable in three situations: 1) Where the BIA applies the wrong statute, misinterprets the correct statute, or uses an erroneous legal standard; 2) Where the BIA's underlying factual determination is “flawed by an error of law”; and 3) Where the BIA's conclusion is “without rational justification,” meaning it is located so far outside the range of reasonable options that it is erroneous as a matter of law. Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009). Otherwise, the BIA's application of the law to the facts of any given case amounts to an exercise of its discretion, and its findings are not reviewable in the regular federal courts. In finding that it lacked jurisdiction to hear this case, the Second Circuit determined that “the question whether the abuse Rosario suffered qualifies her for cancellation of removal is not answered by legal analysis but entails a weighing of facts and circumstances, the sort of value judgment that lies at the core of the BIA's exercise of discretion. The BIA's reasoning can be described as an application of law to fact, but that characterization cannot convert a factual determination into a legal question. Because the BIA's decision raised no question of law, we may not second-guess its discretionary factual judgment that Rosario is not eligible for cancellation of removal.”

Strong Reasons Needed for Upsetting Status Quo

The Appellate Division, Second Department, reversed Family Court's grant of primary custody of twins to their father, as both mother and father were fit parents, the reasons given for favoring the father were minor and the children's best interests would not be served by disturbing the custody arrangement they were used to. In re Lawrence C. v. Anthea P., — N.Y.S.2d —-, 2010 WL 5111451 (1st Dept. 12/16/10) (Saxe, J.P., Friedman, Moskowitz, Freedman, Roman, J.J.).

The parties had twins in June 2007 after the mother advertised for a man who would help her conceive
and raise a child. The parties always contemplated that both of them would raise the children together, but frictions arose even during the pregnancy. In October 2007, the father, who had care of the children four nights out of every two weeks, petitioned the court for primary custody. That petition was granted by Family Court, New York County (Elizabeth Barnett, Referee), which ordered that primary custody go to the father once the children reached the age of four and entered school. The reasons enunciated for the change were that the father would better promote a relationship between the children and the non-custodial parent; that the children, having been conceived in a non-traditional way, would fit in better in the father's Manhattan neighborhood than in their mother's Queens Greek Orthodox neighborhood; and that the father was more likely to place the children's needs before his own.

On appeal, the court first observed that the primary concern in custody cases is the best interests of the children (Domestic Relations Law ' 70), and that New York's courts, out of concern for maintaining stability in a child's life, have long held that “[c]hanges in conditions which affect the relative desirability of custodians ' are not to be accorded significance unless the advantages of changing custody outweigh the essential principle of continued and stable custody of children.” Matter of Bennett v. Jeffreys, 40 NY2d 543, 550 (1976). Thus, the goal of maintaining stability in a child's life must win out over minor advantages that might be gained by a change of custody. Here, there was no compelling evidence that the mother had attempted to obstruct the children's relationship with their father, and it was mere speculation that the children would have difficulty fitting in with other children in their Queens neighborhood because of the way their birth came about. In addition, the record contained no evidence for the referee's finding that the father would more likely place the children's needs above his own. Thus, the appellate court stated, it could “find no support in the record for the conclusion that the relative advantage of giving the father primary custody is so great as to justify moving four-year-old children from the primary custody of their mother, who has been their primary caregiver since their birth.” Having vacated the order granting primary custody to the father, the Second Department remanded for reconsideration of other portions of the original order that flowed from the decision to give primary custody to the father, such as awards to each parent of zones of decision-making authority.

Courts Should Consider Alternatives for Involvement in Hearings

The Third Department reversed an order of the Family Court, Broome County (Charnetsky, J.), terminating a father's parental rights, finding that the court should have considered the incarcerated father's request to testify by telephone, rather than sticking to its self-imposed blanket prohibition against such testimony. Eileen R. v. Broome County, 508828, NYLJ 1202476686323, at *1 (3d Dept., 12/23/10) (Spain, J.P., Kavanagh, Stein, McCarthy and Egan Jr., JJ.).

The Broome County Department of Social Services petitioned Family Court seeking termination of a father's parental rights. The respondent, who was incarcerated in Pennsylvania, was appointed an attorney after the court had announced that it was its policy not to take testimony by phone. After the attorney's appointment, no objection was made to this policy. At the hearing, only the petitioner offered testimony. The court found that the children were abandoned, and terminated the respondent's parental rights. He appealed, arguing that his counsel was ineffective and that his right to due process of law was violated because he was prevented from participating in the termination hearing.

The appellate court noted that an action that could strip a father of parental rights is a grave one, and that he has a constitutional right to meaningful involvement in the proceedings (see Matter of Casey L. [Joseph L.], 68 AD3d 1497 (2009); see also US Const, 5th Amend; NY Const, art I, '6) unless accommodation of such right would unduly delay the determination of custody to the detriment of the child (see Matter of James Carton K., 245 AD2d 374 (1997), lv denied 91 NY2d 809 (1998)). Other courts faced with incarcerated parents unable to be present at similar proceedings have protected parental due process rights by allowing testimony by telephone, testimony by deposition, periodic adjournment to allow the parent to review transcripts of testimony, and appointing counsel who can fully participate in the proceeding on behalf of the parent. None of these things occurred here because Family Court refused to consider telephone testimony, counsel appointed to the father put on no defense, and counsel failed to object to the denial of the father's request to appear via telephone.

In reversing due to ineffective assistance of counsel and denial of due process, the Third Department pointed out that telephonic testimony is not a prerequisite to a fair hearing when terminating an incarcerated parent's parental rights, but “[w]hile Family Court is not required to permit testimony by telephone or other electronic means in any particular case, we do not condone any court implementing a blanket policy against such a practice rather than carefully considering the available options based upon the circumstances of each individual case.”

Battered or Not? Court Won't Second-Guess Immigration Judge

Determining that it lacked jurisdiction to hear an allegedly battered woman's appeal of a deportation order, The U.S. Court of Appeals for the Second Circuit dismissed the appeal. Rosario v. Holder, — F.3d —-, 2010 WL 4923557, C.A.2, 12/6/10.

Josefa Rosario, a citizen of the Dominican Republic, married a U.S. citizen in 1996 after having overstayed her entry visa to the United States. Once married, she applied for a green card. The marriage was not successful, however, and the application was not pursued further. In 2000, Rosario's green card application was denied as abandoned, leading the Homeland Security Department to seek an order for her removal from the country. Despite her claim that between June and September 1997 she was physically and mentally abused by her husband on five separate occasions, the immigration judge determined that Rosario was not “battered or subjected to extreme cruelty” within the meaning of those terms in Immigration and Naturalization Act. 8 U.S.C. ' 1229b(b)(2). Such a determination might have entitled her to remain in the United States. In 2008, the BIA affirmed.

Rosario appealed to the Second Circuit, which noted that mixed questions of law and fact in BIA decisions are reviewable in three situations: 1) Where the BIA applies the wrong statute, misinterprets the correct statute, or uses an erroneous legal standard; 2) Where the BIA's underlying factual determination is “flawed by an error of law”; and 3) Where the BIA's conclusion is “without rational justification,” meaning it is located so far outside the range of reasonable options that it is erroneous as a matter of law. Mendez v. Holder , 566 F.3d 316, 322 (2d Cir. 2009). Otherwise, the BIA's application of the law to the facts of any given case amounts to an exercise of its discretion, and its findings are not reviewable in the regular federal courts. In finding that it lacked jurisdiction to hear this case, the Second Circuit determined that “the question whether the abuse Rosario suffered qualifies her for cancellation of removal is not answered by legal analysis but entails a weighing of facts and circumstances, the sort of value judgment that lies at the core of the BIA's exercise of discretion. The BIA's reasoning can be described as an application of law to fact, but that characterization cannot convert a factual determination into a legal question. Because the BIA's decision raised no question of law, we may not second-guess its discretionary factual judgment that Rosario is not eligible for cancellation of removal.”

Strong Reasons Needed for Upsetting Status Quo

The Appellate Division, Second Department, reversed Family Court's grant of primary custody of twins to their father, as both mother and father were fit parents, the reasons given for favoring the father were minor and the children's best interests would not be served by disturbing the custody arrangement they were used to. In re Lawrence C. v. Anthea P., — N.Y.S.2d —-, 2010 WL 5111451 (1st Dept. 12/16/10) (Saxe, J.P., Friedman, Moskowitz, Freedman, Roman, J.J.).

The parties had twins in June 2007 after the mother advertised for a man who would help her conceive
and raise a child. The parties always contemplated that both of them would raise the children together, but frictions arose even during the pregnancy. In October 2007, the father, who had care of the children four nights out of every two weeks, petitioned the court for primary custody. That petition was granted by Family Court, New York County (Elizabeth Barnett, Referee), which ordered that primary custody go to the father once the children reached the age of four and entered school. The reasons enunciated for the change were that the father would better promote a relationship between the children and the non-custodial parent; that the children, having been conceived in a non-traditional way, would fit in better in the father's Manhattan neighborhood than in their mother's Queens Greek Orthodox neighborhood; and that the father was more likely to place the children's needs before his own.

On appeal, the court first observed that the primary concern in custody cases is the best interests of the children (Domestic Relations Law ' 70), and that New York's courts, out of concern for maintaining stability in a child's life, have long held that “[c]hanges in conditions which affect the relative desirability of custodians ' are not to be accorded significance unless the advantages of changing custody outweigh the essential principle of continued and stable custody of children.” Matter of Bennett v. Jeffreys , 40 NY2d 543, 550 (1976). Thus, the goal of maintaining stability in a child's life must win out over minor advantages that might be gained by a change of custody. Here, there was no compelling evidence that the mother had attempted to obstruct the children's relationship with their father, and it was mere speculation that the children would have difficulty fitting in with other children in their Queens neighborhood because of the way their birth came about. In addition, the record contained no evidence for the referee's finding that the father would more likely place the children's needs above his own. Thus, the appellate court stated, it could “find no support in the record for the conclusion that the relative advantage of giving the father primary custody is so great as to justify moving four-year-old children from the primary custody of their mother, who has been their primary caregiver since their birth.” Having vacated the order granting primary custody to the father, the Second Department remanded for reconsideration of other portions of the original order that flowed from the decision to give primary custody to the father, such as awards to each parent of zones of decision-making authority.