In re Forrest S.-R.

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Docket Number

Attorney(S)

Mark Diamond, New York, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Diana Lawless of counsel), for petitioner-respondent.

Judges

Mark C. Dillon
Leonard B. Austin
Sandra Sgroi
Jeffrey A. Cohen

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Smart Summary

Factual and Procedural Background

This case arises from a neglect proceeding under Family Court Act article 10 involving the mother, Shirley X.S., who appeals several Family Court orders related to the custody and visitation of her child, Forrest S.-R. Initially, the child was removed from the mother's custody and placed in temporary custody of the father by a Family Court order dated July 2, 2010. The mother applied for the return of the child pursuant to Family Court Act § 1028, which was denied after a hearing by an order dated August 24, 2010. The mother also sought to vacate the initial custody order, which was denied. Subsequent orders limited the mother’s visitation rights, restricted her ability to file motions without court approval, and prohibited her from being accompanied by friends or relatives during supervised visits. The mother appeals these orders.

Legal Issues Presented

Whether the Family Court properly denied the mother’s application for the return of the child under Family Court Act § 1028 after the child was placed in temporary custody of the father.
Whether the mother was deprived of due process, specifically notice and opportunity to be heard, when the child was removed from her custody and placed with the father.
Whether the Family Court properly denied the mother’s motion to vacate the initial custody order dated July 2, 2010.
Whether the order limiting the mother’s visitation rights and prohibiting her from being accompanied by friends or relatives during visits was lawful, particularly considering the absence of the mother’s counsel at the relevant hearing.
Whether the order precluding the mother from filing motions without prior court approval should be upheld or dismissed as abandoned.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Seaway Capital Corp. v. 500 Sterling Realty Corp., 94 A.D.3d 856, 941 N.Y.S.2d 871	Dismissing appeal as abandoned when issues are not raised on appeal.	The court dismissed the appeal from the order precluding the mother from filing motions without prior court approval as abandoned because she raised no issues on appeal regarding that order.
Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840	Due process afforded to a parent under Family Court Act § 1028 for return of a child temporarily removed.	The court held that due process was satisfied by the procedures under § 1028 and that the mother was not deprived of notice or opportunity to be heard.
Matter of Cory M., 307 A.D.2d 1035, 763 N.Y.S.2d 771	Supporting the due process framework for return of children in neglect proceedings.	Used to support the conclusion that the mother received proper procedural protections.
Matter of Michael Z., 40 A.D.2d 1034, 339 N.Y.S.2d 3	Due process standards in child custody and neglect cases.	Reinforced the adequacy of the hearing and procedures provided to the mother.
Matter of Ramazan U., 303 A.D.2d 516, 756 N.Y.S.2d 442	Consideration of parental interference with visitation as a factor in custody determinations.	The court found evidence that the mother interfered with father's visitation through false abuse allegations, supporting the custody decision.
Matter of Morgan P., 60 A.D.3d 1362, 875 N.Y.S.2d 401	Addressing unnecessary examinations of a child in custody disputes.	The court cited this precedent to note the mother subjected the child to unnecessary medical and police examinations to support false claims.
Matter of Anthony TT., 61 A.D.3d 1137, 876 N.Y.S.2d 561	Supersession of prior orders by subsequent Family Court orders.	The court held the order dated July 2, 2010, was superseded by the August 24, 2010 order, justifying denial of the motion to vacate the earlier order.
Matter of Casey N., 59 A.D.3d 625, 873 N.Y.S.2d 343	Right to counsel in Family Court proceedings affecting visitation.	The court reversed the order dated August 12, 2011, because it was entered without the mother's counsel present, violating her right to counsel.

Court's Reasoning and Analysis

The court analyzed the procedural and substantive issues in light of Family Court Act provisions and relevant precedents. It found that the mother was afforded due process under Family Court Act § 1028 when the child was removed and the application for return was heard, rejecting the mother’s contention of deprivation of notice or hearing opportunity. The evidence at the hearing demonstrated that the mother interfered with the father’s visitation through false abuse allegations and subjected the child to unnecessary examinations, justifying the denial of her application and extension of temporary custody to the father.

The court also determined that the mother’s motion to vacate the initial custody order was properly denied because that order was superseded by a later order. However, the court reversed the order restricting the mother’s visitation to supervised visits without accompaniment by friends or relatives because it was issued in the absence of her counsel, violating her right to counsel under Family Court Act § 262. The appeal from the order precluding the mother from filing motions without prior approval was dismissed as abandoned due to lack of challenge.

Holding and Implications

The court affirmed the denial of the mother’s application for return of the child and the denial of her motion to vacate the initial custody order, dismissed as abandoned the appeal from the order restricting her ability to file motions, and reversed the order prohibiting her from being accompanied by others during supervised visitation.

The direct effect of this decision is to maintain the temporary custody arrangement awarding custody to the father and to uphold certain visitation restrictions, while safeguarding the mother’s right to counsel by reversing the order entered without her attorney present. No new legal precedent was established; the decision applies existing Family Court Act provisions and case law to the facts of this case.

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In the Matter of FORREST S.-R. (Anonymous). Administration for Children's Services, petitioner-respondent; Shirley X.S. (Anonymous), appellant; Forrest R. (Anonymous), nonparty-respondent.

Mark Diamond, New York, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Diana Lawless of counsel), for petitioner-respondent.
Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorney for the child.

In a neglect proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an order of the Family Court, Kings County (Beckoff, J.), dated August 24, 2010, which, after a hearing, inter alia, denied her application pursuant to Family Court Act § 1028 for the return of the subject child to her, and extended the award of temporary custody to the father, which was initially awarded in an order dated July 2, 2010, (2) an order of the same court (Danoff, J.), dated July 19, 2011, which denied her motion pursuant to CPLR 5015 to vacate the order dated July 2, 2010, (3) an order of the same court (Danoff, J.), also dated July 19, 2011, which, inter alia, precluded her from filing motions without prior court approval, (4) an order of the same court (Danoff, J.) dated August 11, 2011, which limited her visitation to supervised visitation for four hours per week and prohibited her “from being alone with the child or taking the child to the restroom or photographing the child,” and (5) an order of the same court (Danoff, J.), dated August 12, 2011, which prohibited her from being accompanied by any friends or relatives during supervised visits.

ORDERED that the appeal from the second order dated July 19, 2011, which precluded the mother from filing motions without prior court approval, is dismissed as abandoned, without costs or disbursements; and it is further,

ORDERED that the first order dated July 19, 2011, which denied the mother's motion to vacate the order dated July 2, 2010, the order dated August 24, 2010, and the order dated August 11, 2011, are affirmed, without costs or disbursements; and it is further,

*483ORDERED that the order dated August 12, 2011, is reversed, on the law, without costs or disbursements.

Since the mother raises no issues on appeal with respect to the second order dated July 19, 2011, which precluded her from filing motions without prior court approval, the appeal from that order must be dismissed as abandoned ( see Seaway Capital Corp. v. 500 Sterling Realty Corp., 94 A.D.3d 856, 857, 941 N.Y.S.2d 871).

There is no merit to the mother's contention that she was deprived of notice and an opportunity to be heard pursuant to Family Court Act § 1027 when the subject child was removed from her custody and transferred to the temporary custody of the father by order of the Family Court, Kings County, dated July 2, 2010. Due process is afforded to a parent by the procedure set forth in Family Court Act § 1028 for the return of a child temporarily removed ( see Nicholson v. Scoppetta, 3 N.Y.3d 357, 376 n. 8, 787 N.Y.S.2d 196, 820 N.E.2d 840;Matter of Cory M., 307 A.D.2d 1035, 763 N.Y.S.2d 771;Matter of Michael Z., 40 A.D.2d 1034, 339 N.Y.S.2d 3). Here, the Family Court fully afforded the mother that relief and, after a hearing pursuant to Family Court Act § 1028, properly denied her application for the return of the child and properly extended the award of temporary custody to the father. The determination in the order dated August 24, 2010, was supported by evidence adduced at the hearing which established that the mother interfered with the father's visitation with false allegations of abuse ( see Matter of Ramazan U., 303 A.D.2d 516, 517, 756 N.Y.S.2d 442), and subjected the child to unnecessary examinations by both a doctor and by the police in an effort to sustain her false allegations ( see Matter of Morgan P., 60 A.D.3d 1362, 875 N.Y.S.2d 401).

The mother's motion to vacate the order dated July 2, 2010, was properly denied, on the ground that that order was superseded by the order dated August 24, 2010 ( see Matter of Anthony TT., 61 A.D.3d 1137, 876 N.Y.S.2d 561).

However, the order dated August 12, 2012, must be reversed. That order granted relief requested when the mother's counsel was not present and could not respond, in violation of the mother's right to counsel ( seeFamily Ct. Act § 262; Matter of Casey N., 59 A.D.3d 625, 873 N.Y.S.2d 343).

The mother's remaining contentions either are without merit or need not be addressed in light of our determination. DILLON, J.P., AUSTIN, SGROI and COHEN, JJ., concur.