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Split Brooklyn appellate panel cites judge’s erred judgment in Family Court case

December 15, 2014 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Sylvia Hinds-Radix, Eagle file photo by Mario Belluomo
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A Brooklyn appellate court reversed a family court order, dismissing a mother’s petition to visit her child on the grounds that the mother was denied her right to a hearing.

Jennifer A., a mother of six, agreed to surrender her young son who was later adopted by his foster parents. A provision of the judicial surrender agreement allowed for Jennifer A. to visit her son Jayden A. once every six months under the supervision of at least one adoptive parent.

In November 2012, almost four years after Jayden’s surrender, Jennifer A. petitioned Queens Family Court to enforce her visitation rights for her young child. Two months later, a family court judge called all parties — including Jennifer A., her attorney and the attorney for her son — into court. Without a hearing or listening to oral arguments from either side, the judge summarily dismissed Jennifer’s A. petition, citing a “lengthy neglect case” that served as the basis for the initial order for surrender of parental rights.

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“This is not something that the court does not know the background on,” the lower court judge said on the record in response to attorney queries as to why there was no prior hearing called. “The history, the lack of mother complying with services, the problem with visitations.” 

Jennifer A. contended that her visitation rights were cut-off in 2010 after Jayden’s biological father allegedly threatened one of the adoptive parents. The presiding family court judge made note of the fact that Jennifer A. did not file the petition to enforce her visitation rights.

“But now to wait for two [sic] years after this surrender has taken place, it is not in the child’s best interest. Thank you. Case dismissed.” 

John Macklin, Jennifer A.’s appointed attorney, asserts that in that time gap, his client was trying to work with the adoptive parents and foster agency to resume visitation.  And according to a majority panel of the Appellate Division, Second Department, the family court would likely have been appraised of that fact if a hearing was held before the decision to dismiss Jennifer A.’s case. 

New York law is fairly strict when it comes to the enforcement of visitation provisions in cases of judicial surrender. A provision for visitation can be included and enforced only when it is in the best interest of the child. 

The three majority judges of the appellate division held that the higher court could not make a determination as to whether or not there was a sound basis or reason for upholding the decision to dismiss, due to the fact that there was no hearing on whether or not the denial of Jennifer A.’s visitation rights was in the best interest of Jayden. 

“On appeal, we give great deference to the Family Court’s best interest determination and will affirm that determination if it is supported by a sound and substantial basis in the record, particularly if the determination is made a hearing,” the majority wrote. “But, there is no hearing record for us to review.” 

The lower court judge made her ruling sua sponte, on her own motion and without a specific request by either party. It doesn’t appear from the record available that Jayden’s counsel had filed a motion to dismiss prior to the Family Court’s hasted decision to dismiss. 

“Here, the Family Court dismissed the petition without affording the biological mother an opportunity to establish that enforcement of the visitation provision of the surrender agreement would be in the child’s best interests,” noted the appellate panel. 

On appeal, Jayden’s attorneys argued that the trial judge listed reasons behind her decision including the five prior neglect cases that had been filed against Jennifer A.  Even with this information, the appellate court ruled, the facts listed on the record were not specific enough to form a sound basis dismissal or review.  

“Specifically, while the Family Court alluded to matters in this and other proceedings, the court did not state specific facts that would permit adequate review on appeal,” the higher court stated. 

In her dissent, Associate Appellate Justice Colleen Duffy explained that a more extensive record was not needed on the specific petition for visitation enforcement since Jennifer A.’s record regarding her continued neglect of her children had been documented by the court for years and provided ample reason to uphold the family court’s decision to dismiss.

“[Jennifer A.’s] history of disruptive visits, together with the Family Court’s prior findings of noncompliance by the petitioner, and the fact that the petitioner had not seen the then 7-year-old child since he was 4 years old, constituted adequate relevant information for the court to determine, without a hearing,” Duffy opined.

Jennifer A.’s petition was sent back to Queens Family Court for best interest determination to be made prior to a ruling on the matter of enforcing visitation.

Jayden’s attorneys identified him as a child with special needs and characterized his adoptive parents as providing “extremely good care for very special needs children.”  Speaking with the New York Law Journal, Judith Waksberg, director of the appeals unit in the Legal Aid Society’s Juvenile Rights Practice, said, “[w]e look forward to presenting our client’s (Jayden) position at the new hearing.”

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