Legal Aid Wins Major Appellate Ruling To Reunite Children With Their Parents
FRIDAY, DECEMBER 28, 2012

In a case in which The Legal Aid Society's Juvenile Rights Practice represents the children, the Second Department of the Appellate Division ruled that Family Court Judges have the authority to release children to the custody of parents in cases where Criminal Court orders of protection forbid child-parent contact but also contemplate future amendments by the Family Court overseeing the case.

The Second Department reversed a Queens Family Court Judge who had refused to allow unsupervised or overnight visitation between a mother and her children even though all the parties, and the Judge herself, agreed that this would be in the best interests of the children. The reason for the trial Judge's denial of this relief was that there was a Criminal Court order of protection against the mother. The Criminal Court order of protection stated that it was "subject to Family Court," but the Family Court Judge did not interpret that to mean that she could allow unsupervised visitation. During the course of the appeal, after the Criminal Court had modified the order of protection, the Family Court eventually released the children to the care of their mother. The Second Department agreed to reach the issue on appeal even though it was now moot because the issue is an important one which is likely to recur. The Second Department found, as The Legal Aid Society had argued, that decisions as to the best interests of the child are ones that are properly made by the Family Court, and noted that the children are not represented in the Criminal Court proceedings.

Legal Aid Society Juvenile Rights staff attorney Claire Merkine handled the appeal in the Second Department, and staff attorney Deborah Williams was the trial attorney in the case. Judith Waksberg, the Director of the Society's Juvenile Rights Appeals Unit, told the New York Law Journal that The Legal Aid Society is handling another appeal pending before the Second Department on the same legal question.




The New York Law Journal
Family Court Role Is Clarified in Child Protection Matters
December 27, 2012
By Andrew Keshner

Family courts have the authority to release children to the custody of parents in cases where Criminal Court orders of protection forbid child-parent contact but also contemplate future amendments by the Family Court overseeing the case, a Brooklyn appellate court has ruled.

"The Family Court has the unique resources to effectuate and determine the best interests of the children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation," Justice John Leventhal (See Profile) of the Appellate Division, Second Department, wrote for a unanimous panel in Matter of Brianna L., 2012-05594, reversing a lower court.

With the underlying case already resolved by the time of the Dec. 26 decision, the Second Department still opted to rule on the matter calling the legal issues "important" and "likely to recur."

Leventhal was joined by Justices Peter Skelos (See Profile), Anita Florio (See Profile) and L. Priscilla Hall (See Profile), who heard oral arguments on Oct. 9.

The case arises from Marie A.'s guilty plea in Queens Criminal Court for endangering the welfare of a child in connection to her alleged beating of her then 6-year-old son, Elijah. Marie was ordered to attend a parenting skills course and anger management program. She also had an order of protection entered against her in Queens Criminal Court that barred any contact with Elijah for five years.

New York City's Administration for Children's Services (ACS) then initiated neglect proceedings against Marie in Queens Family Court.

But the agency later submitted a report showing Marie had attended the court-ordered programs and "was capable of caring for" Elijah and his older sister, Brianna.

The Criminal Court order of protection was amended to bar Marie from any contact with Elijah—but included the phrase "Subject to Family Court."

In May 2012, Queens Family Court Judge Marybeth Richroath (See Profile) ruled the phrase was "shorthand" for "subject to subsequent Family Court orders of protection and visitation."

Still, Richroath said, the language did not give her "jurisdiction to, in essence, overrule the Criminal Court, and return custody of the protected party to the [mother]."

Though it would have been in the children's best interests to return to Marie, Richroath said the order of protection's wording foreclosed that possibility.

As a result, she ordered the children be released to the custody of their father. Additionally, she said Elijah could not have unsupervised visitation or overnight visits with Marie.

Both the children and mother appealed.

After the appeal was filed, the Criminal Court issued another protection order that, among other things, deleted the problematic stay-away clauses. Consequently, Richroath allowed the children to be released to Marie.

The appellants acknowledged the turn of events rendered the case academic, but requested the Second Department to rule on the matter, which it agreed to do.

In his decision, Leventhal said Family Court is "uniquely situated" to issue rulings consistent with a child's best interests, for example having the power to order a child's examination in connection with protective proceedings.

Moreover, in such proceedings, attorneys are appointed for the children.

"In contrast, Elijah was unrepresented in the criminal proceeding," Leventhal noted. He also pointed out that Family Court had access to an ACS report on Marie's capacity as a parent.

"For these reasons, it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in a child protective proceeding, to select the dispositional alternative which is most consistent with the best interests of the children before it," Leventhal said.

On appeal, the children were represented by Tamara Steckler and Claire Merkine of the Legal Aid Society.

Judith Waksberg, director of appeals for Legal Aid's Juvenile Rights Practice, said she was "happy" the Second Department "recognized" questions of custody and visitation were meant for the Family Court.

Waksberg could not estimate the frequency with which these issues arise, but noted she had another appeal pending before the Second Department on the same legal question.

Marie was represented pro bono by Erika Stallings and Margaret Dale of Proskauer Rose.

Stallings, who argued the case, welcomed the decision, saying that prior to the appeal a common practice was the issuance of a Criminal Court order of protection with similar clauses written in to give Family Court judges leeway as their own proceedings continued.

The lower court's ruling was "a big departure from how things were done for so long," she said.

"We're just very happy with how it came out. If it had gone the other, way, it would have impacted a lot of families," Stallings said.

At trial, Marie was represented by Matthew Wolf of the Center for Family Representation.