Important New Decisions - July 20, 2011

Costs of After-school Program and Summer Camp Qualify as Child Care Expenses.

In Matter of Scarduzio v Ryan, --- N.Y.S.2d ----, 2011 WL 2714203 (N.Y.A.D. 2 Dept.) the Appellate Division observed that the party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification. A change in the expenses for the child may constitute such a change in circumstances . It was undisputed that the child care expenses had decreased significantly since the order of support had been issued, due to the child attending school full time. It held that the father should only be required to pay his share of the child care expenses actually incurred by the mother commencing January 7, 2010, the date that the father filed his petition for a downward modification of his child support obligation . It rejected the father's argument that the costs of the after-school program and summer camp in which the child was enrolled did not qualify as child care expenses. The father offered no evidence to refute the mother's contention that these programs provided care for the child while she was at work. Accordingly, those programs qualified as child care expenses consistent with the purpose of Family Court Act 413(1)(c)(4).


An Evidentiary Ruling, Even When Made in Advance of a Trial on Motion Papers, Is Not Appealable

In Matter of Lyons v Lyons, --- N.Y.S.2d ----, 2011 WL 2714210 (N.Y.A.D. 2 Dept.) The Appellate Divison ruled that the appeal from so much of the order dated August 9, 2010, as denied the motion of Audrey Lyons to preclude the testimony of a court-appointed forensic evaluator at a hearing to be held on the issue of custody and to preclude the use of that evaluator's report at the hearing must be dismissed because it concerned an evidentiary ruling, which, even when made in advance of a hearing or trial on motion papers, is not appealable as of right or by permission.



Order Based upon Reports and Trial Testimony of Psychologists Which Made Reference to Statements about Respondent Attributed to Other Witnesses Who Did Not Testify at Trial, or Was Otherwise Qualified for Admission Pursuant to a Recognized Exception to the Rule Against Hearsay, Is Reversible Hearsay.

In Matter of Anthony WW, --- N.Y.S.2d ----, 2011 WL 2637279 (N.Y.A.D. 3 Dept.) Family Court ultimately terminated respondent's parental rights on the ground that he suffered from a mental illness that prevented him from providing proper care for his children. The Appellate Division reversed. It observed that at trial petitioner presented the testimony and reports of Richard Liotta and Donald Danser, both of whom were licensed psychologists who examined respondent. Respondent contended that both psychologists relied on inadmissible hearsay in preparing their reports and in arriving at their final opinions, and that since Family Court's decision terminating his parental rights was based in large measure on their reports and trial testimony, it must be reversed. Respondent argued that both psychologists, in their reports and in their trial testimony, made reference to statements about respondent attributed to other witnesses who did not testify at trial, none of which was admitted into evidence or was otherwise qualified for admission pursuant to a recognized exception to the rule against hearsay. Petitioner contended that both opinions were properly admitted and were either based on facts in the record or personally known to the witness or qualified as material of a kind accepted in the profession as reliable in forming a professional opinion and were properly admitted at trial. Danser testified that, in forming his opinion, he relied on his interview with respondent, as well as the results of various psychological tests that he performed on him. Danser also reviewed records that petitioner had on file regarding respondent, including case, progress and supervision notes, all of which were compiled during a four-year period beginning in 2003, as well as documents describing mental health treatment that respondent received during this time period. While Danser did not testify that this evidence was commonly relied upon in his profession to perform such an evaluation, Family Court determined that it was proper for him to refer to it, because some of this evidence was contained in the trial testimony given by other witnesses or in records that had been properly admitted into evidence at trial. However, the court did acknowledge that some of the references in Danser's report should not have been admitted and, for that reason, directed that a section of his report, entitled "Review of Records," be stricken because it referred to evidence that had not been admitted at trial. Significantly, Danser was never asked what impact this redacted evidence had on his evaluation of respondent and what effect, if any, it had on his opinion regarding respondent's mental condition. Similar issues existed with Liotta's report and testimony, both of which were admitted into evidence at trial. When he was first retained to perform his evaluation, Liotta was provided with petitioner's complete file on respondent. Later, he was asked to return the file and then, pursuant to a court order, was provided with a limited record to review. Liotta was also directed to limit his review to the records provided and not base his evaluation on respondent's fitness as a parent on statements made by the mother about respondent or on any collateral interviews that he may have conducted with other individuals regarding respondent. However, it was clear from the content of his report, as well as his testimony at trial, that Liotta, in forming his final opinion regarding respondent's fitness as a parent, relied on observations of respondent made by his eldest son's mental health provider as well as on statements made by the mother about respondent. In addition, Liotta's interviews with respondent's caseworker and his current mental heath therapist were referenced in his report and obviously played a role in the opinion that he ultimately offered regarding respondent's mental illness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if this evidence was normally relied on within his profession as appropriate for the performance of such an evaluation and, while some of it was redacted, including any reference to his interview with the mental health therapist, Liotta was never
asked what impact this evidence had in formulating his final opinion as to
respondent's fitness as a parent. As a result, a proper foundation was not laid for the admission of the testimony of either psychologist or their reports. Without this evidence, Family Court's determination that respondent suffered from a mental illness that affected his ability to provide for his children was not supported by clear and convincing evidence. In footnotes the court pointed out that a redacted version of respondent's records from 2005 through 2007 was admitted into evidence at the trial. It also noted that Danser's evaluation focused on respondent's ability to function and contained recommendations for treatment. It was not performed for the specific purpose of determining whether respondent had the ability to provide an acceptable level of care for his children and, for that reason alone, should not have been admitted into evidence (see Social Services Law 384-b).


A Party May Be Held in Contempt for Their Subsequent Violation of an Oral Order or Directive, Issued in the Contemnor's Presence, Placed upon the Record and Transcribed into the Minutes of the Proceeding

In Matter of Lagano v Soule, --- N.Y.S.2d ----, 2011 WL 2637330 (N.Y.A.D. 3 Dept.), Petitioner (mother) and respondent Eric K. Taylor (father) were the biological parents of a son (born in 2002). In May 2005, respondent Linda S. Soule, the child's paternal grandmother, was granted custody of the child, and the mother was awarded specified periods of visitation. The mother commenced proceedings seeking to modify the prior award of custody and hold Soule in contempt for failing to comply with the visitation schedule. A hearing ensued as to the modification petitions in February 2006, at the conclusion of which Family Court granted the mother temporary custody of the child. The mother's attorney was instructed to prepare an order to that effect, which also was to include a directive that Soule produce the child at the next scheduled court appearance. When the matter reconvened in April 2006, Soule, who had relocated with the child out of state, appeared via telephone. Prior to adjourning the hearing due to the absence of the then attorney for the child, Judge Connerton advised Soule--repeatedly and in no uncertain terms--that she was required to produce the child on May 2, 2006, and Soule, in turn, indicated that she understood the court's directive. When Soule failed to appear or produce the child as ordered, the court awarded the mother sole legal custody with visitation to the father. After eventually locating and regaining physical custody of her son in August 2009, the mother commenced this violation proceeding against Soule and the father. Following a hearing in July 2010, Family Court upon application of the attorney for the child, dismissed the violation petition with prejudice, finding that the mother failed to establish that Soule was either served with or otherwise had knowledge of the May 2006 order. This appeal by the mother ensued and the Appellate Division found that the mother established a prima facie case of a willful violation as to Soule and, as such, Family Court erred in granting the motion to dismiss to that extent. The underlying pro se violation petition--liberally construed alleged a violation of both Judge Connerton's written May 2006 order and oral April 2006 directive, the latter of which ordered Soule to produce the child in court on May 2, 2006. Although there was insufficient evidence to support a finding that Soule had actual knowledge of the written May 2006 order there was no question that she had actual knowledge of Judge Connerton's April 2006 oral directive. In this regard, it is clear that "an oral 'order' or directive, issued in the contemnor's presence, placed upon the record and transcribed into the minutes of the proceeding, may be deemed a 'mandate' ... and, hence, may form the basis for contempt" (Matter of Betancourt v. Boughton, 204 A.D.2d 804, 808 [1994] ). It was clear from a review of the April 2006 transcript, of which Family Court took judicial notice, that Soule was repeatedly and unequivocally ordered by Judge Connerton to produce the child at the May 2006 court appearance, which, despite her acknowledgment of this directive and her expressed understanding thereof, Soule thereafter failed to do. Further, Soule's defiance of this clear and lawful mandate, as well as her subsequent conduct in secreting the child's whereabouts for the ensuing three years, plainly prejudiced the mother's parental rights and, was sufficient to establish a willful violation of Judge Connerton's April 2006 order. Accordingly, the motion dismissing the violation petition against Soule was denied and the matter was remitted to Family Court for further proceedings. In a footnote the court observed that Family Court, without objection, took judicial notice of "all prior proceedings involving [the child at issue]. The mere fact that the court did so in the context of a separate Family Court proceeding involving the child was of no moment, as a court may take judicial notice of prior judicial proceedings though in a different court and involving different parties. Family Court also took judicial notice of Judge Connerton's May 2006 order.



Once a Scientific Procedure Has Been Proved Reliable, a Frye Inquiry Need Not Be Conducted Each Time Such Evidence Is Offered and Courts May Take Judicial Notice of its Reliability


In Matter of Bethany F, 925 N.Y.S.2d 737 (4 Dept, 2011) respondent father
appealed from an order that placed him under the supervision of petitioner based on a finding that he sexually abused his daughter. The Appellate Division affirmed holding that Family Court did not abuse its discretion in denying his motion for a Frye hearing with respect to the admissibility of validation testimony of a court-appointed mental health counselor. "Once a scientific procedure has been proved reliable, a Frye inquiry
need not be conducted each time such evidence is offered and courts may take
judicial notice of its reliability (People v. Hopkins, 46 A.D.3d 1449, 1450, 848 N.Y.S.2d 460]; see People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374). Here, the court-appointed counselor utilized the Sgroi method to interview the child and make a determination with respect to the veracity of her allegations. The Court of Appeals has cited to Dr. Sgroi's "Handbook of Clinical Intervention in Child Sexual Abuse" (see Matter of Nicole V., 71 N.Y.2d 112, 120-121, 524 N.Y.S.2d 19, 518 N.E.2d 9140, and other courts in New York State have admitted validation testimony of experts who have utilized the Sgroi method. The court-appointed counselor testified at the hearing that the Sgroi method was used by "all" counselors in the field to validate allegations of sexual abuse. Inasmuch as a Frye hearing is required only where a party seeks to introduce testimony on a novel topic (see People v. Garrow, 75
A.D.3d 849, 852, 904 N.Y.S.2d 589), and there was no indication in the record that the methods used by the court-appointed counselor to validate the allegations of sexual abuse in this case were novel, the father's motion for a Frye hearing was properly denied.