Usacomplaints.com » Miscellaneous » Complaint / Review: Generic Family Court - Court takes kids and adjourns for years. Flummoxes appeals. #443122

Complaint / Review
Generic Family Court
Court takes kids and adjourns for years. Flummoxes appeals

The scenario

An innocent New York parent is falsely accused of child abuse with a horrible sounding fact pattern. Police do not arrest the parent and no criminal prosecution takes place. Hence, this case is an amplification of uncharged criminal allegations by the state for receipt of federal Child Abuse Prevention and Treatment Act (CAPTA) funds.

His children are removed by the state extra-judicially and he is served with the petition when he summoned by telephone to come to court. This violates constitutional due process requirements of notice and proper service.

The parent believes the court is wrong and asks for a return of his children. The standard to get the children back is that there is no risk of harm to the children and the procedure is outlined in 1028 of the Family Court Act.

Section 1028 (a) provides in pertinent part:... Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned.

The trial court

The trial court does not schedule hearings en masse.instead, the trial court breaks up hearings over precisely delineated durations of one hour each spread four to six weeks apart in perpetuity.

This means that any hearing will necessarily take place over vast expanses of time even in violation of the Family Court Act. This means that children confiscated by the state will remain confiscated.

This means that appellate proceedings run the risk of failure because obtaining twenty, for example, (20) individual transcripts is more difficult than obtaining one or two.inexperienced attorneys believe that every appeal requires a full set of transcripts that cost $5 per page.

Also, each hearing date included one hour on paper as a time certain, but much less than one hour in fact. For example, on one occasion, the attorney for the Legal Aid Society, for example, may inform the court he would be late. The court will allow the lateness and then proceeded to give the parent thirty (30) remaining minutes for his cross examination of a witness once the Legal Aid lawyer arrives. The hearing will be adjourned at the end of that hour for a month for another hour.

Hence, the court's pattern is to calendar one hour as a time certain weeks or months apart, but then excuse latenesses by government attorneys which eats into the hour. Hence, a 1028 hearing that appears to have taken twenty hours in reality may have been allowed only half that time or less.

The hearing could therefore be completed over two afternoons. Getting transcripts for an appeal would be much cheaper and easier with only two afternoons of testimony.

Huge amounts of resources are wasted as parties and court personnel gather to wait around for everyone else to gather, especially with regard to respondent parent counsel fees and appellate transcript research and acquisition. There is no transparency as to the waste of tax payer money for idle court staff.

Also, the trial judge can be absent on one or more hearing dates causing another adjournment for weeks or months.

The docket sheet appears as if a massively detailed case is being heard when in fact hours and resources are wasted and the children are out of contact with their parents.

After 20 appearances (and six months), the trial judge denies return of the child. The attorney files his appeal.

The appeal

The appellate divisions work in cahoots with the family court because the family court makes money for the state with every family they meddle with.in these difficult economic times, the divisions and their trial courts are cranking up the child removals to help balance state budgets.

The trick pulled here is to dismiss the appeal for lack of transcripts. Imagine your attorney has to gather 20 days of testimony and fails to obtain one. The appellate division will dismiss on the government's motion the appeal for failure to provide all transcripts.

Don't be fooled by the ruse.

All transcripts are not required.

For example, Appellate Division Second Department Rules of Practice provide in pertinent part:
670.9 Alternate Methods of Prosecuting Appeals
An appellant may elect to prosecute an appeal upon a...
(a) Full Record CPLR 5528[a][5]
(b) Appendix Method CPLR 5528[a][5]
(c) Agreed Statement in lieu of a record CPLR 5527
(d) Original Record
1. The following appeals may be prosecuted upon the original record including a properly settled transcript of the trial or hearing, if any:
(ii) appeals from Family Court.

This means that a full set of transcripts is not a requirement even in a fully concluded family court proceeding. Here, we are just appealing a single order from a single statutory hearing.

The Appellate Division has the discretionary power to permit a party for settlement of a transcript even after the appeal has been fully briefed or argued. See People v. Martinez, 115 A.D. 2d 768,496 N.Y.S. 2d 783 (2d Dept. 1985); People v. Laracuente, 125 A.D. 2d 705,510 N.Y.S. 2d 192 (1986), remitted for hearing; appeal held in abeyance, 136 A.D. 2d 742,524 N.Y.S. 82 (2d Dept. 1988) (on return after hearing).

Dismissing is an easy out for a corrupt system snorting in the federal money. Likely because this is a money making child abuse case brought to us by CAPTA or likely because trial court errors are so numerous and substantial an appeal must be quashed upon whatever grounds are available.

Instead, the language contained within the rule does not require a properly settled complete transcript of the trial or hearing. This is so because Family Court appeals "may" be prosecuted upon the original record. They don't have to be. They can be prosecuted on an appendix or even without any transcript.

How is this so? A transcript is only part of the record on appeal. Ernest LL v. Rosemary LL, 50 A.D. 2d 706,375 N.Y.S. 2d 495 (3d Dept. 1975). This is a protection against trial court abuses in flummoxing the creation of a record: like not allowing counsel to speak via successive sustained objections or adjourning the matter ad infinitum and breaking up the continuity of the record.

Another trick is to keep the recording system turned off. Yet another is to maintain poorly performing recording equipment such that the transcript is inaudible. There are as many tricks as there are people in the world who can think them up.

Hence, if we allow a dismissal of an appeal for failure to provide 100% of the transcripts, a trial court is free to manipulate the transcripts if appellate review is based upon production of 100% of the transcripts.

CPLR 5526 does not compel, per se, a complete transcript be filed.

Be aware of your rights under the law and do not allow the trial judge to push you around. Do not allow the appellate court to dismiss your appeals.


Offender: Generic Family Court

Country: USA   State: New York   City: Jamaica
Address: 15120 Jamaica Ave

Category: Miscellaneous

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