How an Adjournment Policy Flummoxes an Appeal and What to Do

Watch how a family court can influence an appeal and turn around due process to effect a constraint on the parent.

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.

The State Removes the Children and You're Off to Family Court

His children are removed by the state extra-judicially and he is served with the petition when he is 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.

The Multi-Adjourned Hearing

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.

Its Effect

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.