Decisions of Interest

The Third Department affirmed after finding that the social services agency established, by clear and convincing evidence, that it had done the one thing it was required to do: make “diligent efforts to encourage and strengthen the parental relationship.” Social Services Law ' 384-b (7)(a); see Matter of Jyashia RR. (John VV.), 92 AD3d 982, 983 (2012); Matter of Trestin T. (Shawn U.), 82 AD3d 1535, 1536 (2011), lv denied 17 NY3d 704 (2011). The court noted that the agency's responsibilities concerning “diligent efforts” to reunite parents with their children are different when a parent is incarcerated, due to the fact that counseling, treatment opportunities and visits cannot be accomplished as they could be with a non-incarcerated parent. Stated the court, “[A]n agency may fulfill its duty to make diligent efforts to encourage and strengthen the parental relationship of an incarcerated parent by, for example, apprising the incarcerated parent of the child's well-being, developing an appropriate service plan, investigating possible placement of the child with relatives suggested by the parent, responding to the parent's inquiries and facilitating telephone contact between the parent and child (see Matter of Marquise JJ. (Jamie KK.)), 91 AD3d 1137, 1138-1139 (2012), lv denied 19 NY3d 801 (2012); Matter of Hailey ZZ. (Ricky ZZ.), 85 AD3d 1265, 1266 (2011), affd ___ NY3d ___, 2012 NY Slip Op 04374 (2012); Matter of Trestin T. (Shawn U.), 82 AD3d at 1536; Matter of Kaiden AA. (John BB.), 81 AD3d 1209, 1209-1210 (2011)).” Here, although the social services agency did not make any attempts to work with the respondent during periods of his incarceration, they did take the proper steps while he was out of prison. Additionally, while incarcerated, the respondent father knew where his children were, so he could have telephoned them and could have sought visitation with them. He did not do these things, however. Taken together, these facts showed that the petitioning agency satisfied its statutory duty to make diligent efforts to facilitate the father's relationship with his children.

NYC Supports Same-Sex Litigant Fighting for Inheritance Rights

The City of New York submitted an amicus brief to the U.S. Supreme Court on July 25 in support of Edith Windsor, who won her case before the U.S. District Court for the Southern District of New York based on that court's finding that the Defense of Marriage Act (DOMA) is unconstitutional as applied to her case. Windsor and Thea Spyer, both women, were legally married in Canada in 2007. Spyer died, leaving her estate to Windsor. Due to DOMA's definition of marriage as exclusively between one man and one woman, Spyer's estate was forced to pay estate taxes that would not have been assessed had her assets gone to a spouse. The district court awarded Windsor the return of $363,000 in estate taxes paid. She is seeking immediate Supreme Court review. New York City's amicus brief argues that DOMA undermines its non-discrimination laws and policies, forcing the city “to be the unwilling agent of federally required separate treatment of lawfully married employees.”

District Court Order Discovery in Foreign Divorce Matter

The United States Court of Appeals for the Second Circuit has upheld a district court's order of judicial assistance pertaining to discovery in a foreign divorce proceeding, finding that the wife seeking assistance had met the requirements of 28 U.S.C. ' 1782 and that the district court did not abuse its discretion in issuing the order. Gushlak v. Furman, 2012 U.S. App. LEXIS 13535 (2d Cir. 7/3/12).

A woman embroiled in divorce proceedings in the Cayman Islands petitioned the U.S. District Court for the Eastern District of New York, under 28 U.S.C. ' 1782, for orders of judicial assistance to obtain discovery in connection with that action. The district court granted those orders as to her husband and a third party. Both of the respondents appealed.

The petitioner's husband did not challenge the merits of the petition, but objected to not having been given the opportunity to argue the issue. The Second Circuit pointed out, however, that it is proper for district courts to grant ' 1782 applications ex parte; in such cases, due process is served by permitting the aggrieved litigant to move to quash the discovery request, in accordance with Federal Rule of Civil Procedure 45(c)(3). Here, the district court issued an order to show cause on May 9, 2011, and gave the husband until June 24 to file his opposition papers. However, the wife expressed concerns that the husband would leave the jurisdiction prior to that date, putting him out of reach of the court. The court therefore issued its order on June 23, directing the husband at that time to move to quash, if he so chose, by June 24, 2011. The appellate court found no error in this turn of events because, by requiring the husband to move to quash by June 24, “the district court was merely adhering to the date previously set for opposition.”

The other respondent appealed the grant of the petition on the merits, claiming the petition lacked sufficient factual support and that by granting it the district court went against the purpose and intent of ' 1782. In this regard, the appeals court noted that a district court is authorized to order a person to produce discovery in a foreign legal proceeding in accordance with ' 1782 if: 1) The person resides in the district of the district court to which the application is made; 2) The discovery is for use in the foreign legal proceeding; and 3) The application is made by a “foreign or international tribunal” or “any interested person.” 28 U.S.C. ' 1782. (The respondent did not dispute that the petition satisfied these requirements.) If these conditions are met, the court is next charged with exercising its discretion “in light of the twin aims of the statute: providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.” Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004). And, finally, the district court must consider the four factors outlined by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), which ask: 1) Whether the person from whom discovery is sought is within the jurisdictional reach of the foreign tribunal; 2) The nature of the foreign tribunal, the character of the proceedings underway there, and the receptivity of the foreign tribunal to U.S. federal-court judicial assistance; 3) Whether the ' 1782 petition is a ruse meant to circumvent American or foreign discovery rules; and 4) whether the discovery request is unduly intrusive or burdensome.

The court concluded that the district court did not abuse its discretion in granting the petition because it had “carefully weighed the Intel factors and appropriately limited the petitioner's broad discovery request to documentation relevant to assets under [the husband's] control.” The court was not moved by argument that the first Intel factor seemingly went against the advisability of granting the petition; namely, that the respondent ' a New York resident ' might not be within the jurisdictional reach of the courts of the Cayman Islands. The Second Circuit, citing to its own decision in Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012), concluded that the district court's finding that the first Intel factor weighed in favor of granting the requested discovery was not outside the range of permissible decisions.

Reunification Efforts Adequate, Though Lacking During Incarceration Period

The Appellate Division, Third Department, has upheld Family Court, Broome County's determination that, despite the fact that the Broome County Department of Social Services failed to make any efforts to promote reunification of a father and his children while the respondent father was in prison, the agency met its burden of showing that it had made adequate attempts to do so over time. Matter of James J. v. James K., 513366, NYLJ 1202563163535, at *1 (App. Div., 3rd, Decided July 12, 2012).

In September 2011, Family Court, Broome County, determined that a father of five's parental rights should be terminated, following a finding that he had neglected the children. The man had been put in prison in October 2005 and was still there in April 2009 when the children were removed from their mother's custody, with her consent, and placed with her relatives. When the father got out of prison, in December 2009, he met with the children's caseworker. They worked together for several months, and for six months the respondent visited with the children in his home and attempted to become more employable by taking classes. However, he was re-incarcerated in May 2010 after violating the conditions of his parole. As he was back in jail, Family Court found he could not take care of his children and terminated his parental rights. The father appealed.

The Third Department affirmed after finding that the social services agency established, by clear and convincing evidence, that it had done the one thing it was required to do: make “diligent efforts to encourage and strengthen the parental relationship.” Social Services Law ' 384-b (7)(a); see Matter of Jyashia RR. (John VV.), 92 AD3d 982, 983 (2012); Matter of Trestin T. (Shawn U.), 82 AD3d 1535, 1536 (2011), lv denied 17 NY3d 704 (2011). The court noted that the agency's responsibilities concerning “diligent efforts” to reunite parents with their children are different when a parent is incarcerated, due to the fact that counseling, treatment opportunities and visits cannot be accomplished as they could be with a non-incarcerated parent. Stated the court, “[A]n agency may fulfill its duty to make diligent efforts to encourage and strengthen the parental relationship of an incarcerated parent by, for example, apprising the incarcerated parent of the child's well-being, developing an appropriate service plan, investigating possible placement of the child with relatives suggested by the parent, responding to the parent's inquiries and facilitating telephone contact between the parent and child (see Matter of Marquise JJ. (Jamie KK.)), 91 AD3d 1137, 1138-1139 (2012), lv denied 19 NY3d 801 (2012); Matter of Hailey ZZ. (Ricky ZZ.), 85 AD3d 1265, 1266 (2011), affd ___ NY3d ___, 2012 NY Slip Op 04374 (2012); Matter of Trestin T. (Shawn U.), 82 AD3d at 1536; Matter of Kaiden AA. (John BB.), 81 AD3d 1209, 1209-1210 (2011)).” Here, although the social services agency did not make any attempts to work with the respondent during periods of his incarceration, they did take the proper steps while he was out of prison. Additionally, while incarcerated, the respondent father knew where his children were, so he could have telephoned them and could have sought visitation with them. He did not do these things, however. Taken together, these facts showed that the petitioning agency satisfied its statutory duty to make diligent efforts to facilitate the father's relationship with his children.

NYC Supports Same-Sex Litigant Fighting for Inheritance Rights

The City of New York submitted an amicus brief to the U.S. Supreme Court on July 25 in support of Edith Windsor, who won her case before the U.S. District Court for the Southern District of New York based on that court's finding that the Defense of Marriage Act (DOMA) is unconstitutional as applied to her case. Windsor and Thea Spyer, both women, were legally married in Canada in 2007. Spyer died, leaving her estate to Windsor. Due to DOMA's definition of marriage as exclusively between one man and one woman, Spyer's estate was forced to pay estate taxes that would not have been assessed had her assets gone to a spouse. The district court awarded Windsor the return of $363,000 in estate taxes paid. She is seeking immediate Supreme Court review. New York City's amicus brief argues that DOMA undermines its non-discrimination laws and policies, forcing the city “to be the unwilling agent of federally required separate treatment of lawfully married employees.”

District Court Order Discovery in Foreign Divorce Matter

The United States Court of Appeals for the Second Circuit has upheld a district court's order of judicial assistance pertaining to discovery in a foreign divorce proceeding, finding that the wife seeking assistance had met the requirements of 28 U.S.C. ' 1782 and that the district court did not abuse its discretion in issuing the order. Gushlak v. Furman, 2012 U.S. App. LEXIS 13535 (2d Cir. 7/3/12).

A woman embroiled in divorce proceedings in the Cayman Islands petitioned the U.S. District Court for the Eastern District of New York, under 28 U.S.C. ' 1782, for orders of judicial assistance to obtain discovery in connection with that action. The district court granted those orders as to her husband and a third party. Both of the respondents appealed.

The petitioner's husband did not challenge the merits of the petition, but objected to not having been given the opportunity to argue the issue. The Second Circuit pointed out, however, that it is proper for district courts to grant ' 1782 applications ex parte; in such cases, due process is served by permitting the aggrieved litigant to move to quash the discovery request, in accordance with Federal Rule of Civil Procedure 45(c)(3). Here, the district court issued an order to show cause on May 9, 2011, and gave the husband until June 24 to file his opposition papers. However, the wife expressed concerns that the husband would leave the jurisdiction prior to that date, putting him out of reach of the court. The court therefore issued its order on June 23, directing the husband at that time to move to quash, if he so chose, by June 24, 2011. The appellate court found no error in this turn of events because, by requiring the husband to move to quash by June 24, “the district court was merely adhering to the date previously set for opposition.”

The other respondent appealed the grant of the petition on the merits, claiming the petition lacked sufficient factual support and that by granting it the district court went against the purpose and intent of ' 1782. In this regard, the appeals court noted that a district court is authorized to order a person to produce discovery in a foreign legal proceeding in accordance with ' 1782 if: 1) The person resides in the district of the district court to which the application is made; 2) The discovery is for use in the foreign legal proceeding; and 3) The application is made by a “foreign or international tribunal” or “any interested person.” 28 U.S.C. ' 1782. (The respondent did not dispute that the petition satisfied these requirements.) If these conditions are met, the court is next charged with exercising its discretion “in light of the twin aims of the statute: providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.” Schmitz v. Bernstein Liebhard & Lifshitz, LLP , 376 F.3d 79 (2d Cir. 2004). And, finally, the district court must consider the four factors outlined by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. , 542 U.S. 241 (2004), which ask: 1) Whether the person from whom discovery is sought is within the jurisdictional reach of the foreign tribunal; 2) The nature of the foreign tribunal, the character of the proceedings underway there, and the receptivity of the foreign tribunal to U.S. federal-court judicial assistance; 3) Whether the ' 1782 petition is a ruse meant to circumvent American or foreign discovery rules; and 4) whether the discovery request is unduly intrusive or burdensome.

The court concluded that the district court did not abuse its discretion in granting the petition because it had “carefully weighed the Intel factors and appropriately limited the petitioner's broad discovery request to documentation relevant to assets under [the husband's] control.” The court was not moved by argument that the first Intel factor seemingly went against the advisability of granting the petition; namely, that the respondent ' a New York resident ' might not be within the jurisdictional reach of the courts of the Cayman Islands. The Second Circuit, citing to its own decision in Brandi-Dohrn v. IKB Deutsche Industriebank AG , 673 F.3d 76 (2d Cir. 2012), concluded that the district court's finding that the first Intel factor weighed in favor of granting the requested discovery was not outside the range of permissible decisions.