Sunday, September 5, 2010
State of New York Court of Appeals Chief Judge Jonathan Lippman’s decision to deny Appellant’s motion for permission for leave to appeal to the court of appeals endangers parental rights.
The decision leaves in place an illegal and egregious determination of educational neglect by Niagara County Department of Social Services and New York State Office of Children and Family Services. It encourages continued abuse of power, giving ‘carte blanche’ to school authorities and social services agencies who seek to deprive parents of their right to protect their children against hate and violence at school.
New York State Court of Appeals Chief Judge Honorable Jonathan Lippman denied Appellant’s Motion for Permission for Leave to Appeal to the Court of Appeals at a session of the Court, held at Court of Appeals Hall in the City of Albany on the second day of September, 2010. The motion for permission for leave to appeal was pursued after the Supreme Court of the State of New York, Fourth Department, in its decision In the Matter of Rhonda Mangus against Niagara County Department of Social Services and New York State Office of Children and Family Services, denied this writer a Motion for Re-Argument or Leave to Appeal to the Court of Appeals earlier this year.
Chief Judge Lippman’s decision to deny the motion for leave to appeal to the court of appeals presents a classic example of distorted conception of the facts and of the law upon all papers submitted thereon.
Assistant Solicitor General Zainab Chaudhry, of Counsel for Andrew M. Cuomo, current Attorney General of the State of New York, admits in her Memorandum In Opposition To Motion For Leave To Appeal (p 3) that, “Motions seeking such error correction rarely warrant leave by this Court.” Chaudhry goes on to say, “Further, the Appellate Division properly applied those legal principles to the facts of this case and found that substantial evidence in the record supported OCFS’ determination.”
However, a fair contextual reading of this case compels a contrary conclusion. The facts of this case show that substantial evidence in the record did not support Niagara County Department of Social Services caseworker Robin Stroud’s determination, nor NYS OCFS’ final determination. Respondents, in fact, failed to prove that Appellant committed maltreatment under Social Services Law Section 422 and 97-LCM-58. Appellant’s son was never truant or unlawfully detained from school, the two categories of unexcused absences in New York State Education Law, and Appellant’s son was under the care of medical professionals who did not release their demand for home-instruction.
The apparent rationale of the Courts is that Respondents’ need not comply with Social Services Law Section 422, 97-LCM-58, or due process rights when addressing matters of alleged child neglect. It presents clear error and plain injustice that, again, will encourage continued abuse of power, and give ‘carte blanche’ to school authorities and social services agencies who seek to deprive parents of their right to protect their children against hate and violence at school.
Further, Judge Lippman’s decision seriously undermines the efficacy of the laws in any related, pending or future litigation, the rights of parents to the care, education, and upbringing of their children, the authority of medical professional opinion and/or plan of care for its pediatric patents, and parent rights to due process before the law.
Ref. Court of Appeals Motion No. 2010-674, Appellate Division Docket No.: TP09-01245, Niagara County Index No. 136504
Author’s Note: I am not a lawyer and nothing contained herein or elsewhere on this website should be construed as legal advice.
It should also be noted well here that the Appellate Division, Fourth Department Decision related to whether or not Appellant’s due process rights were violated is also grossly misrepresented in its entirety. The question before the Court was:
Whether the Administrative Law Judge violated the Appellant’s due process rights when [she] failed to advise and obtain, on the record, an intelligent or understanding waiver of the Appellant right to be afforded the opportunity of Counsel?
Clearly, the question has nothing to do with Appellant seeking assigned counsel.