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Tuesday, February 28, 2012

New NY Strategy: Wait Unit Judge Retires to Criticize

Judge Criticized for Issuing Contradictory Rulings
The New York Law Journal by John Caher - February 28, 2012

ALBANY, NY - A recently retired Family Court judge's practice of ordering "inherently contradictory" child placements calling for both permanent adoption and reunification with the family has resulted in a rebuke from a state appeals panel.  The Appellate Division, Third Department, said in a decision Feb. 16 that St. Lawrence County Family Court Judge Barbara R. Potter, who retired at the end of 2011, has ordered concurrent permanency goals at least three times since 2009.  "Petitioner cannot reasonably work toward the goal of placing the child for adoption—which, pursuant to the statute, requires petitioner to file a petition to terminate respondent's parental rights—while at the same time trying to return the child to his parents," Judge William E. McCarthy wrote for the unanimous court in Matter of Dakota F., 511718.  In the latest case, Dakota F., a neglected child born in 2003, was removed to the custody of St. Lawrence County Department of Social Services with the goal of eventually returning her to her mother. However, in September 2009, the social services agency sought to change the recommendation to placement for adoption.  After a hearing, and without consulting with the child, Judge Potter issued an order calling for a "concurrent plan of return to parent and placement for adoption."  The Third Department held that Judge Potter "erred by not consulting with the child in any manner, or even eliciting an opinion of the child's wishes from the attorney for the child." But the panel said there was no need to determine if that error required reversal, since reversal "is necessary due to a more fundamental error"—the contradictory order.  Justice McCarthy observed that under Family Court Act Article 10-A, judges have a number of alternatives in ordering permanency goals, ranging from return to the parent to placement with a relative to placement for adoption. But the judge must select one. He indicated that Judge Potter had a tendency to choose more than one, referring to Matter of A.D., 27 Misc 3d 1229 (2010), and Matter of Andrea D., 25 Misc 3d 503 (2009).  "Because the court did not consult with the child and imposed concurrent—and inherently contradictory—permanency goals rather than a single permanency goal, we must remit for further proceedings," Justice McCarthy wrote.  Acting Presiding Justice Thomas E. Mercure (See Profile) and Justices Robert S. Rose, Edward O. Spain and Bernard J. Malone Jr. also were on the panel.  John A. Cirando of Syracuse represented the mother seeking custody. "Hopefully, this decision will clarify the procedures going forward and give children a good chance to be reunited with their parents," Mr. Cirando said.  Laurie L. Paro of Canton appeared for the Department of Social Services and Aaron Turetsky of Keeseville argued for the child.  Neither Ms. Paro nor Mr. Turetsky were available for comment. Former Judge Potter also was unavailable.  John Caher can be contacted at jcaher@alm.com.

19 comments:

Anonymous said...

Tembeckjian will probably now move to remove him from the bench now that he's no longer there.

??? said...

And the pension???

After a removal "for cause" what becomes of it??

Do they get to keep, what in times of bad behavior, they did not earn??

Anonymous said...

The judge was just maximizing the work of other government employees. The DA needs charge the judge with Official Misconduct, which, of course, in NYS only a misdemeanor. It's only a misdemeanor in NY State, because, otherwise, the State would be funding extended stays for its judges in public facilities. But misdemeanor conviction will not stay the pension.

Anonymous said...

I find it hard to believe that this judge's errors only recently came to the attention of his superiors. What the hell is going on? It all seems like one big cover up for political friends.

Anonymous said...

Aren't we noticing a pattern here?

Why is it that the only judges that are ever charged with wrongdoing or found to not be competent, are those that are retiring?

(They don't actually 'retire', they become 'certificated' and continue their dastardly deeds.)

Interesting said...

"But misdemeanor conviction will not stay the pension."

What a coincidence.

A Violation of Judiciary Law 487 is a misdemeanor..

An attorney or counselor who:

1. Is guilty of any deceit or collusion, or consents to any
deceit or collusion, with intent to deceive the court or any party; or,

2. Wilfully delays his client's suit with a view to his own
gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,

Is guilty of a misdemeanor, and in addition to the punishment
prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

http://blog.bluestonelawfirm.com/legal-malpractice-news-judiciary-law-487-in-the-second-circuit-and-the-court-of-appeals.html

but... concealing a felony is a felony.

18 U.S.C.A. § 4 Misprision of Felony Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or
military authority under the United States, is guilty of the federal crime of misprision of
felony.

Who Who said...

Hey..

does that mean that a local District Attorney has to report a felony cognizable by a court of the United States?

Are they "whoever(s)" too?

Anonymous said...

At least they didn't wait until he died to hold him accountable, and I use the term "accountable" very lightly.

HowEmbarrassing.. said...

To my certificated Judge in Suffolk County..

Did you know that there are jurisdictional facts in Complaint?

or is this, news to you?..

It shouldn't be.. As you can see, it's very old..

The complaint must show these necessary jurisdictional facts; it must also specify particularly the nature and circumstances of the defendant's misconduct, with time and place of each act complained of (Court Eule 280). Without these specifications the complaint is insufficient (Otton v. Otton, 196 App. Div. 403).

Personally, I am opposed to telling a judge, how to be a judge..

It is Judge's responsibility, not mine.

But you (Kent) aren't fit to polish bench screws, let alone put on a robe!!

Anonymous said...

The term "jurisdiction" is malleable.

Just like the laws and the constitution. It means whatever they want, or can be ignored.

malleablebutnotgumbie said...

Civil Litigation in New York, 5th Ed.
Oscar G. Chase and Robert A. Barker

Permission is granted to distribute copies free of charge to students in classes using the casebook.

Thus, “ non-prejudicial defects in commencement, such as late payment of the fee because of a bounced check (which is subsequently cured) or the failure to purchase a second index number under the facts of Harris would be excusable deficiencies.” 2007 Rep. of Advisory Comm. on Civ. Prac. to the Chief Admin. Judge of the Courts of the State of New York reprinted in 2007 N.Y. Sess. Laws 2218 (McKinney).
The amendment does not rescue all cases in which mistakes are made in filing, however. For example, the legislature did not overrule Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 460 N.E.2d 1316 (1984) supra at 354. Rep. of Advisory Comm. on Civ. Prac. at 2218. Parker held that the filing of a bare summons (without a complaint and which failed to recite the nature of the relief sought) was a nullity.

It has been held that filing with the wrong clerk remains a fatal flaw in commencement. Thus, in Miller v. Waters, 51 A.D.3d 113, 853 N.Y.S.2d 183, 2008 N.Y.App. Div LEXIS 1630 (3d Dep‟t
14
2008) the petitioner had improperly filed with the office of the Administrative Clerk of the Supreme and County Courts, instead of with the local County Clerk, and the Third Department held that this filing defect deprived the court of subject matter jurisdiction. The Court therefore had no power to excuse the defect. The action was dismissed under the rule of Mendon Ponds, despite the applicability of the 2007 amendment to CPLR 2001. A 2007 amendment to CPLR 105 further clarifies that “clerk” means the clerk of the county.

DifferentCause..Like FRaud?? said...

"To constitute a pending action, it must appear that a pleading was served, which sought to obtain relief based upon the same facts as is the action against which the plea is interposed. The mere service of the summons, although it was intended at the time to enforce the same rights upon the same facts, is insufficient to support the plea, as the party might, in his declaration, count upon an entirely different cause of action." (Hirsh v. Manhattan Ry. Co., 84 App. Div. 374, 377-378; Stevenson v. Diamond Fuel Co., 198 App. Div. 345.) It was pointed out in Hirsh v. Manhattan Ry. Co. (supra, p. 377), that "it is not permissible to show by oral proof what an action is for if the summons only was served." (See, also, CPLR 3217, subd. [a], par. 1.)

MightbewhytheMajorityinParkerheld said...

First, the well-established rule under pre-chapter 216 law is that an action commenced merely by service of a summons with notice is not a" prior action pending"; service of a complaint is required
- in Kevorkian v. Harrington, 1993

Anonymous said...

This is all a part of a vast business

BankOnIt said...

Judge Kent corrected Besen v. Besen but he didn't correct my case.

When I say that the receiver LOUIS C. ENGLAND was unlawfully appointed and stole my house..

You can take it to the Bank..

Provided Banks are still worth something...

CJC said...

So how does the Commission on Judicial Conduct ignore a gross violation of rights which can easily be discerned from the "case record".

Seriously, what do they investigate if not the record?

SoEasytoFollow said...

No Complaint..

No subject matter jurisdiction..

Recusal for bias and prejudice..

No Remittal of Disqualification/No Waiver...

No Judge..


Take your pick...

The RECORD ON THIS ONE..

Isn't good...

Anonymous said...

as i personally have gone through an experience with the family court system in st. Lawrence co., i can assure you, that former judge potter isn't the only one that's corrupt there. it extends to the dept. of social services, the law guardians, and the court appointed attorney's. it is one really messed up system, and there is no way a person, or child, has a shot at justice. and they will drag a case out for as long as it takes to get what they want. my advice, avoid that county like the plague.

Jimmy said...

Salvatore and Arturo Frieri Gallo both have been using the courts to scam people and committ crimes paying off the courts system.

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
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