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For the second time in two weeks, an Albany appellate panel has awarded workers’ compensation benefits to a father who abandoned a son killed in the Sept. 11, 2001, attacks. The justices of the Appellate Division, 3rd Department, in an opinion written by Justice D. Bruce Crew III, were clearly bothered with the result of their rulings but found themselves constrained by the law. Under the law, when a deceased child without dependents is entitled to a workers’ compensation benefit, that entitlement passes to the surviving parents. Nothing in the law, according to the court, allows the Workers’ Compensation Board to exclude parents who had abandoned their minor offspring or bars neglectful parents from cashing in on the deaths of children they deserted. In light of the recent rulings, state Sen. Guy J. Velella, chairman of the Labor Committee, is sponsoring legislation that would deny the survivor benefits to parents who abandon their children. “Unfortunately, 9/11 brought out the best in some people and the worst in others,” the Bronx Republican said. “We reward those who tried to act in a heroic way, and I think we have to punish those who act in a despicable way. And people who turn their back on supporting their children and then seek the benefits of their unfortunate death are, in my mind, despicable people.” Velella’s bill, S6813, will come before the Labor Committee on Tuesday and is fast-tracked for passage in both houses. It has Assembly majority sponsorship by Assemblyman Stephen B. Kaufman, D-Bronx. “I think this will sail through without any problem at all,” said Velella, a senior legislator. “There is a deficiency in the law.” Both cases before the 3rd Department — Matter of Caldwell, 93704, which was decided April 1, and Matter of Crisman, 94227, which was decided Thursday — involved unmarried men who were working in the World Trade Center when terrorists struck on Sept. 11, 2001. Both men were abandoned at an early age by their fathers and both were raised by their mother. In both matters, the 3rd Department held, fathers who had forsaken their sons are entitled to half the Workers’ Compensation benefit, or $25,000. Thursday, Justice Crew said that Workers’ Compensation Law, unlike the Estates, Powers and Trusts Law, does not specifically preclude an abandoning parent from sharing in a deceased child’s death benefits. Since neither father in the cases decided this month had been formally stripped of his parental links, each qualified as a “surviving parent” and is entitled to the same benefit as the mother, Crew wrote. “Although we are not unsympathetic to the equitable concerns expressed by [the mother], the fact remains that absent a judicial determination severing [the father's] parental ties, he remains one of decedent’s surviving parents,” Crew said. The court said that if the Legislature intended to exclude neglectful parents, it would have done so. It also said it is “highly unlikely” the Legislature expected the judiciary to engage in a “qualitative assessment of a particular parent’s attributes in order to determine whether he or she is entitled to any, and if so, how much, of the death benefit.” Justice Crew was joined in the main Crisman opinion only by Justice Robert S. Rose, who wrote the majority opinion in Caldwell two weeks ago. Justice John A. Lahtinen, who dissented in Caldwell, wrote a one sentence concurrence Thursday in which he suggested he was joining justices Crew and Rose only because of the court’s decision in Caldwell. Presiding Justice Anthony V. Cardona and Justice Anthony J. Carpinello signed on with Lahtinen’s concurrence. The facts in the two cases are similar. In Caldwell, the father abandoned the child in infancy and essentially had nothing to do with him for the rest of his life, according to court records. The father fell $20,000 behind in support payments while the mother, occasionally resorting to welfare, put their two sons through college. Crisman differed somewhat in that the father had made some attempts to maintain a relationship with his son. Records show that Debra Crisman and Richard Shelp divorced in 1980, when their son, Daniel Hal Crisman, was 4 years old. Shelp paid $20 a week in support for about a year. At that time, Crisman relieved Shelp of the support obligation in return for his withdrawing his opposition to changing the child’s last name from Shelp to Crisman. Crisman, according to a Surrogate’s Court decision, moved out of state without providing the father with the new address or telephone number. Shelp made occasional efforts over the years to maintain a relationship with his son but claimed that Crisman’s persistent interference rendered that impossible. After the terror attacks, Crisman applied for the death benefit to be paid to her and Shelp. However, after Shelp demanded the entire $50,000, Crisman sought to exclude him from obtaining any death benefit at all. Last year, Manhattan Surrogate Eve Preminger disqualified Shelp as a distributee of his son’s estate. Preminger found that Shelp essentially abandoned his son and made no more than a half-hearted effort to maintain a relationship with Daniel. “There may be cases where one parent so impedes the other’s ability to support and visit their child that the other’s failure to do so despite diligent efforts will be excused, but no such facts are present here,” Preminger wrote in an opinion last year ( NYLJ, May 30, 2003). Preminger said that under the Estates, Powers and Trust Law, Shelp is precluded from sharing in the estate because he abandoned his son. EPTL � 41.4 specifically prohibits a parent from taking a distribute share of a child’s estate when the parent “has failed or refused to provide for, or has abandoned such child.” That decision did not cover the Workers’ Compensation benefit. As the 3rd Department observed, there is no similar provision in the Workers’ Compensation Law. PROPOSED LEGISLATION Velella’s legislation would add such a provision to the compensation statute so that it more closely mirrored the Estates, Powers and Trust Law. It would provide that “no death benefit shall be allowed to a surviving parent who has failed or refused to provide for, or has abandoned a child while such child is under the age of twenty-one years.” Jon Sullivan, spokesman for the Workers’ Compensation Board, said the agency is reviewing the matter. Appearing in Crisman were Frederick J. Meagher Jr. of Meagher & Meagher in Binghamton for the mother; Assistant Attorney General Howard Friedland for the Workers’ Compensation Board; and Leonard Feld of Jericho for Marsh & McLennan Companies Inc., the employer. Meagher said his client is considering an appeal and anticipates seeking leave from the 3rd Department. The attorneys in the Caldwell case, Timothy E. Delahunt and partner Gary Thompson of Gilbert, Heintz & Randolph in Washington also said they intend to appeal. The appellants are likely to argue that the 3rd Department rulings are contrary to public policy and inconsistent with the broad objective the Legislature adopted when it enacted EPTL � 41.4 — namely, that parents who ignore their parental responsibilities should not benefit financially from the deaths of their children.

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