In re A.B.

• Decision Date: 08 April 2022
• Docket Number: Docket No. NN-XXX-XX
• Citation: 74 Misc.3d 1229 (A),164 N.Y.S.3d 807 (Table)
• Parties: In the MATTER OF A.B. A Child under the Age of Eighteen Years, Alleged to be a Neglected Child BY B.F., Respondent.
• Court: New York County Court

74 Misc.3d 1229 (A)

164 N.Y.S.3d 807 (Table)

In the MATTER OF A.B. A Child under the Age of Eighteen Years, Alleged to be a Neglected Child BY B.F., Respondent.

Docket No. NN-XXX-XX

Family Court, New York, Oswego County.

Decided on April 8, 2022

Audrey Flynn Esq for parent E.B.

Anastasia Gagas, Attorney for Child

Taryn Perrone, Attorney for Department of Social Services

Jean Brown Esq. Attorney for Respondent B.F.

Thomas Benedetto, J.

The above-entitled matter is before this court pursuant to a Motion by the Oswego County Department of Social Services (hereinafter know as DSS) under FCA § 1061 to modify a prior dispositional order of this court, signed November 18, 2021 and entered on December 14, 2021. The respondent in the above case, B.F., had admitted neglect of the infant child, A.B., date of birth xx/xx/ 2018. The extent of her admission resulted in a finding of neglect was that "she has substance abuse issues that impair her ability to provide adequate care, guardianship and supervision to the subject child, thereby placing the child at risk of harm. The physical, mental and emotional condition of the child was impaired or in imminent danger of becoming impaired constituting child neglect". The infant child was originally released to her father, E. B. pursuant to a Temporary Order of Removal signed by the court April 30, 2021. The Order of Disposition as to respondent B. F. signed November 18, 2021 provided for several decretal paragraphs of actions which Ms. B. F. had to engage in and/or providers she had to contact and follow their directives until successfully discharged therefrom. The Order signed November 18, 2021 continued the release of the child to the non-respondent parent, E. B., pursuant to FCA § 1057. The child has been with Mr. E.B. since the inception of these proceedings up to and including the present time. The said order further provided that Ms. B.F. would be under the supervision of DSS pursuant to FCA Section 1057.

DSS filed an Amended Notice of Motion, dated January 7, 2022 with the court on said date wherein they moved pursuant to FCA § 1061 to modify the aforesaid dispositional order dated November 18, 2021. The manner in which they sought to modify same was to modify it from a release to a supervision order. The department sought to vacate the release to the non-respondent parent, E. B., of the infant child and return the child to respondent B.F. with various orders for supervision on the respondent for a period of six (6) months. The Notice of Motion was originally returnable March 1, 2022. The Amended Notice of Motion provided that any affidavits and oppositions thereto had to be filed with the court by February 21, 2022. DSS had not served the Notice of Motion upon E.B., the non-respondent parent. Further, Mr. E.B. advised that he opposed the motion in any event and requested the assignment of counsel on his behalf. Therefore, the Court granted his request for counsel and subsequently adjourned the motion to March 22, 2022. On the return date, DSS appeared with counsel, Respondent, B. F., appeared with counsel, Anastasia Gagas, Esq., AFC for the child appeared, as well as the non-respondent parent, E.B., and his counsel, Audrey Flynn, Esq.¹ The court heard further oral argument both for and against the motion. All counsel were granted leave to submit law. The court received a memorandum of law with attached case law from Audrey Flynn Esq., attorney for the nonrespondent father. The memo opposed the modification of the Order of fact finding and placement from the appearance on November 18, 2021 signed December 13, 2021 and entered December 14, 2021 which continued the release of the child to the father. Further the memo suggests the court should hold a joint hearing on the proposed modification of the aforesaid order and Mr. E. B.’s Article 6 FCA modification of custody petition before granting DSS's pending motion. The memo concedes that the court has the authority to grant DSS's motion over the objection of the nonrespondent father.

DSS makes the instant motion to modify the prior dispositional order alleging "good cause" exists to terminate the release of the child in favor of Mr. E. B., to restore physical custody of the child to Ms. F., and otherwise continue and an order of supervision for six (6) months. FCA § 1061 provides that an order of the court may be modified for "good cause" shown. Prior to the entry of the Temporary Order of Removal entered by this court in April, 2021, and the release of the child to E. B., there had been in existence an Order of Custody signed September 26, 2019 and entered September 30, 2019, wherein Ms. B.F. had been granted physical custody of the infant child, A. B. The subsequent Temporary Order of Removal and the later Dispositional Order of November 18, 2021 superseded the grant of physical custody as set forth in the aforesaid Article 6 order.

The basis of "good cause" alleged by DSS such that the dispositional order should be granted and the release to Mr. E.B. vacated and modified and the infant...