In re Elizabeth C., 2016–03794

• Decision Date: 29 November 2017
• Docket Number: N–5736–16,N–5739–16,N–5737–16,N–5738–16,Docket Nos. N–5734–16,2016–03794
• Citation: 156 A.D.3d 193,66 N.Y.S.3d 300
• Parties: In the MATTER OF ELIZABETH C. (Anonymous). Administration for Children's Services, respondent; Omar C. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Alexander C. (Anonymous). Administration for Children's Services, respondent; Omar C. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Joana C. (Anonymous). Administration for Children's Services, respondent; Omar C. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Jesus C. (Anonymous). Administration for Children's Services, respondent; Omar C. (Anonymous), appellant. (Proceeding No. 4) In the Matter of Oscar C. (Anonymous). Administration for Children's Services, respondent; Omar C. (Anonymous), appellant. (Proceeding No. 5)
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 193

66 N.Y.S.3d 300

In the MATTER OF ELIZABETH C. (Anonymous).

Administration for Children's Services, respondent;

Omar C. (Anonymous), appellant. (Proceeding No. 1)

In the Matter of Alexander C. (Anonymous).

Administration for Children's Services, respondent;

Omar C. (Anonymous), appellant. (Proceeding No. 2)

In the Matter of Joana C. (Anonymous).

Administration for Children's Services, respondent;

Omar C. (Anonymous), appellant. (Proceeding No. 3)

In the Matter of Jesus C. (Anonymous).

Administration for Children's Services, respondent;

Omar C. (Anonymous), appellant. (Proceeding No. 4)

In the Matter of Oscar C. (Anonymous).

Administration for Children's Services, respondent;

Omar C. (Anonymous), appellant. (Proceeding No. 5)

2016–03794

Docket Nos. N–5734–16

N–5736–16

N–5737–16

N–5738–16

N–5739–16

Supreme Court, Appellate Division, Second Department, New York.

Argued March 10, 2017

November 29, 2017

Center for Family Representation, New York, N.Y. (Michele Cortese and Latham & Watkins LLP [Tracey Orick, pro hac vice, and Scott D. Gallisdorfer, pro hac vice], of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Scott Shorr, Elizabeth S. Natrella, and John Moore of counsel), for respondent.

Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Gary Solomon ), attorney for the children.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, SANDRA L. SGROI, JJ.

OPINION & ORDER

MASTRO, J.P.

The present matter requires us to determine whether a parent in abuse and/or neglect proceedings brought pursuant to Family Court Act article 10, who has been excluded from the household in which the children reside by an order of protection, is entitled to a prompt hearing in accordance with Family Court Act § 1028 to challenge the propriety and necessity of the exclusion. Based upon the statutory framework of article 10, and mindful of the weighty due process considerations implicated by such an exclusion, we conclude that the parent is entitled to a prompt hearing.

Factual Background

The appellant, Omar C. (hereinafter the father), is the father of the five children who are the subjects of these proceedings: Elizabeth C., Alexander C., Joana C., Jesus C., and Oscar C., all of whom were born between 2004 and 2014. Prior to the filing of the initial petitions in this matter, he lived with the children and their mother at a residence in Queens. On March 15, 2016, the petitioner, Administration for Children's Services (hereinafter ACS), filed five separate petitions pursuant to Family Court Act article 10 against the father, alleging that he had sexually abused his 14 year-old niece, Erika C., on an unspecified date during the preceding November, and that the children therefore were derivatively abused and/or neglected. On the same day that the petitions were filed, the Family Court issued a "full stay away" temporary order of protection which expressly excluded the father from the family home. Although the temporary order of protection recited that the father was present in court and was advised of the contents of the order, no hearing was conducted prior to its issuance. The order further recited that it would remain in force until and including the following day. The next morning, March 16, 2016, the court issued a second temporary order of protection, identical in all relevant respects to the first, with an expiration date of August 4, 2016. Again, no hearing preceded the issuance of this temporary order of protection excluding the father from the residence and from contact with the children. However, it appears that the matter was set down for a hearing pursuant to Family Court Act § 1028 to be held on March 18, 2016, for the purpose of assessing the propriety of the exclusion of the father from the family home.

Family Court Act § 1028 mandates, with certain exceptions not relevant here, that upon the request of a parent for a hearing to determine whether a child who has been temporarily removed should be returned, or whether the removal should continue based on an imminent risk to the child's life or health, a hearing shall be held within three court days of the request.

The hearing commenced and limited testimony was taken on March 18, before the Family Court adjourned the matter for a continued hearing on March 21. However, on that day, ACS filed new abuse and/or neglect petitions against the father based on the same allegations, and withdrew the previously filed petitions of March 15. In connection therewith, the court issued a third temporary order of protection on March 22, 2016. That order, which was issued ex parte and had an expiration date of May 11, 2016, again excluded the father from contact with the children and from the residence where the children continued to live with their mother. On the same date, the court orally advised counsel on the record that a hearing pursuant to either Family Court Act § 1027 or § 1028 was "inappropriate" because "I do not consider this a removal ... and the standard to be applied is not imminent risk." The father's counsel indicated that he would make a formal written motion for a section 1028 hearing, and the matter was adjourned to March 29.

On the morning of March 29, the Family Court released the children to the mother on the condition that she abide by the previously issued order of protection excluding the father from the home. The court also issued another order of protection, to expire after a period of one year, which excluded the father from the home but authorized his agency-supervised visitation with the children. Additionally, the court signed an order on behalf of the father directing the parties to show cause why the children should not be paroled to their parents and why the father should not be permitted to resume residency in the family home. The order to show cause sought a hearing pursuant to Family Court Act § 1028 to determine the merits of the father's motion. In support, the father took the position that his loss of the physical care and custody of the children incidental to his exclusion from the family home was the functional equivalent of a removal of the children, thereby entitling him to the heightened due process afforded by a section 1028 hearing.

The mother and the attorney for the children supported the father's motion, while ACS opposed it on the ground that the children remained at imminent risk of harm in view of the allegations against the father. ACS took the position that a hearing pursuant to Family Court Act § 1028 was unwarranted because the children had not been removed from the family home, and their legal custody had not been transferred to another party. ACS reasoned that, since the father had merely been excluded from the home, his remedy was to seek a hearing pursuant to Family Court Act § 1061 to modify the order of protection. Such hearings are discretionary in nature and need not be held within any particular time frame.

On April 4, 2016, the Family Court orally denied the father's motion on the record, with a written decision to follow. The court further indicated that it would treat the motion as an application for a Family Court Act § 1061 modification hearing. On April 22, 2016, the Family Court issued its written decision and order denying the father's motion for a section 1028 hearing on the ground that such hearings are only appropriate where a child or children have been physically removed from their residence, a circumstance which was not present in this case. The father appeals from this order, raising statutory and constitutional arguments for our consideration.

By way of additional background, we note that a Family Court Act § 1061 hearing to modify the order of protection commenced on April 20, 2016, and culminated in an order dated June 13, 2016, denying, pending further proceedings, a modification of the order of protection.

Thereafter, during the pendency of this appeal, this Court was advised that the Family Court proceedings had been resolved as a result of a seven-month adjournment in contemplation of dismissal that had been reached in the matter. Pursuant to that disposition, the order of protection excluding the father from the family residence was no longer in effect, and the father had returned to the home in February 2017. Accordingly, the additional question of whether the instant appeal has been rendered academic is now presented.

Analysis

Mootness

Since the father has now returned to the family household and the order of protection excluding him therefrom is no longer in effect, the issue of whether this appeal is academic—and, if so, whether an exception to the mootness doctrine applies—is squarely before us. At the oral argument of this appeal, the father and ACS took the position that this matter has indeed been rendered academic, but that the circumstances of the case warrant application of the mootness exception so that the merits may be decided. Conversely, the attorney for the children insisted that the appeal is not academic at all, owing to the enduring consequences that flow from the abuse allegations made against the father. We find the position of the father and ACS to be persuasive.

"It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal [citation omitted]. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary" ( Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [citations omitted]; see Matter of Kirkland v. Annucci, 150 A.D.3d 736, 737–738, 54 N.Y.S.3d 40 ; Matter of Powell v. Mount St. Mary Coll., 142 A.D.3d 1082,...