In re Frank Q.
| Decision Date | 28 April 2022 |
| Docket Number | 532759 |
| Citation | 2022 NY Slip Op 02843 |
| Parties | In the Matter of Frank Q., Alleged to be a Permanently Neglected Child. Delaware County Department of Social Services, Appellant; Laurie R., Respondent. |
| Court | New York Supreme Court |
Calendar Date: March 23, 2022
Amy Merklen, County Attorney, Delhi (Erin J. Neale of counsel) for appellant.
Teresa C. Mulliken, Harpersfield, for respondent.
Christine E. Nicolella, Delanson, attorney for the child.
Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.
Appeal from an amended order of the Family Court of Delaware County (Rosa, J.), entered January 21, 2021, which dismissed petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate the subject child to be permanently neglected.
Respondent is the mother of the subject child (born in 2018). Several months after the child's birth, petitioner commenced a Family Ct Act article 10 proceeding alleging that the child was neglected by respondent and the child's father. Thereafter, the parties consented [1] to a temporary order of removal of the child and placement with Kaline S., a suitable person known to them. [2] By order of Family Court, a permanency hearing was scheduled for June 2019 "if the child remains in foster care or is directly placed pursuant to [Family Ct Act §§] 1017 or 1055." Thereafter, respondent consented to a finding of neglect and Family Court issued an order of fact-finding and disposition in May 2019, which ordered, pursuant to Family Ct Act § 1055, that the child is "directly placed" with Kaline S.
In December 2019, while the child was still in a direct placement with Kaline S., petitioner commenced this permanent neglect proceeding seeking to terminate respondent's parental rights, alleging that the child had been in the "care of an authorized agency" for a continuous one-year period. Following a five-day fact-finding hearing, [3] although Family Court found "overwhelming evidence" of respondent's neglect, it dismissed the petition on the ground that the child had not been "in the care of an authorized agency for a period of at least one year prior to [petitioner] filing a permanent neglect petition." Specifically, Family Court reasoned that, based on the language in Family Ct Act § 1017 (2) (a), there was a clear distinction between a "direct release to a suitable person" like Kaline S. and a "placement with an authorized agency" like petitioner. Although the word "care" is not defined by statute, Family Court held that petitioner's actions in providing services for the benefit of the child did not rise to that level, such as to "bathe, feed, cloth, educate or do any of the things required to care for the child." Family Court distinguished this case from Matter of Dale P. (84 N.Y.2d 72 [1994]), and noted that the legislative intent of Social Services Law § 384-b was to prevent children from languishing in the foster care system, and it was undisputed that the child had never been in foster care. Petitioner appeals.
During the pendency of this appeal, petitioner commenced and prevailed in an abandonment proceeding that resulted in the termination of respondent's parental rights. Respondent has appealed such order but has yet to perfect same. Although petitioner has already received its requested relief, we find, under the circumstances of this case, that petitioner's appeal - directed at the scope and authority of Family Court to find a child in a direct placement to be under the "care of an authorized agency" within the context of a permanent neglect proceeding - "raise[s] a substantial and novel issue that is likely to recur, yet evade review, and that, therefore, the exception to the mootness doctrine applies" (Matter of Carmine GG. [Christopher HH.], 174 A.D.3d 999, 1000 [2019]; see Matter of M.B., 6 N.Y.3d 437, 447 [2006]; Matter of Dixon v County of Albany, 192 A.D.3d 1428, 1429 [2021]).
Turning to the merits, we find Family Court's interpretation of Social Services Law § 384-b too narrow and calling for a result that is "unnecessarily circuitous" (Matter of Dale P., 84 N.Y.2d at 79; see Matter of Patricia HH. v Laura II., 200 A.D.2d 115, 117-118 [1994]), and ultimately contrary to the stated legislative intent (see generally Social Services Law § 384-b [1] [a]-[b]). A proceeding for termination of parental rights may be originated by an "authorized agency" such as petitioner (Social Services Law § 384-b [3] [b]), seeking an order for guardianship and custody when a child is a permanently neglected child (see Social Services Law § 384-b [4] [d]). A "permanently neglected child" is defined as "a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or [15] out of the most recent [22] months... substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child" (Social Services Law § 384-b [7] [a]).
Regarding the phrase "care of an authorized agency," courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued in May 2019 pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384-b. In Matter of Dale P. (84 N.Y.2d at 75-76, 78-79), the Court of Appeals rejected the argument that a child had to be formally placed in foster care, where a finding of abandonment had been made and a child's care had been with a suitable person pursuant to Family Ct Act § 1055. Similarly, this Court has rejected the "narrow definitional approach" adopted by Family Court that a child who was directly placed with a suitable person was not within the "care of an authorized agency" (Matter of Patricia HH. v Laura II., 200 A.D.3d at 117-120). Other Departments of the Appellate Division have also embraced the validity of a direct placement to satisfy Social Services Law § 384-b ]).
Similarly here, we agree that the child has been in the care of petitioner to satisfy the statute. Petitioner evaluated Kaline S., performing a background check and interview, before ultimately approving her as a suitable person to care for the child. Although Kaline S. declined a foster care subsidy, she agreed to comply with monitoring and the requests of petitioner, and she further submitted to Family Court's jurisdiction, consenting to "cooperate with respect to making the child available for court-ordered visitation with respondent[], siblings and others, appointments with the child's attorneys and clinicians and other individuals or programs providing services to the child[], [and] visits (including home visits) by the child protective agency." The record reflects close involvement and coordination between petitioner and Kaline S. during the pendency of this matter. Accordingly, we find that, in further consideration of Social Services Law § 384-b (1) (b), which was enacted "to provide procedures not only assuring that the rights of the birth parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption," Family Court erred in dismissing the petition on...
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