In re Guardianship & Custody pursuant to Section 384-b of the Soc. Servs. Law, of SM

Citation2022 NY Slip Op 51157 (U)
Decision Date26 October 2022
Docket NumberB-01696/7/8/9-21
PartiesIn the Matter of the Commitment of Guardianship and Custody pursuant to Section 384-b of the Social Services Law, of SM, SM, SP, SP, and JP, Jr. Children Under Eighteen Years of Age Alleged to be Permanently Neglected by SP, (F/K/A SL), Respondent.
CourtNew York Family Court

2022 NY Slip Op 51157(U)

In the Matter of the Commitment of Guardianship and Custody pursuant to Section 384-b of the Social Services Law, of SM, SM, SP, SP, and JP, Jr. Children Under Eighteen Years of Age Alleged to be Permanently Neglected by SP, (F/K/A SL), Respondent.

No. B-01696/7/8/9-21

Family Court, Albany County

October 26, 2022


Unpublished Opinion

Carly Mousseau, Esq., attorney for Albany County Department for Children, Youth, and Families

Jessica Meigher, Esq., attorney for respondent

Kayla Leder, Esq., attorney for the P children

Richard Rivera, J.

The Albany County Department for Children Youth and Families (hereinafter "the Department") filed a petition to terminate the parental rights of the respondent Mother on May 7, 2021 pursuant to Section 384-b of the Social Services Law. The respondent filed a Motion to Dismiss the petition on June 24, 2022. The petitioner filed an affidavit in opposition on July 20, 2022 and the attorney for the P children filed an affirmation in opposition on or about July 15, 2022. The attorney for the M children did not submit a response to the motion.

In the petition, the Department asserts that the children have been in care in excess of thirty three months prior to the date of the filing of the petition, that the respondent has substantially and continuously or repeatedly failed to plan for the future of her children, and that the best interests of the children will be promoted by the commitment of guardianship and custody to the petitioner. The petitioner seeks a finding that the children are permanently neglected and an order terminating the parental rights of the respondent mother.

In the Motion to Dismiss, counsel for respondent posits that the permanency goal contained in the most recent permanency report dated February 18, 2022 [1] was stated to be "Return to Parent". Counsel for respondent further argues that the petitioner has not fulfilled their obligation to provide services to the petitioner.

In her opposition to the motion counsel for petitioner asserts that the respondent fails to set forth a basis for the dismissal of the petition and contends that the petitioner is required to file a petition to terminate parental rights if the children have been in foster care for 15 out of the most recent 22 months pursuant to the Adoption and Safe Families Act.

In her affirmation in opposition the attorney for the P children notes that the determination of a motion to dismiss requires that the allegations contained in the petition must be considered as true and that the assertions contained in the petition are factual issues to be determined at trial.

CONCLUSIONS OF LAW

The Motion to dismiss is granted as to the three younger children, S P, S P, and J P, Jr.

The Court recognizes that Social Services Law §384-b directs the filing of a petition to terminate the parental rights of a parent based upon permanent neglect when the children have been in care for 15 of the most recent 22 months. Social Services Law 384-b (7). However, the Court finds that it is improper to proceed to a hearing on a petition to terminate the parental rights of the respondent when the permanency goal is return to parent. See Matter of Julian P., 106 A.D.3d 1383, 1383 (3rd Dept. 2013); see also Matter of Joseph PP., 178 A.D.3d 1344, 1345-1356 (3rd Dept. 2019); see also Matter of...

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