In the Matter of Lucinda R. (anonymous).Admin. For Children's Serv.

• Decision Date: 17 May 2011
• Citation: 2011 N.Y. Slip Op. 04256,85 A.D.3d 78,924 N.Y.S.2d 403
• Parties: In the Matter of LUCINDA R. (Anonymous).Administration for Children's Services, respondent,Tabitha L. (Anonymous), appellant. (Proceeding No. 1).In the Matter of Lillian R. (Anonymous).Administration for Children's Services, respondent;Tabitha L. (Anonymous), appellant. (Proceeding No. 2).In the Matter of Lanette Rachel R. (Anonymous).Administration for Children's Services, respondent;Tabitha L. (Anonymous), appellant. (Proceeding No. 3).
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 78

924 N.Y.S.2d 403

2011 N.Y. Slip Op. 04256

In the Matter of LUCINDA R. (Anonymous).Administration for Children's Services, respondent,Tabitha L. (Anonymous), appellant. (Proceeding No. 1).In the Matter of Lillian R. (Anonymous).Administration for Children's Services, respondent;Tabitha L. (Anonymous), appellant. (Proceeding No. 2).In the Matter of Lanette Rachel R. (Anonymous).Administration for Children's Services, respondent;Tabitha L. (Anonymous), appellant. (Proceeding No. 3).

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

May 17, 2011.

Steven P. Forbes, Jamaica, N.Y., for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Elizabeth S. Natrella of counsel), for respondent.Steven Banks, New York, N.Y. (Tamara A. Steckler and Louise Feld of counsel), attorney for the children.MARK C. DILLON, J.P., THOMAS A. DICKERSON, RANDALL T. ENG and ARIEL E. BELEN, JJ.BELEN, J.

The appellant, Tabitha L. (hereinafter the mother), is the mother of the three children who are the subjects of these neglect proceedings. In the early morning hours of February 4, 2009, the children, then aged six years, four years, and nine months, respectively, were found by a police officer wandering the streets alone. The next day, February 5th, the New York City Administration for Children's Services (hereinafter ACS) filed petitions in the Family Court, Queens County, alleging that the mother neglected her children as a result of this incident. The Family Court issued an order of protection prohibiting all contact between the mother and her children, with the exception of ACS-supervised visitation. The children were then paroled to the care of their nonrespondent father and his mother (the children's paternal grandmother), with whom the father lived. On June 2, 2009, the mother orally requested a hearing pursuant to Family Court Act § 1028 ¹ for the return of her children. Ultimately, the Family Court denied the mother's request for a Family Court Act § 1028 hearing on the ground that a hearing was not required because the children were paroled to the father's care. Instead, the Family Court granted an application of the attorney for the children for a hearing pursuant to Family Court Act § 1061 to modify the order of protection.² While a Family Court Act § 1028 hearing must be held within three court days after the application, there is no requirement that a Family Court Act § 1061 hearing be held within any period of time. The Family Court Act § 1061 hearing was not held for nearly 1 1/2 years, during which time the children remained in their father's care. The Family Court Act § 1061 hearing was eventually scheduled for the same day that oral argument on the instant appeal was scheduled before this Court. Several months later, while the determination of this appeal was pending, by order dated October 20, 2010, the Family Court returned the children to the mother.

The question presented on this appeal is whether a Family Court Act § 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. Although the Family Court returned the children to the mother while the determination of this appeal was pending, we find that this case nevertheless presents a justiciable controversy, and we reverse the order denying the mother's application for a Family Court Act § 1028 hearing.

On February 5, 2009, after the subject children were found wandering the streets in the early morning hours of February 4, 2009, ACS filed petitions pursuant to Family Court Act § 1024 to remove the children from the mother's custody and place them in the custody of their father and paternal grandmother. ³ The petitions alleged that on February 4, 2009, at 3:30 A.M., ACS removed the children from the mother's custody on an emergency basis because the parents were unavailable, and that the circumstances of removal were such that a risk existed as to the children's life, health, or safety. Finally, ACS asserted that it had insufficient time to obtain a court order pursuant to Family Court Act § 1022, since the removal occurred outside of the court's business hours.

At a hearing held on February 5, 2009, and upon the request of ACS, the Family Court paroled the children to the nonrespondent father and paternal grandmother, who lived together. The Family Court also entered a temporary order of protection directing the mother to stay away from the children, except for ACS-supervised visits. The Family Court explained to the father, who asked for custody of the children during this hearing, that the neglect proceedings would be conducted before any custody proceedings.

The Family Court then adjourned the matter for nearly four months, until June 2, 2009. On that date, the mother orally requested a hearing pursuant to Family Court Act § 1028 for the return of her children. The attorney for the children stated that the matter might be best addressed by a hearing under Family Court Act § 1061 to modify or vacate the order of protection, or under the father's pending custody petition. Counsel for ACS did not address the merits of the mother's request because she had not received notice of it. On June 8, 2009, the Family Court held a conference on the petitioner's request for a Family Court Act § 1028 hearing, at which time the mother's attorney indicated that the mother was “willing to reserve” her request. The parties then went on to address other visitation issues, and the matter was continued until July 2, 2009.

On July 2, 2009, the mother reported that her visits with the children were uneventful and that she accordingly wanted the children paroled back to her. However, since neither ACS nor the attorney for the children were prepared to consent to the mother's request, the mother orally resubmitted her request for a hearing pursuant to Family Court Act § 1028. The matter was then further adjourned until July 27, 2009.

On July 27, 2009, the Family Court issued an order denying the mother's request for a Family Court Act § 1028 hearing because it found that “when a child is moved from the [petitioner's] home to the non respondent father's home [,] that ... is not a removal and it does not generate a basis for a 1028 hearing.” The Family Court reasoned that “[FCA] 1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent.” As an alternative to address the order of protection, the Family Court granted the application of the attorney for the children for a Family Court Act § 1061 hearing. The Family Court scheduled that hearing for September 1, 2009, although the hearing was ultimately adjourned until June 28, 2010.

Family Court Act § 1028(a) provides that “[u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the [law guardian] for an order returning the child, the court shall hold a hearing to determine whether the child should be returned,” with two exceptions not relevant here. The statute further provides that, “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” ( id.).

Family Court Act § 1061 provides that upon a motion by a party or the court, any order issued in the course of a proceeding under article 10 may be set aside, modified, or vacated. In contrast to Family Court Act § 1028, there is no requirement that a Family Court Act § 1061 hearing be held within any specific period of time. The benefit to the mother being granted a Family Court Act § 1028 hearing is that such hearing would be convened much sooner than a hearing under Family Court Act § 1061. Indeed here, the Family Court Act § 1061 hearing was ultimately adjourned to June 28, 2010, more than a year after the mother's original request for a hearing. On the mother's appeal from the denial of her request for a Family Court Act § 1028 hearing, we reverse.

While the determination of this appeal was pending, this Court learned that, in an order dated October 20, 2010, the Family Court directed the return of the children to the mother. Accordingly, the mother's appeal challenging the denial of her application for a Family Court Act § 1028 hearing is moot, since she has now received the relief that she would have received had the Family Court Act § 1028 hearing been conducted. We note, however, that the mother did not obtain such relief until more than 16 months after she first requested a Family Court Act § 1028 hearing, far longer than the 3 court days within which Family Court Act § 1028 hearings are mandated to occur. Under the circumstances, we find that the issue raised on this appeal involves an exception to the mootness doctrine.

“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” ( Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876). Under the mootness doctrine, a court is ordinarily precluded from considering questions “which, although once live, have become moot by passage of time or change in circumstances. In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” ( id. at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876; see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 810–811, 766 N.Y.S.2d 654, 798 N.E.2d 1047, cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430). Generally, a...