In the Matter of Sheena B. (anonymous).Admin. For Children's Serv.

• Decision Date: 26 April 2011
• Parties: In the Matter of SHEENA B. (Anonymous).Administration for Children's Services, petitioner-respondent;Rory F. (Anonymous), respondent-respondent;Steven Banks, etc., nonparty-appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1056

922 N.Y.S.2d 176

2011 N.Y. Slip Op. 03594

In the Matter of SHEENA B. (Anonymous).Administration for Children's Services, petitioner-respondent;Rory F. (Anonymous), respondent-respondent;Steven Banks, etc., nonparty-appellant.

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

April 26, 2011.

Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), nonparty-appellant pro se.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for petitioner-respondent.ANITA R. FLORIO, J.P., RUTH C. BALKIN, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.

[922 N.Y.S.2d 177 , 83 A.D.3d 1056]

In a neglect proceeding pursuant to Family Court Act article 10, the attorney for the child appeals from an order of the Family Court, Kings County (Beckoff, J.), dated June 14, 2010, which, prior to a fact-finding hearing, granted the petitioner's application, in effect, pursuant to CPLR 3217(b) for a voluntary discontinuance of the proceeding and dismissed the petition. By decision and order on motion dated June 24, 2010, this Court granted the motion of the attorney for the child to enjoin the petitioner from discharging the child from foster care pending hearing and determination of the appeal.

ORDERED that the order dated June 14, 2010, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the petitioner's application, in effect, pursuant to CPLR 3217(b) for a voluntary discontinuance of the proceeding is denied, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith.

The petitioner commenced this proceeding alleging that then–17 year old Sheena B. had been neglected by her father, who refused to permit her to return to his home. Sheena was placed in the custody of the petitioner pending a final order of disposition and was placed in a group home for pregnant teens. After she gave birth, Sheena was placed in a mother and child program. Prior to the fact-finding hearing on the petition, the petitioner made an application, in effect, pursuant to CPLR 3217(b) for a voluntary discontinuance of the proceeding on the ground that there were no longer any child protective concerns since Sheena had turned 18 and there were no other children named in the petition. The attorney for the child objected, stating that Sheena wished to consent to a continuation of care, which she could only do if there was a finding of neglect. The Family Court stated that, since Sheena was 18 years old, it was “hard to see how the aid of the court ... could be useful under [Family Ct. Act § ] 1051(c).” The Family Court granted the application and dismissed the petition. The attorney for the child appeals.

Contrary to the contention of the attorney for the child, the Family Court granted the petitioner's application, in effect, pursuant to CPLR 3217(b) for a voluntary discontinuance of the proceeding and dismissed the petition. The Family Court did not dismiss the petition pursuant to Family Court Act § 1051(c), despite its reference to that provision ( see Family Ct. Act § 165; Matter of Rafael P., 185 Misc.2d 169, 177, 712 N.Y.S.2d 714; Matter of Billy R., 103 Misc.2d 988, 991, 427 N.Y.S.2d 364). Accordingly, the cases holding that a dismissal pursuant to Family Court Act § 1051(c) may not occur prior to completion of the fact-finding hearing are inapposite ( see Matter of Edwin SS., 302 A.D.2d 754, 754 N.Y.S.2d 912; cf. Matter of Chandler D., 16 A.D.3d 684, 791 N.Y.S.2d 451; Matter of Jonathan M., 306 A.D.2d 413, 761 N.Y.S.2d 280).

CPLR 3217(b) provides that an action or proceeding may be discontinued “upon order of the court and upon terms and conditions, as the court deems proper.” “[O]rdinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted. Particular prejudice to the [child] or other improper consequences flowing from discontinuance may however make denial of discontinuance permissible or [at times] obligatory” ( Tucker v. Tucker, 55 N.Y.2d 378, 383–384, 449 N.Y.S.2d 683, 434 N.E.2d 1050; see Matter of Bianchi v. Breakell, 48 A.D.3d 1000, 852 N.Y.S.2d 454; Christenson v. Gutman, 249 A.D.2d 805, 671 N.Y.S.2d 835; Matter of Commissioner of Franklin County Dept. of Social Servs. v. Terry M., 178 A.D.2d 881, 577 N.Y.S.2d 735). Courts may deny discontinuance to protect the interests of the parties ( see Matter of Cowles, 22 A.D.2d 365, 370, 255 N.Y.S.2d 160, affd. 17 N.Y.2d 567, 268 N.Y.S.2d 327, 215 N.E.2d 509). In matters involving the welfare of a child, not only the parties to the action, but also the public, has an interest in the continuation of the proceeding ( see Winans v. Winans, 124 N.Y. 140, 26 N.E. 293; Matter of Rich v. Kaminsky, 254 App.Div. 6, 3 N.Y.S.2d 689; People ex rel. Intner v. Surles, 149 Misc.2d 644, 566 N.Y.S.2d 512; Matter of Billy R., 103 Misc.2d at 991, 427 N.Y.S.2d 364; Matter of Julie J. v. Edwin A., 86 Misc.2d 882, 383 N.Y.S.2d 994; Palmer v. Palmer, 62 Misc.2d 73, 78, 308 N.Y.S.2d 562), and concern for the welfare of the child justifies denial of the motion ( see Matter of Houck v. Garraway, 293 A.D.2d 782, 739 N.Y.S.2d 499; ...