In the Matter of Randi

• Decision Date: 24 December 2009
• Docket Number: 504264
• Citation: 891 N.Y.S.2d 521,2009 NY Slip Op 9560,68 A.D.3d 1458
• Parties: In the Matter of RANDI NN., a Neglected Child. SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; JOSEPH MM., Respondent; KIMBERLY MM., Appellant. (Proceeding No. 1.) In the Matter of RANDI NN., a Neglected Child. SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; RANDI MM., Respondent; KIMBERLY MM., Appellant. (Proceeding No. 2.).
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1458

2009 NY Slip Op 9560

891 N.Y.S.2d 521

In the Matter of RANDI NN., a Neglected Child SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent JOSEPH MM., Respondent KIMBERLY MM., Appellant. (Proceeding No. 1.) In the Matter of RANDI NN., a Neglected Child SCHENECTADY COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; RANDI MM., Respondent; KIMBERLY MM., Appellant. (Proceeding No. 2.).

504264

Appellate Division of the Supreme Court of New York, Third Department.

Decided December 24, 2009.

Appeal from an order of the Family Court of Schenectady County (Assini, J.), entered March 21, 2008, which, in two proceedings pursuant to Family Ct Act article 10, denied a motion by Kimberly MM. to terminate the preadoptive placement of her grandchild.

MERCURE, J.

Respondent Joseph MM. (hereinafter the father) and respondent Randi MM. (hereinafter the mother) are the parents of a daughter (born in 2005). In August 2005, Family Court temporarily removed the child from her parents, found that no suitable relative existed with whom she could appropriately reside and placed her with petitioner. These neglect proceedings were commenced against the parents a short time later, and both admitted to neglecting the child. The child remains in a foster placement and, although petitioner is seeking to terminate the parental rights of the mother and father, the permanency goal remains to return the child to her parents.

Kimberly MM. (hereinafter the grandmother) is the child's paternal grandmother and has custody of two of the child's siblings. She sought visitation with the child in January 2006 and, in August 2006, filed a custody petition. The grandmother then moved to terminate the child's foster placement in favor of a placement with her. Following a hearing, Family Court denied the motion to terminate the placement. The grandmother now appeals, and we reverse.

The grandmother's motion was founded upon Family Ct Act § 1061, which permits Family Court to modify or vacate any order made in a child protective proceeding upon a showing of good cause (see Matter of Amber VV., 19 AD3d 767, 769 [2005]). She argues that good cause can be found in the failure of petitioner to comply with Family Ct Act § 1017, which sets out the steps to be followed in determining the appropriate placement of a child when initially removed from his or her home. When the decision to remove the child was made, petitioner was obliged to locate the child's relatives, including her grandmother, "and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child, and that the child may be adopted by foster parents if attempts at reunification with the birth parent are not required or are unsuccessful" (Family Ct Act former § 1017 [1]; see L 2003, ch 657, § 4).¹ Family Court was then required to determine if the child could suitably reside with any such relative (see Family Ct Act former § 1017 [1] [a], [b]; see also L 1989, ch 744, § 1). If a suitable relative existed, Family Court would either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act former § 1017 [2] [a]). Only if no suitable relative could be located would Family Court go on to consider whether another placement would be appropriate (see Family Ct Act former § 1017 [2] [b]).

The statute, in short, is intended to guard not only the rights of relatives of a child who is removed from his or her home, but also "to protect the rights and interests of children to be placed with their relatives" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1017, at 457; see Matter of Joseph P., 148 Misc 2d 25, 27 [1990]). Thus, a placement order must be set aside if a failure to comply with the statute prejudiced either the rights of a relative to seek placement (see Matter of Elizabeth YY. v Albany County Dept. of Social Servs., 229 AD2d 618, 620-621 [1996]) or the child's right to be placed with a suitable relative (see Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1017, at 457).

Here, although petitioner was aware of the grandmother's existence, the only effort made to directly speak with her consisted of an August 2005 telephone call by a caseworker, Christina Cheetham, who left a message on the grandmother's answering machine with no content other than a request for her to call back. Approximately three weeks later, Cheetham was contacted by Kim Emile, a social worker who worked with the grandmother and who allegedly told Cheetham that the grandmother was not interested in taking custody of the child.² Prior to the grandmother seeking visitation, however, neither Cheetham nor her successor asked the grandmother if she was interested in acting as a foster parent or if she wanted visitation with the child. The burden is not on the grandparent in that regard, it is on petitioner (see Family Ct Act § 1017 [1]).

The grandmother denied telling anyone at petitioner that she was not interested in foster placement or custody; indeed, she testified that she told counsel for petitioner in November 2005 tha...