In the Matter of Felicity v. Lance Rr.

• Decision Date: 02 March 2006
• Docket Number: 96881.
• Citation: 27 A.D.3d 790,2006 NY Slip Op 01417,811 N.Y.S.2d 465
• Parties: In the Matter of FELICITY II., Respondent, v. LANCE RR., Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

27 A.D.3d 790

811 N.Y.S.2d 465

2006 NY Slip Op 01417

In the Matter of FELICITY II., Respondent, v. LANCE RR., Appellant, et al., Respondent.

96881.

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

March 2, 2006.

Appeal from an order of the Supreme Court (Rowley, J.), entered September 28, 2004 in Tompkins County, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for sole custody of respondents' child.

Mugglin, J.

The dispositive issue presented by this appeal is whether a Family Ct Act article 6 petition for custody of a child made by a nonparent may be entertained by the court during the pendency of an order of placement and a permanency plan designed to reunite parent and child. In this case, for the reasons hereinafter expressed, we answer the question in the negative and reverse.

The child was born in 1998 and resided with her mother, respondent Rosanne QQ., until she was placed in foster care from January 2002 to October 2002 due to parental neglect. At that time, the child was placed with respondent Lance RR. (hereinafter respondent), her biological father, until May 2003 when, as a result of an act of domestic violence, the Tompkins County Department of Social Services (hereinafter DSS) petitioned to modify the existing Family Ct Act article 10 order and the child was then placed in the custody of petitioner, her maternal aunt. On December 5, 2003, respondent consented to an order of continued placement with petitioner for one year, wherein custody was awarded to DSS and a permanency plan was adopted to attempt to reunite respondent with his daughter. Although petitioner had apparently filed a Family Ct Act article 6 custody petition as of this date, the court announced it was not, at that point, entertaining it and directed respondent to either answer or move with respect to this petition. Respondent thereafter moved to dismiss the Family Ct Act article 6 custody petition for failure to state facts sufficient to establish the existence of extraordinary circumstances which would allow the court to award custody to a nonparent, and to dismiss it on the further grounds that it was barred by the disposition pending in the Family Ct Act article 10 proceeding. The motion to dismiss was denied by decision dated February 13, 2004 and, following extensive hearings, petitioner was granted custody and all visitation for respondent was suspended until further order. Respondent appeals.

Initially, we reject petitioner's procedural argument that the appeal from the denial of the motion to dismiss is time-barred by the provisions of Family Ct Act §§ 1112 and 1113. Respondent's appeal from the final custody order necessarily brings up for review any intermediate order of the court (see CPLR 5501 [a] [1]; Matter of Christina BB., 291 AD2d 738, 738 [2002], lv denied 98 NY2d 605 [2002]).

Turning to the merits, we first observe that "[i]ntervention by the State in the right and responsibility of a [biological] parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child" (Matter of Bennett v Jeffreys, 40 NY2d 543, 549 [1976]). To aid in protecting the children of this state, the Legislature enacted Family Ct Act article 10 to establish procedures where children are, or are in danger of, being neglected by their parents. Pursuant thereto, the state has an obligation to...