Marie B., Matter of

• Citation: 477 N.Y.S.2d 87,62 N.Y.2d 352,465 N.E.2d 807
• Parties: , 465 N.E.2d 807 In the Matter of MARIE B.
• Decision Date: 12 June 1984
• Court: New York Court of Appeals

Page 87

477 N.Y.S.2d 87

62 N.Y.2d 352, 465 N.E.2d 807

In the Matter of MARIE B.

Court of Appeals of New York.

June 12, 1984.

V. Michael Liccione, Utica, for Oneida County Department of Social Services, appellant

Robert Abrams, Atty. Gen. (Michael S. Buskus and Peter H. Schiff, Asst. Attys. Gen., of counsel), in his statutory capacity under section 71 of the Executive Law, appellant.

Deirdre Parke, for respondent mother.

OPINION OF THE COURT

JASEN, Judge.

The critical issue on this appeal is the constitutionality of subdivision (e) of section 1039 of the Family Court Act which authorizes a conclusive finding of parental neglect and the consequent removal of a child, without an actual determination of whether the child has in fact been abused or neglected. Specifically, subdivision (e) of section 1039 provides that parental neglect shall be deemed to exist whenever a court finds that the parent has failed substantially to observe the terms of a previously ordered adjournment in contemplation of dismissal of charges of parental neglect or has failed to cooperate with the supervising child protective agency. Upon such a finding, regardless of whether the parental conduct actually constituted neglect or abuse, the court may proceed directly to a dispositional hearing and order the child removed. Both courts below found the provision to be unconstitutional. We now agree and affirm.

In September, 1979, petitioner Oneida County Department of Social Services (the Agency), originally commenced this proceeding by filing a petition in Family Court alleging the neglect of Marie B., an infant of 18 months at that time. The petition charged respondent mother with chronic intoxication and failure to provide the child with necessities. The court entered a temporary child protective order granting the Agency temporary custody of the child. Subsequently, in December, 1979, at a hearing in which the parent was represented by counsel, the Agency moved for an adjournment in contemplation of dismissal (ACD), pursuant to section 1039 of the Family Court Act. Under the terms of the proposed ACD, custody of the infant was to remain with the Agency for a period of one year, but the child was actually to reside at home with the parent. Moreover, certain conditions were specified, including the parent's abstention from alcoholic beverages, acceptance of alcoholic treatment and counseling, and cooperation with a social worker to be assigned by the Agency. The court explained to the parent that if she violated any of the conditions at any time during the one-year period, she would be considered automatically to have admitted the allegations of abuse and neglect, would not be entitled to a hearing, and her child ^* could be taken from her. When the parent indicated her understanding and consent, the court granted the motion and ordered the ACD.

Within two months, an agency social worker discovered the parent intoxicated and, with the latter's consent, removed the child from the household for placement in foster care. In April, 1980, the Agency filed a petition alleging substantial violations of the conditions of the ACD in that the parent had consumed alcoholic beverages and had refused to be treated for alcoholism. The Agency requested that the ACD be revoked and that the child be removed from the parent's custody pursuant to subdivision (e) of section 1039 of the Family Court Act. In opposition, counsel for the parent moved to dismiss the petition on the ground that those provisions, insofar as they authorize removal upon violation of an ACD, were unconstitutional.

Family Court, holding that the constructive finding of neglect as mandated by the statute was an insufficient predicate upon which to interfere with parental right to custody, granted the parent's motion and dismissed the petition. The Appellate Division, 96 A.D.2d 1140, 467 N.Y.S.2d 454, agreed that subdivision (e) of section 1039 was unconstitutional insofar as the last sentence gave the same force and effect to a violation of a condition of an ACD as a factual finding of child abuse or neglect. That court dismissed the subject petition seeking revocation of the ACD and, finding the original neglect petition to have expired, dismissed that one as well.

Section 1039 of the Family Court Act permits the temporary removal of a child from the parent, as well as any other disposition under section 1052, otherwise authorized only after a formal neglect hearing (see §§ 1041-1049), without first requiring a determination whether the child has in fact been either abused or neglected. Under the provisions of this section, upon the filing of a neglect petition, the court may dispense with the normal fact-finding hearing and order that the child protective proceeding be adjourned in contemplation of dismissal. ( § 1039, subds. The court may proceed, either on its own motion or that of the child protective agency, but only with the parent's consent. Moreover, the court must insure that the parent understands that a substantial violation of the terms of the ACD order would result in an automatic finding of neglect and the possible loss of parental rights. Thereafter, once the order is entered and for the duration of the adjournment period, the specifically disputed provisions of section 1039 take effect. Those provisions are contained in the last sentence of subdivision (e), which provides in its entirety: "(e) Upon application of the petitioner or the child's attorney or law guardian, or upon the court's own motion, made at any time during the duration of the order, the court may restore the matter to the calendar, if the court finds after a hearing that the respondent has failed...