S.B., Matter of

• Decision Date: 16 June 1995
• Parties: In the Matter of S.B., A Child Alleged to be Abused/Neglected. G.B., Respondent.
• Court: New York Family Court

Page 1017

629 N.Y.S.2d 1017

165 Misc.2d 632

In the Matter of S.B., A Child Alleged to be Abused/Neglected.

G.B., Respondent.

Family Court, New York County.

June 16, 1995.

Paul A. Crotly, Corp. Counsel of New York City, Gabriel W. Gorenstein, Sp. Asst. Corp. Counsel, by Janet Gottlieb, New York City, for petitioner.

Jane Spinak, Legal Aid Society, Juvenile Rights Div., by Barbara DeMayo, New York City, Law Guardian for the child.

BRUCE M. KAPLAN, Judge.

One of the sad realities of the times in which we live is the inexorable increase of cases on Family Court dockets involving persons who have been found to have neglected their children, and who themselves are afflicted with "life threatening" illnesses.

A necessary concomitant of this fact is that, all too swiftly, life threatening illnesses ineluctably become life ending ones. Such was the fate of G.B. who died on December 31, 1991 although valid proof of her demise was only recently obtained.

Ms. B. was found to have neglected S. because of her failure to provide adequate supervision, and S. was placed with the Commissioner of Social Services (CSS) for up to one year on February 20, 1991. Now that Ms. B. has passed away, S. is in even greater need of an ongoing source of care.

S's situation, though far from rare, is one that grows increasingly prevalent. It would seem evident that the Family Court should exercise its parens patriae jurisdiction to S's circumstances are hardly unique, and one can conjecture that placement is extended invariably in situations of this nature since it is a desirable end, and undertaken with the certainty that no one is in a position to appeal. Unfortunately it is done without consideration of the issue of abatement. This decision addresses that issue.

provide not only for her in this proceeding, but for the large number of neglected children whose parent or parents die after findings of neglect have been made.

It does so because before this court can extend placement, it must first determine that it is not foreclosed from doing so by operation of the doctrine of abatement in an instance where the only known parent or parents of a neglected child are deceased.

Our inquiry commences with an examination of the doctrine of abatement. We next counterpoint it against the conceptual matrix of a dispositional hearing in a child protective proceeding, and ascertain if the petitioner abates.

ABATEMENT

There are a number of ways that abatement is defined in Black's Law Dictionary, 16 (4th ed.). For example: "abatement and revival: used in reference to actions at law, word abate means that action is utterly dead and cannot be revived except by commencing a new action. First Nat. Bank v. Board of Sup'rs of Harrison County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R. 566 [ (1935) ]."

Another definition is "the destruction of cause of action. In re Thompson [Thomasson], Mo., 159 S.W.2d 626, 628 [ (1942) ]."

For our purposes New York's Civil Practice Law and Rules (C.P.L.R.) touches on abatement most cogently in C.P.L.R. § 1015(a) which provides: "Generally. If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties."

The scope of abatement has been limited by statutory enactment from the common law doctrine that all actions abated upon death of any sole party. ¹ Corbett v. Corbett, 100 Misc. 2nd 270, 418 N.Y.S.2d 981 (Family Court, Queens County, 1979). Especially onerous was the fact that personal injury actions abated until the passage of remedial legislation which added §§ 118, 119 to the Decedent Estate Law. L.1935, c. 795 (Gen. Construction Law § 37-a defines "personal injury" in a singularly expansive manner.)

Abatement, notwithstanding remedial legislation, still occurs on the death of a party in a number of clearly identified instances. The determinative factor is whether what is involved is personal in nature, or involves the personal status of a party. The following examples illustrate this point.

In an action for permission to discontinue the life support system of a person in a comatose state, and the person died of natural causes pending appeal, it was stated where only personal status of a party is involved, and death occurs, one deems the matter abated. Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517 (Second Dept., 1980).

For that reason a criminal case is abated upon the death of the defendant even if it occurs following conviction while an appeal is pending. People v. Mintz, 20 N.Y.2d 753, 283 N.Y.S.2d 120, 229 N.E.2d 712 (1967).

An action under Civil Rights Law §§ 50, 51 for use of an infant's picture without parental permission abated on the infant's death. A cause of action under those statutes, based upon the invasion of the infant's privacy, belonged to the infant alone and was extinguished upon the infant's death. Smith v. Long Island Jewish-Hillside Medical Center, 118 A.D.2d 553, 499 N.Y.S.2d 167 (Second Dept.1986).

Until recently paternity proceedings abated on the death of either party. As was noted in Corbett v. Corbett supra, in the absence of statutory authority a paternity proceeding abated on the death of a mother.

Subsequently remedial legislation contained in L.1983, c. 310 added FCA § 518 to permit a paternity proceeding to be commenced, or continued after the death of the mother by any of the persons authorized to bring a paternity proceeding under FCA Article 5.

FCA § 518 was silent with respect to abatement because of the death of a putative father. This statute was thereafter construed in a gender neutral manner to foreclose abatement, and preserve it from a successful constitutional challenge. Joselyn D. v. Oscar O., 132 Misc.2d 964, 505 N.Y.S.2d 791 (Family Court, NY Co.1986).

Thereafter FCA § 519 was enacted to provide that under certain broad circumstances a paternity proceeding would not abate upon the death of a putative father. L.1987, c. 434.

A child protective proceeding would abate should the respondent die before completion of the fact finding. Its purpose is to determine whether a respondent has abused or neglected a child or children. FCA § 1044. As such it involves the personal status of the respondent.

A neglect petition would also abate on the death of the child since there no longer remained anyone to be protected. Matter of Lambert, 119 Misc.2d 326, 462 N.Y.S.2d 791 (Family Ct., Suffolk Co. 1983).

Abatement still occurs upon death in matrimonial actions. In re Crandall's Estate, 196 N.Y. 127, 89 N.E. 578 (1909). However the death of a (former) spouse subsequent to the expiration of the three month interlocutory period following the initial judgment (during which the decree was neither final nor effective) did not cause abatement. Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 164 N.E.2d 395 (1959). This case held that since entry of a final judgment was merely a ministerial act, it was properly entered nunc pro tunc several years later.

The matrimonial suit remains the major category where abatement occurs upon death because the action is entirely personal in nature. Siegel N.Y. Civil Practice § 185. ²

THE DISPOSITIONAL HEARING IN A CHILD PROTECTIVE PROCEEDING

We now examine the nature and purpose of a dispositional hearing in a child protective proceeding.

FCA § 1045 defines a dispositional hearing as follows: "When used in this article, 'dispositional hearing' means a hearing to determine what order of disposition should be made."

Unfortunately, this definition is far less focused in its language than that found in FCA § 623, which provides: "When used in this part, 'dispositional hearing' means a hearing to determine what order of disposition should be made in accordance with the best interests of the child."

These definitions vary widely even though they have identical objectives.

Nonetheless, decisional law clearly, and statutory law inferentially require that the disposition should be made in accordance with the best interests of the child.

Although FCA § 1055 is inartfully drafted, its unmistakable mandate is that the extension of placement must be consistent with the best interests of the child; Antonelli v. DSS, 155 A.D.2d 598, 548 N.Y.S.2d 37 (Second Dept.1989); Matter of Belinda B., 114 A.D.2d 70, 497 N.Y.S.2d 961 (Fourth Dept.1986) and that it focus on the best interest of a child.

Although "best interests" is the operative standard, what constitutes "best interests" can vary from case to case. It could be an extension of placement, Matter of Tommy A., Jr., 201 A.D.2d 970, 607 N.Y.S.2d 831 (Fourth Dept.1994); or a return to the parent. Matter of Sunshine A.Y., 88 A.D.2d 662, 450 N.Y.S.2d 520 (Second Dept.1982).

It is clear that a hearing of this nature does not determine the personal status of a respondent, nor is it personal in nature to him or her. Accordingly it does not abate on his or her death.

The validity of this conclusion is underscored by the amendment of DRL § 113 by L.1993, c. 108.

It provides in pertinent part:

An authorized agency may also consent to the adoption of a minor whose care and custody has been transferred to such agency pursuant to section ten hundred fifty-five of the family court act or section three hundred eighty-four-a of the social services law, where such child's parents are both deceased.

In order for that...