Sayeh R., Matter of

• Citation: 670 N.Y.S.2d 377,693 N.E.2d 724,91 N.Y.2d 306
• Parties: , 693 N.E.2d 724, 1997 N.Y. Slip Op. 11,112 In the Matter of SAYEH R. and Another, Children Alleged to be Neglected. Monroe County Department of Social Services, Appellant, Patricia Ann P., Respondent.
• Decision Date: 22 December 1997
• Court: New York Court of Appeals

Page 377

670 N.Y.S.2d 377

91 N.Y.2d 306, 693 N.E.2d 724, 1997

N.Y. Slip Op. 11,112

In the Matter of SAYEH R. and Another, Children Alleged to be Neglected Monroe County Department of Social Services, Appellant Patricia Ann P., Respondent.

Court of Appeals of New York.

Dec. 22, 1997.

Charles S. Turner, County Attorney of Monroe County, Rochester (Ronald A. Case, of counsel), for appellant.

Harris Beach & Wilcox, L.L.P., Rochester (David C. Boysen and Laura J. Wilson, of counsel), for respondent.

Dennis C. Vacco, Attorney General, Albany (Barbara G. Billet, John W. McConnell and Marlene O. Ruczinski, of counsel), for State of New York, amicus curiae.

OPINION OF THE COURT

CIPARICK, Judge.

In this extraordinary case, a Family Court Act Article 10 child protective proceeding, petitioner Monroe County Department of Social Services (DSS) alleges that respondent Patricia Ann P., a Florida resident, has neglected her two children by her failure and inability to provide a minimum degree of care causing impairment of their emotional health and well-being and a substantial risk of serious future harm. The children, Sayeh (now 18) ¹ and Arash (now 14), have, for the past 8 1/2 years, been living with their father, in Rochester, New York.

The issues presented are (1) whether the Federal Parental Kidnaping Prevention Act (PKPA) (28 U.S.C. § 1738A) preempts the Family Court from taking any action in this case under Article 10 of the Family Court Act; (2) whether there is support for allegations that respondent has engaged in acts or omissions constituting neglect within the meaning of section 1012 of the Family Court Act which would justify petitioner's exercise of its child protective responsibility and (3) whether acts by respondent authorize the assertion of personal jurisdiction by Family Court of the State of New York. We hold that Family Court does have subject-matter jurisdiction over this proceeding and may properly assert personal jurisdiction over respondent. The matter was improperly dismissed on jurisdictional grounds, without reaching the merits, and accordingly should be remitted to Family Court for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

Ahmad R. and Patricia Ann P. were married in Florida in December 1980. Three children were born of the union, Sayeh in October 1979, Sara in October 1981, and Arash in July 1983. A judgment of divorce was granted by the Florida Circuit Court in January 1986, with respondent designated the primary custodial parent. The father relocated to Rochester. In September 1988, Raymond Wike, described in the record as a former boyfriend or acquaintance of respondent, abducted Sayeh and Sara from their bedroom while respondent slept. Wike attacked the two girls, raping and repeatedly stabbing them. Sara was murdered, and Sayeh survived only by feigning death.

In 1989, the Florida court modified its 1986 custody order by making the father the primary custodial parent. Respondent was granted liberal summer and Christmas visitation rights. In so doing, the Florida court stressed the children's need for counseling in the wake of their sister's murder and its finding that the father was the "most capable of providing the daily needs as well as the extraordinary psychological needs of the children" (emphasis supplied). Pursuant to that order, Sayeh and Arash were relocated to Rochester to live with their father, stepmother and children from the second marriage.

For all of the more than eight years since then until the present time, Sayeh and Arash have been New York domiciliaries. Over the years, their lives appear to have become completely integrated into their new family unit in Rochester where they have enjoyed the love, guidance and emotional support of their family on a daily basis.

In contrast with the safe and nurturing environment which the children apparently have enjoyed in their Rochester home, there are corroborated allegations that respondent repeatedly verbally and physically abused the children during their visits to Florida.

In 1995, the children expressed their unwillingness to visit their mother in Florida, indicating that they no longer wished to see her. In December of that year, respondent traveled to Rochester to attempt to enforce her rights to visitation through temporary custody of the children in Florida over their Christmas vacation. Respondent went to the children's home accompanied by a police officer and also allegedly by an unidentified male companion, but was rebuffed and informed that the children did not want to see her.

Respondent then sought enforcement of her visitation rights by means of contempt proceedings against her former husband in the Florida court. In March 1997, following repeated contempt orders against him resulting from a refusal to deliver the children to Florida, the Florida court modified its 1989 custody order, granting primary custody to respondent. An unsuccessful attempt was made in New York to modify the Florida court order which respondent aggressively defended, seeking, affirmatively by order to show cause and subsequently filed attorney's affidavit, enforcement of her rights as per the Florida orders to temporary and then permanent custody (see, Matter of Mott v. Patricia Ann R., 91 N.Y.2d 856, 668 N.Y.S.2d 551, 691 N.E.2d 623 [decided today] ).

In April 1997, petitioner DSS filed the instant petition in Family Court, alleging that, as a result of the prior trauma, the children have weakened psychological functioning and diagnosed serious psychological and emotional pathologies, which would be further severely aggravated by respondent's efforts to obtain temporary and permanent custody.

Respondent moved to dismiss the petition and after a hearing on the issue of jurisdiction Family Court granted her motion. The court held that (1) it lacked personal jurisdiction over respondent, insomuch as the acts alleged by DSS, even if established, did not constitute neglect within New York necessary to support personal jurisdiction under Family Court Act § 1036(c); (2) the emergency jurisdiction provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) (Domestic Relations Law article 5-a) were inapplicable; and (3) the Federal PKPA precluded the court from modifying the Florida court's custody determination.

Reaching only the issue of personal jurisdiction, the Appellate Division affirmed. The Court reasoned that, by arguing that "the emotional consequences in New York of respondent's attempt to enforce otherwise valid Florida orders of visitation and custody constitute neglect occurring within New York," petitioner in effect sought a

"holding that a valid visitation and custody order of one State is the basis for a neglect finding in another State. * * * Such a holding would contravene the strong public policy embodied in the [UCCJA] and [PKPA] to avoid conflicting determinations in interstate custody disputes and would encourage conversion of private custody disputes into child protective proceedings." (239 A.D.2d 959, ----, 659 N.Y.S.2d 590.)

We granted leave to appeal and now reverse and remit to Family Court for further proceedings.

II. ANALYSIS

A. PKPA Preemption

Although Florida has chosen to retain jurisdiction over any custody matters involving respondent mother and the father of the children, the instant proceeding is not an attempt to modify the foreign custody determination but, rather, a valid exercise of lawful authority by an independent statutorily created governmental agency to intervene on behalf of two New York children at risk. In its role as parens patriae, New York is under a powerful duty to protect its domiciliaries from harm (see, e.g., N.Y. Const., art. XVII, § 3). Clearly in the context of a child protective proceeding, the State of New York is best placed to carry out this most important duty in protecting its own infant residents.

A child protective proceeding under article 10 is specifically designed to protect children from injury, abuse or mistreatment, and to help safeguard their physical, mental and emotional well-being (see, Family Ct. Act § 1011). Thus, because the parties involved and the relief sought in this child protective proceeding are quite distinct from those of a custody dispute, this child protective proceeding is not a "custody determination" within the meaning of the PKPA or New York's UCCJA (see, L.G. v. People, 890 P.2d 647 [Colo.]; In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486; State ex rel. Department of Human Servs. v. Avinger, 104 N.M. 255, 720 P.2d 290; see also, White v. Blake, 859 S.W.2d 551 [Tex. App.]; cf. Matter of Mott v. Patricia Ann R., 91 N.Y.2d 856, 668 N.Y.S.2d 551, 691 N.E.2d 623 supra). We further note New York UCCJA's express exclusion of child protective proceedings from its definition of "custody proceeding" (see, Domestic Relations Law § 75-c [3] ).

Here, DSS is acting independently pursuant to its statutory mandate, having investigated reports of alleged abuse and mistreatment. There is absolutely no evidence that DSS is acting on behalf of the children's father. On the contrary, there is independent clinical corroboration of the harmful effects Sayeh and Arash would suffer if removed from their home. Furthermore, New York State has a compelling interest in assuring the safety and well-being of its domiciliaries. As such, we conclude that Family Court erred in viewing this article 10 proceeding as an attempt to modify the Florida court's custody determination as between the parents, notwithstanding that court's retention of continuing jurisdiction over its prior custody order.

B. Authority of Monroe County DSS to Bring This Child Protective Proceeding

Respondent challenges the authority of DSS to bring this proceeding on the grounds that, as a matter of law, a parent's use of the New York courts and law enforcement authorities to enforce judicially granted rights of temporary or permanent custody cannot...