IN RE: an Article X Proceeding (2025)

INTRODUCTION

The US Supreme Court has held: "The liberty interest at issue in this case— the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court." See Troxel v. Granville, 530 U.S. 57 (2000). "[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." See Troxel at 68-69.

We understand and agree that this principal is a bedrock of our society. We also understand that this principal is true even when a parent does not fully exercise their fundamental right to the care, custody and control of their children. This is to say that if a parent partially cedes this right to another person, be it the other parent or some other person, the State does not necessarily have the right to step into that void. If the arrangement that the parent has reached does not jeopardize the well-being of the child to the extent that Sate intervention is justified, then the State does not have the right to intervene or dictate the parent's rights to their child.

This, of course, does not end the consideration of this matter. "Acting to guard the general interest in youth's wellbeing, the state, as parens patriae, may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways." See Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Thus, it is equally well-established that the State can, and should, limit a parent's unfettered right to the control of a child not only where there is risk to the child, but where the "general interest in youth's wellbeing" would dictate such action.

Specifically in the context of Family Court Act Article X neglect and abuse cases, the Second Department recently held that:

"Since "the institution of the family is deeply rooted in this Nation's history and tradition," and it is the vehicle through which "we inculcate and pass down many of our most cherished values, moral and cultural" (Moore v. East Cleveland, 431 US 494, 503), it has long been recognized "that freedom of personal choice in matters of family life is a fundamental liberty interest" (Santosky v. Kramer, 455 US 745, 753). Indeed, "a parent's interest 'in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests' " (Matter of F.W. [Monroe W.], 183 AD3d 276, 280, quoting Troxel v. Granville, 530 US 57, 65; see Matter of Elizabeth C. [Omar C.], 156 AD3d at 203). "Similarly, . . . children have a parallel right to be reared by their parent" (Matter of F.W. [Monroe W.], 183 AD3d at 280 [alteration and internal quotation marks omitted]). Nonetheless, a parent's "interest in . . . family integrity . . . is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves" (Wilkinson v Russell, 182 F3d 89, 104 [2d Cir] [internal quotation marks omitted]).

Against those background principles, article 10 of the Family Court Act, which includes Family Court Act § 1017 and which pertains to child protective proceedings, "erects a careful bulwark against unwarranted state intervention into private family life, for which its drafters had a deep concern" (Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 284 [internal quotation marks omitted]). Therefore, "the child protective statutes of Family Court Act article 10 have a twofold purpose: 'to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being,' " while also " 'provid[ing] . . . due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his [or her] needs are properly met' " (Matter of Elizabeth C. [Omar C.], 156 AD3d at 204, quoting Family Ct Act § 1011). Stated more succinctly, the "purpose of article 10 [is] to provide a mechanism to protect children while preserving parental rights" (id. at 209)." See Matter of Sapphire W., 227 N.Y.S.3d 624, 2025 NY Slip Op 00662 (2d Dept 2025).

PROCEDURAL HISTORY

The procedural history in the instant case in uncontested. On March 19, 2025, the Commissioner of Social Services filed a neglect petition against Respondent Father, Francisco N., and requested that the Subject Children be released to the Non-Respondent Mother, Yahaira N., without any supervision. Further, the Commissioner requested that the Court issue an order of protection against Francisco N. and order agency-supervised visits between Francisco N. and the Children. Counsel for Francisco N. asked the Court to schedule an expedited hearing pursuant to FCA § 1027 as to this interference with his parental access to the Children which he had been having weekly from Friday at 7:00 am until Monday at 7:30 am. Of note, this parental access had been ordered on a related custody case on February 11, 2025, only weeks before the filing of the instant case.

In support of the application for a FCA § 1027 hearing, counsel for Francisco N. cited Matter of Danna T. (Miguel T.), 82 Misc 3d 723, 2024 NY Slip Op 24008 (Kings Co. Fam Ct. 2024), Matter of Elizabeth C., 156 AD3d 193 (2d Dept 2017), and Matter of F.W., 183 AD3d 276, 2020 NY Slip Op 02385 (1st Dept 2020). The Court declined the application for a FCA § 1027 hearing at the time, holding that interference with a non-custodial parent's right to their parental access does not constitute a "removal" pursuant to the Family Court Act. The court distinguished the instant case from Matter of Elizabeth C. (which involves the removal of a custodial parent from the home) and Matter of F.W., (which addresses the parameters of a hearing held pursuant to FCA § 1089), and applied the holding in Matter of Danna T. (finding that "there is no sensible reading of sections 1017 or 1027 which could make the third scenario—the one at issue in this particular case—one in which the child has been "removed"). See Matter of Danna T. at *3. The Court gave leave to counsel for Francisco N. to re-argue the matter, which they did through Order to Show Case filed on March 27, 2025 and heard on March 31, 2025.1

In its Order to Show Case, counsel for Francisco N. essentially argues that where there is a "separation" of a parent from their child through an Article Ten case, the Court must treat this separation as a "removal" pursuant to the Family Court Act, with the attendant right to an expedited hearing which must continue day to day, and wherein which the Commissioner would bear the burden of proof. Counsel relies heavily on the recently decided Matter of Sapphire W. and Matter of Elizabeth C. in its papers and in oral arguments.

On April 2, 2025, counsel for the Commissioner and the Attorney for the Child made oral arguments in opposition to the Order to Show Cause. On the same day, counsel for Francisco N. submitted an additional written response as well as provided additional oral arguments in response to the arguments made by the Commissioner and Attorney for the Child.

ANALYSIS

Bearing in mind our obligation to balance the State's obligation to protect children with a parent's right to parent, the real question here is who bears the burden of proof and what standard we apply to case where the State is seeking to limit a respondent non-custodial parent's access to their child through a Family Court Act Article Ten abuse or neglect case prior to the disposition of the case.

In considering this question, the Court is constrained by the applicable statutes and case law. As to counsel's argument that FCA § 1027 applies here, the statute clearly states:

"(a) (i) In any case where the child has been removed without court order or where there has been a hearing pursuant to section one thousand twenty-two of this part at which the respondent was not present, or was not represented by counsel and did not waive his or her right to counsel, the family court shall hold a hearing. Such hearing shall be held no later than the next court day after the filing of a petition to determine whether the child's interests require protection, including whether the child should be returned to the parent or other person legally responsible, pending a final order of disposition and shall continue on successive court days, if necessary, until a decision is made by the court." See Family Court Act § 1027(a)(i).

In interpreting this statute, we first start with the Cambridge dictionary which defines "removal" as "the act of taking something or someone away from somewhere or something." This suggests that there must be an actual "taking" for a "removal" to occur. This is consistent with the most obvious case of a "removal" pursuant to FCA § 1027, where a child is taken from the physical custody of a parent to reside with another adult. In such case, there is a clear removal and FCA § 1027 applies.

It is true that through Elizabeth C., the Second Department expanded the definition of "removal" to a constructive removal, holding that:

"Consequently, the statutory framework of Family Court Act article 10 clearly contemplates that both the temporary physical removal of the child from the family household and the temporary exclusion of a parent from the home and from contact with the child warrant the same due process protections—an expedited hearing into the need for such relief, and a determination that the relief is necessary to eliminate an imminent risk to the child's life or health (see Nicholson v Scoppetta, 3 NY3d at 379 [observing that under Family Ct Act § 1027, only after a court has conducted a prompt hearing and found that the child is at imminent risk can it consider whether that risk may be eliminated by excluding the offending parent, rather than removing the child, from the family residence]; Matter of Naomi R., 296 AD2d 503, 504 [2002] [reinstating a temporary order of protection excluding the respondent father from the home following an expedited hearing pursuant to Family Ct Act {**156 AD3d at 207} § 1027 and a determination that the father's return to the home would present an imminent risk to the children, thereby upholding the application of these due process protections to a parent when he is excluded from the household, not only when the child is removed from the home]).

Since the removal of a child from the family home and the exclusion of a parent from that same home require equal showings of imminent risk, and both result in similar infringements on the constitutionally protected parent-child relationship, we conclude that both trigger the same due process protections. Accordingly, in cases such as the one before us, where no "imminent risk" hearing is held before the parent is excluded from the household and the parent-child relationship is thereby severed, the holding of an expedited hearing within three court days pursuant to Family Court Act § 1028, upon the parent's request, is mandated so that the question of reunification of the parent and child pending resolution of the proceeding may be determined. Due process requires the parent's prompt, full, and fair opportunity to contest his or her exclusion from daily interaction with his or her children in this manner." See Matter of Elizabeth C. at 206-207.

The instant case involves a different set of circumstances than that found in Elizabeth C. In Elizabeth C., the child was constructively removed from a custodial parent through the issuance of a full order of protection against that parent on behalf of the child, which excluded that parent from the home where the parent and the child resided together prior to the filing of the Article Ten petition. In our case, there is a limited order of protection and a court order which affects the number of hours of parenting time that a non-custodial parent has with their child, albeit significantly, but does not serve to constructively remove the child from their parent in the same manner as that found in Elizabeth C.

As to counsel's reliance on Matter of Sapphire W., that case simply does not apply to this matter. In Matter of Sapphire W., the Second Department addressed the question of whether Family Court Act Article Ten allows the court to impose supervision by a child protective agency over a non-respondent parent where the respondent does not reside in the home and the child is not removed from the home. In that case, the Court held "the Family Court improperly placed the mother under the supervision of ACS and the court, and directed her to cooperate with ACS in certain respects." See Sapphire W. at 628. Counsel argues that Sapphire W. also includes language as to the need to carefully balance the state's right to intervene with a parent's right to parent, which we included above. This balance is best achieved by applying the clear language of the Family Court Act as it is written.

In Matter of Danna T., the Court (Pitchal, J.) was faced with a similar question and reached the following conclusion:

"This is not a removal from the non-respondent parent, and it is not a removal from the home. Nor is it a removal from the respondent parent. The child did not live with her father. The child is not being moved from one parent's home to another, as was the case in Lucinda R. The child is not being deprived of the daily care of her father through an order of exclusion, as was the case in Elizabeth C. At most, the child is experiencing a limitation on her visitation with her non-custodial parent, but visitation restrictions — made pursuant to § 1029 and/or § 1030, are not removals." See Matter of Danna T. at 727.

We agree. There is no logical way to see how the instant facts could be considered a "removal." The Children were not removed from their home or their custodial parent, nor were the Children constructively removed by excluding a custodial parent from the home or interfering with what could reasonably be considered "custody" of a child. In this case, Francisco N. had parenting time with the Children for two days of each week. It is this access that the State seeks to limit. Of significant note, this parenting time only came about through a petition filed by Francisco N. on September 22, 2023. Although counsel for Francisco N. argues that prior to September 22, 2023, the parents resided together, his sworn custody petition does not contain such an allegation, stating only "Her mother does not have the resources the support the children and I recommend that she visits a doctor to work out her temperament and the way she acts." No temporary access orders were entered on Francisco N.'s behalf on these custody petition, and in fact, the current order as to Francisco N.'s parenting was only entered on February 11, 2025, a month prior to the filing of this Article Ten neglect petition.

CONCLUSION

For the reasons stated above, the Order to Show Cause is denied as to the request of Francisco N. for the Family Court Act § 1027 expedited hearing. As to the request for a joint release of the Children to both parents, that will be heard as part of the Dispositional hearing which will follow the Fact Finding hearing, scheduled for April 2, 2025.

Dated: April 2, 2025

ENTER:

Hon. Pamela Scheininger, J.F.C.

Pamela Scheininger, J.