IN RE: a Proceeding Under Article 6 of the Family Court Act (2007)

This is a novel case.   The Court considers whether it must both dismiss a Family Court Act (FCA) Article 6 custody petition of a relative with whom the child is currently placed under a FCA Article 10 proceeding that has been adjourned in contemplation of dismissal and amend the Article 10's permanency goal.   By petition filed August 24, 2006, maternal Aunt A.B. (Petitioner-Aunt) filed a petition for custody of A.C.   A.C. is currently placed in Petitioner-Aunt's care under an Order Adjourning in Contemplation of Dismissal (ACD) a neglect petition filed by Monroe County Department of Human Services, Department of Social Services (Department) against A.C.'s biological mother D.W. (Respondent) (“Order of Disposition” entered August 17, 2006, Robert B. Wiggins, J.).   Respondent moves to dismiss the custody petition as premature.   Petitioner-Aunt, the Department and the Law Guardian oppose the motion.   The Court denies the motion.

Statement of Facts:

By petition filed January 31, 2006, the Department alleged that Respondent neglected A.C.   A.C. was removed from Respondent's home and placed with Petitioner-Aunt under supervision of the Department.   By order entered August 16, 2006, the parties consented to an ACD and the Court approved conditions including, inter alia, A.C.'s continued placement with Petitioner-Aunt and supervised visitation between Respondent and A.C., and that Respondent undergo substance abuse, mental health and anger management counseling.   A first permanency planning hearing (PPH) was held and the parties consented to an order entered December 11, 2006 continuing the goal of “return to parent.”   At the same time, Petitioner-Aunt filed her custody petition.   The proceeding was scheduled for a further PPH and for trial on the custody petition.   The Department supports the custody petition and in its latest Permanency Report dated March 19, 2007 proposes a new permanency goal of “permanent placement with a fit and willing relative” (i.e. Petitioner-Aunt).   The Department never filed a petition alleging a violation by Respondent of the ACD order.   Respondent both moved to dismiss the custody petition and objects to the proposed change in the permanency goal.   Respondent argues that the custody petition is premature and that the Court is required to dismiss it based upon the New York State Supreme Court, Appellate Division, Third Department's holding in Matter of Felicity II v. Lance RR, 27 A.D.3d 790, 811 N.Y.S.2d 465 [3d Dept.2006] (Felicity ).

Statement of Law:

Felicity holds that after a placement order has been issued in a FCA Article Ten proceeding with a permanency goal of “return to parent,” family court may not entertain a non-parent FCA Article Six custody petition until the FCA Article Ten order expires.   Although the Fourth Department has not addressed this issue and Third Department precedent is otherwise controlling, this Court declines to follow Felicity both because (1) its specific finding is superceded by statute and legislative intent to promote permanency;  and (2) the facts herein are distinguishable.

I. Felicity Analyzed:

In Felicity, the child was removed from her biological mother and placed in foster care for approximately nine months from January until October, 2002 under a FCA Article 10 order.   In October 2002, the order was modified and the child was placed with respondent-biological father (Father) under continued supervision.   After approximately seven months, in May 2003, after an incident of domestic violence, the FCA Article 10 order was modified again and the child was placed instead with petitioner-maternal aunt (petitioner).   On December 5, 2003, Father consented to a continued order of placement for one year and a permanency plan was adopted with a goal to reunite Father with his daughter.¹  At the same time petitioner filed a FCA Article 6 custody petition and Father moved for its dismissal.   Family Court denied Father's motion but the Third Department reversed holding that courts should not entertain FCA Article 6 custody petitions by non-parents while FCA Article 10 orders of placement are still in existence because to do so would “completely disrupt the parent's effort to reunite with the child, as Family Ct. Act article 6 custody proceedings have no concomitant obligation on the part of [the Department] to make diligent efforts toward reunification of the family” (Felicity, 27 A.D.3d 790, 792, 811 N.Y.S.2d 465 [citation omitted] ).

II. Legislative Amendments

Felicity interpreted statutory law in effect prior to the December 2005 amendment of Family Court Act § 1017.  Family Court Act § 1017(2)(a)(i) now expressly authorizes courts to place a child in the custody of a relative pursuant to FCA Article 6 (see Matter of Crystal A., 13 Misc.3d 235, 241, 818 N.Y.S.2d 443 [Sup.Ct., Clinton County 2006] ).  Family Court Act § 1089(d)(2)(i)(D) also expressly authorizes a court at a PPH to determine whether the permanency goal should be, inter alia, “permanent placement with a fit and willing relative” (emphasis added;  such language lends itself to the possibility of the relative then pursuing FCA Article 6 custody, if so desired).   This statutory authority directly supercedes Felicity and this Court must-as a matter of law-consider permanent FCA Article 6 placement with a fit and willing relative.

 “[A] court must construe a statute in a manner that will give effect to every word, if possible, and every word, phrase, clause or paragraph must be presumed to have some meaning” (Matter of Tristram K., 36 A.D.3d 147, 151, 824 N.Y.S.2d 232 [1st Dept.2006] ).   In Matter of Tristram K., the First Department held that Family Court Act § 1035(f)-requiring parental consent for the grant of intervenor status to a non-parent relative in a FCA Article 10 action-must be applied strictly as written and rejected the argument that recent amendments to the Family Court Act had impliedly repealed the consent requirement.   The First Department also emphasized that the new permanency statutes were designed to enhance the role of family members in the disposition of child protective proceedings-and that such enhanced role relates exclusively to their availability as custodial resources for the child:  “Indeed, the lack of intervenor status does not prevent suitable relatives from being considered as primary custodial resources of the child” (Matter of Tristram K., 36 A.D.3d at 152, 824 N.Y.S.2d 232 [emphasis added];  see also Besharov, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Court Act § 1035 at 82-83 [refusal of respondent to consent to intervenor status does not preclude relatives from seeking to gain custody or to effect the custody decision], citing Matter of Ricky P., 135 Misc.2d 28, 513 N.Y.S.2d 606 [Fam.Ct., New York County 1987] ).

Here, the Court must consider placement of A.C. under FCA Article 6 and must consider alternative permanency goals including “permanent placement with a fit and willing relative” (Family Ct. Act § § 1017[2][a][i];  1089 [d][2][i][D] )-i.e. Petitioner-Aunt.

III. Factual Distinctions

In any event, even if not specifically superceded by statute, the Third Department itself expressly limited its Felicity holding to FCA Article 6 custody petitions filed after a final order of disposition issued pursuant to FCA Article 10 (see Matter of Donna KK v. Barbara I., 32 A.D.3d 166, 819 N.Y.S.2d 582 [3d Dept.2006] ) [reconciling Felicity with its decision therein-ordering family court to consider a custody petition in conjunction with a dispositional hearing after a neglect finding];  see also Matter of Marcy RR, 2 A.D.3d 1199, 770 N.Y.S.2d 200 [3d Dept.2003] [affirming family court's grant of FCA Article 6 joint custody to a relative resource issued after a joint hearing with a neglect dispositional hearing against respondent parent].   One family court has declined to extend Felicity to a FCA Article 6 custody petition filed before a final order of disposition ² (Matter of Crystal A., 13 Misc.3d 235, 818 N.Y.S.2d 443 [Sup.Ct., Clinton County 2006] ).

Unlike Felicity, here, there was not a final order of disposition under FCA Article 10;  indeed there was never even a finding of neglect, rather the matter was adjourned in contemplation of dismissal and a condition of such ACD was A.C.'s continued placement in the care and custody of Petitioner-Aunt under the supervision of the Department.   The permanency goal was “return to parent” and remained unchanged at the first PPH resulting in the December 5, 2006 order.   The matter is currently scheduled for another PPH and the latest Permanency Report proposes a new goal of “permanent placement with a fit and willing relative” (i.e. Petitioner-Aunt).

 Respondent's motion to dismiss the custody petition is denied.   The petition states a cause of action by alleging that there are extraordinary circumstances warranting a best interest analysis as to whether Petitioner-Aunt should be granted custody.   The pro se custody petition alleges, inter alia, that Respondent “has not engaged in court-ordered services and is presently moving from place to place without a permanent stable residence” (Custody Petition, ¶ 13).   Although a natural parent has a claim of custody of her child superior to that of all others, a non-parent may prove that there are extraordinary circumstances, such as “surrender, abandonment, persistent neglect [or] unfitness” (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] [emphasis added] ).   Although there has not been a neglect finding against Respondent and the Department has not filed a violation petition regarding the ACD order, the Court takes judicial notice that Respondent previously defaulted in appearance (although she was present in court on the date of this motion argument).   Both the Department and the Law Guardian additionally support Petitioner-Aunt's custody petition.   Petitioner-Aunt should have the same right to seek custody as any non-parent-the right to prove extraordinary circumstances-and, if so proven, that it is in A.C.'s best interest that she be granted custody (see Matter of Crystal A., 13 Misc.3d 235, 240, 818 N.Y.S.2d 443 [Sup.Ct., Clinton County 2006] [where the court notes that Felicity creates a class of individuals who have greater protection regarding their custodial rights than the general population-ironically the protected class includes those who have been found to have neglected and/or abused their children] ).

IV. Combined PPH and Custody Hearing

 As the motion to dismiss the custody petition is denied and this matter is currently scheduled for a PPH and custody hearing, the Court will jointly hold both hearings (see generally Matter of Logan AA, 14 Misc.3d 690, 826 N.Y.S.2d 558 [Family Ct., Clinton County 2006] [discussing consequences of holding simultaneous dispositional, permanency and custody hearings] ).   As courts have consistently held that a FCA Article 6 custody hearing shall take place jointly with a FCA Article 10 dispositional hearing after a neglect finding (Matter of Donna KK v. Barbara I., 32 A.D.3d 166, 169, 819 N.Y.S.2d 582;  Matter of Marcy RR, 2 A.D.3d 1199, 770 N.Y.S.2d 200;  Matter of John KK v. Gerri KK, 302 A.D.2d 811, 813, 755 N.Y.S.2d 513 [3d Dept.2003], lv. denied 100 N.Y.2d 504, 762 N.Y.S.2d 874, 793 N.E.2d 411 [2003];  see also Matter of Gordon B.B. v. Monroe County Dept. of Human and Health Services, 30 A.D.3d 1005, 818 N.Y.S.2d 692 [4th Dept.2006];  Matter of Karen A.O. v. Child Protective Services, 6 A.D.3d 1100, 775 N.Y.S.2d 630 [4th Dept.2004] [custody petitions should be considered in the context of dispositional hearings conducted after permanent neglect findings] ), it is a natural extension of this case law in conjunction with the statutory mandates of Family Court Act § 1089 to hear both the PPH and custody hearing jointly as well.   This is especially true where-as here-the Department seeks to change its permanency goal to “permanent placement with a fit and willing relative” in alignment with the goal of the custody petition.³  If Petitioner-Aunt can meet her burden of proving extraordinary circumstances, A.C.'s best interest is of paramount concern in both hearings.

Now, therefore, it is hereby

ORDERED that Respondent's motion to dismiss the custody petition is denied;  and it is further

ORDERED that the joint Permanency Planning and Custody hearing will commence on April 30, 2007.   Dated this 26th day of April, 2007, at Rochester, New York.

FOOTNOTES

1.   It is unclear whether the original permanency goal was to return the child to biological Mother-the only Respondent in the FCA Article 10 proceeding.   Perhaps biological Mother, as petitioner's relative, supported the FCA Article 6 petition.

2.   The court therein noted the bizarre result that if a non-parent steps forward to take care of a child one day before a final FCA Article 10 order of disposition, the court must consider that relative's suitability but if the same person steps forward one day after a FCA Article 10 order of disposition, the court cannot even entertain the petition.

3.   Of course, as in the case of combined neglect dispositional and custody hearings, since Petitioner-Aunt here is not of intervenor status (Family Ct. Act § 1035[f] ) on the FCA Article 10 action, she will not be able to participate with regard to the PPH. The Court, as trier of fact, will be able to discern what proof relates to the parties' respective burdens.

DANDREA L. RUHLMANN, J.