Monroe County Department of Social Services, Petitioner-Appellant. v. << (2001)

Alicia J. and five of her siblings were placed in the custody of petitioner pursuant to Family Court Act § 1055(a) in 1996.   By order of disposition pursuant to Family Court Act § 1055-a (7) entered in September 1999, Family Court approved placement of the children in foster care for one year and further ordered, inter alia, that “no child covered by this order may be moved to a higher level of care without further order of this court.”   During the one-year period governed by the order, petitioner sought an order placing Alicia “in a suitable higher level of care.”   The petition was supported by the evaluation of a psychologist as well as affidavits of social workers and one of Alicia's foster parents asserting that, due to a variety of psychological disorders, Alicia could not be managed in foster care.   Upon learning during the course of the proceedings that Alicia was being temporarily housed in an emergency care adolescent cottage at Hillside Children's Center, Family Court ordered, sua sponte, that she be “moved forthwith” from that facility “to an appropriate placement.”   We stayed that order pending appeal.   We agree with petitioner and the Law Guardian that Family Court abused its discretion in failing to hold a hearing prior to ordering the child's removal.   There is no statutory authority for such an order of removal.   Further, the statutory scheme of section 1055-a of the Family Court Act contemplates that matters pertaining to the placement of a child freed for adoption should be determined only after proof has been adduced regarding the best interests of the child.   We therefore reverse the order and remit the matter to Monroe County Family Court for a hearing on the issue whether the child should remain at Hutchinson Cottage at Hillside Children's Center pending her placement in an appropriate level of care.

Order unanimously reversed on the law without costs and matter remitted to Monroe County Family Court for further proceedings.

MEMORANDUM: