IN RE: AS

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Family Court, Westchester County, New York.

IN RE: AS, A Child Under Eighteen Years of Age Adjudicated to be Abused by US, Respondent.

Decided: August 30, 2005

Joan C. Salwen, Law Guardian. Lawrence S. Horowitz, Attorney for Respondent. Ricki Ann Feldman, Westchester County Attorney, Attorney for Petitioner.

On December 11, 2003, the Department of Social Services (DSS) filed a petition alleging that the Respondent mother, US (hereinafter the “Respondent”), abused and neglected the Subject Child, AS (hereinafter the “Subject Child”).   The petition alleges that the Respondent beat a sibling of the Subject Child until that child died of the injuries inflicted by the Respondent.   Based on those allegations, the Subject Child was alleged to be at risk of being abused and neglected.   During the pendency of this case, the Respondent was incarcerated pending trial on charges that included, among other charges, the murder of the Subject Child's sibling.   After a criminal trial, the Respondent was convicted of Murder in the Second Degree (PL § 125.25(4)) and Endangering the Welfare of a Child (PL § 260.10(1)).   On September 14, 2004, the Respondent was sentenced, in her criminal matter, to a term of 25 years to Life in prison.

After several adjournments, pursuant to FCA § 1051(a), on January 19, 2005, upon consent of all parties, including the law guardian, the Court issued an order adjudicating the Subject Child as being an abused child as defined by FCA § 1012(e).   Upon consent of all parties, the subject child was scheduled to be placed with her maternal grandmother pursuant to FCA § 1055(a) after several overnight visits first were to have occurred.   However, before physical custody of the child was to be transferred pursuant to FCA § 1055(a), the maternal grandmother informed the Department of Social Services that she did not wish to continue having custody of the Subject Child.   The Subject Child was then placed in the care and custody of the Department of Social Services.

On July 6, 2005, the Department of Social Services filed a motion seeking an order from this Court pursuant to FCA § 1039-b to be relieved from exercising reasonable efforts to reunify the Subject Child and the Respondent.   The Respondent filed an Affirmation in Opposition arguing that “Respondent's murder conviction is currently under appeal.”   The Respondent further argues that the Court “should refrain from entering an Order ․ until Respondent's appeal is decided.”   The law guardian also submitted a reply in support of the Department of Social Services' motion.

 FCA § 1022 requires that DSS make reasonable efforts to prevent a child from being removed from a parent's care and custody prior to such removal.   Once a child is removed from his or her parents' care and the child is placed in foster care, FCA § 1055 requires that reasonable efforts be made for the safe return of the child to her home.   See also, SSL § 384-b.   Notwithstanding these Family Court Act provisions, FCA § 1039-b provides, in pertinent part, that the Department of Social Services may ask the Court to find that reasonable efforts to return the child to her home are not required if the parent of a child has been convicted of murder in the second degree and “the victim was another child of the parent.”   The statute further states that “in determining reasonable effort[s] to be made with respect to a child, ․ the child's health and safety shall be the paramount concern.”

The Department of Social Services now seeks a finding from this Court to allow them to cease reasonable efforts to be made to reunify the Subject Child and the Respondent pursuant to the dictates of FCA § 1039-b.   The Respondent's contention that reasonable efforts should continue because her “murder conviction is currently under appeal” has no merit.

 As an initial matter, the Court notes that the statute does not provide for such an exception.   Furthermore, “the foremost consideration in construing a statute is to give effect to the Legislature's intent and to give meaning to the spirit and purpose of the law.   The court must read and interpret the language of a statute in a way that furthers its goals and purposes.”  In the Matter of Comm. of Soc. Services, o.b.o. Deborah W. v. Vito G., 171 Misc.2d 315, 318, 657 N.Y.S.2d 850.   The intent of FCA § 1039-b is to provide for permanency for the subject child and expedite “possible termination of parental rights in cases involving extreme forms of abuse.”   Sobie, Practice Commentary, McKinney's Cons. Laws of NY, Book 29-A, Family Ct. Act § 1039-b.   Here, the Respondent has been found guilty of murder in the second degree, involving a child of the Respondent and sibling of the Subject Child, which is one of the enumerated crimes in the statute for which such relief shall be granted by the Court.   The Respondent has been sentenced to 25 years to life in prison, a sentence for which reunification between parent and the Subject Child in any foreseeable future is not possible.   Requiring DSS to undertake reasonable efforts to reunify the Subject Child and the Respondent until Respondent's appeal of her murder conviction is decided, would undermine any permanency planning for the Subject Child, possibly for years, while such appeal is pending.   Such a result is contrary to the intent of the statute and not in the best interests of the Subject Child.   The health and safety of the Subject Child necessitate a realistic permanency plan.   See generally, Matter of Marino S., 293 A.D.2d 223, 741 N.Y.S.2d 207.

Accordingly, this Court finds that the Department of Social Services has met its burden, under FCA § 1039-b and thus, the Court orders that DSS has no further obligation to continue with reasonable efforts to reunify the Respondent and the Subject Child.

This constitutes the Decision and Order of this Court.

COLLEEN D. DUFFY, J.