IN RE: MARYLOU L.

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Family Court, Kings County, New York.

IN RE: MARYLOU L., Petitioner, v. TENECHA L. et al., Respondents.

Decided: October 15, 1999

Henry Roman-Perez, Brooklyn, for petitioner. DC 37 Municipal Employees Legal Services Plan, New York City (Carl Jay Nathanson and Carol North of counsel), for Tenecha L., respondent. Michael D. Hess, Corporation Counsel of New York City (Susan Jalowski of counsel), for Administration for Children's Services, respondent. Legal Aid Society, Brooklyn (Monica Drinane and John Newbery of counsel), Law Guardian.

This is a proceeding for custody of a child in foster care, brought by the child's maternal grandmother who also is the child's foster mother.   The Administration for Children's Services supports the petition.   The mother of the child, with the support of the Law Guardian, argues that the petitioner lacks standing to seek permanent custody of a child who has been placed, under article 10 of the Family Court Act, in the temporary custody of the Administration for Children's Services.   The petitioner argues that the child's need for permanency, and the policy reflected in recent amendments to the Family Court Act and Social Services Law intended to expedite the formulation of a permanency plan for the child, should confer standing on such a relative to seek custody of a child in foster care.   Amendments to the Family Court Act, Social Services Law and Domestic Relations Law [see L.1999, c. 7] to conform with the federal Adoption and Safe Families Act of 1997 [ASFA] [Pub.L. No. 105-89, 111 U.S.Stat. 2115 (1997) ] create a new proceeding, which the statute terms the permanency hearing.   The petitioner notes that under the amended statutes, one of the dispositions following a permanency hearing is permanent placement with a fit and willing relative.  [FCA 1055(b)(iv)(B)(5)(iv).]   The petitioner contends that these amendments confer standing upon relatives to seek permanent custody of a child in foster care, independently of the common law extraordinary circumstances analysis articulated in Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976).   As noted previously, the Administration for Children's Services also argues that the petitioner be granted standing to seek permanent custody of the child.

An order of this court placed the subject child in kinship foster care under Family Court Act § 1055(a), upon a finding that the respondent mother neglected the child.   The subject child initially was paroled to the petitioner grandmother in February 1998, pending trial of the Family Court article 10 proceeding.   The court subsequently found that the respondent mother neglected the child by failing to protect him from acts of violence perpetrated by her paramour, which resulted in the child's arm being fractured.   Although the petitioner argued that the court should place the child directly in her custody as a relative, under Family Court Act § 1055(a), the court placed the child in the custody of the Administration for Children's Services, to reside with the petitioner for a period of twelve months.   This order was effective September 15, 1998.

 The disposition of matters relating to children placed into foster care under article 10 of the Family Court Act is governed by a detailed statutory scheme.   This statute, which applies to all aspects of the process, supersedes any other statute or common law principles of general applicability.  [See, Matter of Sierra H., 138 Misc.2d 908, 526 N.Y.S.2d 339 [Fam.Ct. Broome Co.1988];  and see, Matter of Michael B., 80 N.Y.2d 299, 310, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992].]  Therefore, in determining the petition for custody, the court must refer to the statutes which specifically authorized the State to remove the child from the mother's custody and which delimit the authority of the State to continue as custodian of the child.  [Id.]   A foster parent does not have standing to seek custody of a child in temporary foster care.  [Matter of Michael B., supra, 80 N.Y.2d 299, 590 N.Y.S.2d 60, 604 N.E.2d 122.]   Under the specific terms of article 10 of the Family Court Act, this principle applies equally to kinship foster parents, where a parent appears in the proceeding and objects to the relative's intervention.   Family Court Act § 1035(f) authorizes the “child's adult sibling, grandparent, aunt or uncle not named as respondent in the petition” to move to intervene as an interested party intervenor in the proceeding for the purpose of seeking temporary or permanent custody of the child, only upon consent of the child's parent appearing in the child protective proceeding, or where the parent fails to appear.   The statute permits the intervenor relative, with the parent's consent, to participate in the dispositional phase of the child protective proceeding.   Accordingly, where the parent consents, a relative in the required relation to the child may obtain permanent custody, according to the court's determination of the best interests of the child.  [See, e.g., In the Matter of Wayne M. et al. v. Francis N et al., 154 A.D.2d 837, 546 N.Y.S.2d 494 [3d Dept.1989].]

However, where the parent, appearing in the child protective proceeding, does not consent to the child being placed permanently in the custody of a relative, no other provision of article 10 of the Family Court Act, as it existed prior to the 1999 amendments, gives a relative the right to intervene in the child protective proceeding to obtain permanent custody of the child.  [See, e.g., Matter of Sierra H., supra, 138 Misc.2d 908, 526 N.Y.S.2d 339.]   Rather, the dispositional options available to the court upon a finding of neglect or abuse are limited to the five specified in Family Court Act § 1052(a).   These five dispositional alternatives are:  (1) suspending judgment in accordance with Family Court Act § 1053;  (2) releasing the child to the custody of the parent or other person legally responsible in accord with Family Court Act § 1054;  (3) placing the child, in accordance with Family Court Act § 1055, with, inter alia, a relative or other suitable person for a one-year period;  (4) making an order of protection under Family Court Act § 1056;  or (5) placing the respondent under supervision in accordance with Family Court Act § 1057.

As noted by one appellate court, where a child had been placed with the Commissioner to reside in kinship foster care:

The first, fourth and fifth alternatives are, on their face, inapplicable since a suspended judgment, order of protection or placement under supervision are not involved.   The second alternative, release to the custody of a parent or “other person legally responsible” in accord with Family Court Act § 1054, is also inapplicable.   Pursuant to section 1054, a person “legally responsible” is one who had legal responsibility for the child “at the time of the filing of the petition.”   At the time of the filing of the ․ petitions, the Commissioner had legal custody of the children.  (See, Family Ct.Act § 1017[2] [a][ii];  18 NYCRR 443.1[d].)  Thus, section 1052(a)(ii)'s use of the term “person legally responsible” refers to the Commissioner, not to a kinship foster parent who had been approved by the Commissioner.   While the third alternative of Family Court Act § 1052(a) authorizes placement with “a relative or other suitable person”, such placement is limited to an initial period of one year, as are extensions of placement (Family Ct.Act § 1055[b] [i] ), which, as already noted, require a hearing to consider, inter alia, the child's best interests and the respondent's compliance with the child services plan (Family Ct.Act § 1055[b][iv][A][3];  [B] ).  Nothing in Family Court Act § 1055 authorizes the discharge of a child to a relative for an indefinite period of time․

[Matter of the H./M. Children, 217 A.D.2d 164, 169-170, 634 N.Y.S.2d 675 [1st Dept.1995];  see, also, Williams v. Glass, 245 A.D.2d 66, 664 N.Y.S.2d 792 [1st Dept.1997].]

 Prior to the 1999 amendments, the only statutorily authorized means 1 to obtain permanent custody of a child in foster care, without consent of the child's parents, was to seek adoption following termination of parental rights.   Pursuant to Family Court Act § 1055(d), the court is authorized to direct the child protective agency to file a petition “to legally free the child for adoption.”   A foster parent is statutorily authorized to seek permanent custody of a child in foster care only when the legal right of the parents to custody and guardianship of the child have been terminated upon clear and convincing evidence of abandonment, permanent neglect, mental illness or retardation or severe or repeated abuse.  [Matter of Michael B., supra, 80 N.Y.2d at p. 310, 590 N.Y.S.2d 60, 604 N.E.2d 122.]   As noted in Michael B.:

Because of the statutory emphasis on the biological family as best serving a child's long-range needs, the legal rights of foster parents are necessarily limited (see, Smith v. Organization of Foster Families, 431 U.S. 816, 846, 97 S.Ct. 2094, 53 L.Ed.2d 14).   Legal custody of a child in foster care remains with the agency that places the child, not with the foster parents (Social Services Law § 383[2] ).   Foster parents enter into this arrangement with the express understanding that the placement is temporary, and that the agency retains the right to remove the child upon notice at any time (People ex rel. Ninesling v. Nassau County Dept. of Social Servs., 46 N.Y.2d 382, 387, 413 N.Y.S.2d 626, 386 N.E.2d 235, rearg. denied 46 N.Y.2d 836, 414 N.Y.S.2d 1055, 386 N.E.2d 1105).   As made clear in Matter of Spence-Chapin Adoption Serv. v. Polk, 29 N.Y.2d 196, 324 N.Y.S.2d 937, 274 N.E.2d 431, “foster care custodians must deliver on demand not 16 out of 17 times, but every time, or the usefulness of foster care assignments is destroyed.   To the ordinary fears in placing a child in foster care should not be added the concern that the better the foster care custodians the greater the risk that they will assert, out of love and affection grown too deep, an inchoate right to adopt.”  (Id., at 205, 324 N.Y.S.2d 937, 274 N.E.2d 431.)   Foster parents, moreover, have an affirmative obligation-similar to the obligation of the State-to attempt to solidify the relationship between biological parent and child.   While foster parents may be heard on custody issues (see, Social Services Law § 383[3] ), they have no standing to seek permanent custody absent termination of parental rights (see, Matter of Rivers v. Womack, 178 A.D.2d 532, 577 N.Y.S.2d 322).

[80 N.Y.2d at pp. 309-310, 590 N.Y.S.2d 60, 604 N.E.2d 122.]

Prior to the recent amendments, nothing in article 10 of the Family Court Act indicated that a kinship foster parent who seeks custody over the objection of the parent should be treated differently from a non-kinship foster parent.   Applying the reasoning of Michael B., courts have refused to entertain petitions by relatives for permanent custody of children in foster care, where parental rights have not been terminated.  [See, e.g., Matter of NYC Dept. of Social Services o/b/o Tahira L., 203 A.D.2d 575, 611 N.Y.S.2d 223 [2d Dept.1994], leave to appeal denied, 84 N.Y.2d 804, 618 N.Y.S.2d 6, 642 N.E.2d 325.]   Where the parent withholds consent, the court may only place the subject child temporarily in the custody of a relative.  [See, e.g., Matter of Ricky P., 135 Misc.2d 28, 513 N.Y.S.2d 606 [Fam.Ct.N.Y.Co.1987].]  Even where there has been a termination of parental rights the appropriate means for a relative to obtain permanent custody of the child has been to file a petition for adoption.  [SSL § 384-b(10);  see, e.g., Matter of Peter L., 59 N.Y.2d 513, 466 N.Y.S.2d 251, 453 N.E.2d 480 [1983];  Matter of Mary Liza J., 198 A.D.2d 350, 603 N.Y.S.2d 331 [2d Dept.1993];  Matter of Rockland Co. D.S.S. o/b/o Charles H., 207 A.D.2d 788, 616 N.Y.S.2d 521 [2d Dept.1994].]

The issue raised by the petitioner and the Administration for Children's Services is whether the 1999 amendments have altered these statutory principles.

A new provision has been added to Family Court Act § 1055.  [L.1999, c. 7, § 50.]   Under the new amendments, within twelve months of placement of any child in foster care, the court must conduct a hearing to determine a permanency plan for the child.  [FCA § 1055(b)(ii).]   The initial permanency hearing must occur within twelve months of the earlier of two placement events:  the finding of neglect or abuse under Family Court Act § 1051;  or the sixtieth day after the date the child was removed from his or her home.  [FCA § 1055(b)(i)(ii).]   In the latter case, the initial permanency hearing must occur when the child has been in foster care for fourteen months (60 days + 12 months).   At the permanency hearing, the court must determine, among other issues, whether or when the child:  (i) will be returned to the parent;  (ii) should be placed for adoption with the social services official filing a petition for termination of parental rights;  (iii) should be referred for legal guardianship;  (iv) should be placed permanently with a fit and willing relative;  or (v) should be placed in another permanent living arrangement if the social services official has documented to the court a compelling reason for determining that one of the other four dispositions would not be in the best interest of the child.  [FCA § 1055(b)(iv)(B)(5).]

 It appears, therefore, that under the amended statute, in the context of a permanency hearing conducted within twelve months of the placement event, the court may place the child out of temporary foster care and into the permanent custody of a fit and willing relative.   The statute is silent as to whether such placement with a relative must be according to the other provisions of article 10 in existence prior to the 1999 amendments.

The court notes that none of the relevant portions of the previously cited statutory provisions has been altered by the ASFA amendments.   Family Court Act § 1035(f) continues to limit the intervention of “[t]he child's adult sibling, grandparent, aunt or uncle not named as respondent in the petition” for the purpose of seeking temporary or permanent custody of the child, to require the consent of the child's parent appearing in the proceeding.   The statute continues to limit placement with the Commissioner of Social Services or directly in the custody of a relative under Family Court Act § 1055(a), and any extension of such placement, to a period of one year.  [FCA § 1055(b)(i).]

 Under the statutory scheme, the permanency hearing is scheduled independently of the fact finding and dispositional hearings.2  Therefore, the permanency hearing cannot be construed simply as a process for enlarging the dispositional alternatives following a finding of abuse or neglect.   Significantly to the determination of the present petition, the permanency hearing is not contingent upon any finding of parental unfitness or persistent neglect.   Obviously, the child may not be placed out of the parent's custody and into the permanent custody of a relative without such a finding.  [Cf., e.g., Matter of Bennett v. Jeffreys, supra, 40 N.Y.2d at p. 549, 387 N.Y.S.2d 821, 356 N.E.2d 277.]   Certainly, the permanency hearing is not intended as a substitute for previously enacted procedures to determine the child's need for protection and an appropriate disposition upon a finding of abuse or neglect under Family Court article 10.  [See, e.g., Matter of Marie B., 62 N.Y.2d 352, 477 N.Y.S.2d 87, 465 N.E.2d 807 [1984] [statute equating violation of a pre-finding adjournment in contemplation of dismissal with a finding of neglect was unconstitutional].]  Rather, the court must adopt a plan for the permanency of the child, which may be contingent upon the outcome of the child protective proceeding.   The purpose of the permanency hearing is to establish the goal under which the agency must operate in providing services to the child, parents and other interested persons pursuant to Social Services Law § 409-e [FCA § 1055(b)(iv)(A)(2) ];  to determine whether the goal set initially continues to be appropriate under the current circumstances [FCA § 1055(b)(iv)(A)(1) ];  and to determine whether the agency and the respondent have complied with the service plan [FCA § 1055(b)(iv)(A)(3) ].   The scheduling of the permanency hearing is intended to expedite the process of placing the child in the setting in which the child may be expected to remain indefinitely.   The plan may or may not contemplate the immediate return of the child to the parent.   The plan may contemplate the eventual return of the child to the parent, upon conditions which assure the child's safety [FCA § 1055(b)(iv)(B)(2)(4) ], or may contemplate the eventual termination of parental rights, where grounds for termination appear otherwise to exist [FCA § 1055(b)(iv)(B)(4) ].   The court even may approve a concurrent plan, which sets forth alternative permanency goals of return to the parent or of adoption, depending upon the respondent's compliance with the service plan.  [See, e.g., Matter of Maryann Ellen F., 154 A.D.2d 167, 169, 552 N.Y.S.2d 740 [4th Dept.1990], appeal dismissed 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680;  Matter of Rita VV, 209 A.D.2d 866, 619 N.Y.S.2d 218 [3d Dept.1994] [approving concurrent planning].]  In any event, the statute requires that the court find, in the same order which establishes the permanency plan, that reasonable efforts are being made to implement the plan.  [FCA § 1055(b)(iv)(B)(4).]   It follows that the primary purpose of the permanency hearing is not to adjudicate the rights of the parent to continued custody of the child.

The amendments to the existing statute do not appear to have altered the role of the foster parent, whether kinship or non-kinship, or of the relative with whom a child has been placed directly pursuant to Family Court Act § 1055(a).   The statute continues 3 to confer upon “the person, agency or institution with whom the child was placed,” as well as upon the child, law guardian or the foster parent in whose home the child resides, the right to petition for a permanency hearing.  [FCA § 1055(b)(ii).]   A new provision requires that the foster parent caring for the child or any relative providing care for the child be provided with notice of and an opportunity to be heard at the permanency hearing.  [FCA § 1040.]   The statute specifically provides that no such foster parent or relative shall be construed to be a party to the hearing 4 solely on the basis of such notice and opportunity to be heard, and that the absence of such person from the hearing shall not be grounds for a continuance or to invalidate any order issued after the hearing.  [FCA § 1040.]

In Michael B., the Court of Appeals determined, “[l]ooking to the child's rights as well as the parents' rights to bring up their own children, [that] the Legislature has found and declared that a child's need to grow up with a ‘normal family life in a permanent home’ is ordinarily best met in the child's ‘natural home’ (Social Services Law § 384-b[1][a][i], [ii] ).”  [Matter of Michael B., supra, 80 N.Y.2d at p. 309, 590 N.Y.S.2d 60, 604 N.E.2d 122.]   These legislative findings were unaffected by the 1999 amendment to Social Services Law § 384-b[1][a].   Rather, in amending that section the Legislature added the qualifier that “the health and safety of children is of paramount importance.”  [SSL § 384-b(1)(a).]   Accordingly, the Legislature decreed that the general desirability of returning a child to the natural parent must be “consistent with the health and safety of the child.”  [SSL § 384-b(1)(a).]   Legislative history indicates that this language does not represent a change in law, policy or emphasis in New York.   Rather, the new statute has been described as “merely an attempt to refine the law concerning permanency planning for children in foster care so that New York law more fully and expeditiously accomplishes its pre-existing goals.   The new statute neither creates new rights nor abrogates pre-existing ones, vested or otherwise.”  [Matter of Marino S., 181 Misc.2d 264, 273, 693 N.Y.S.2d 822 [Fam.Ct.N.Y.Co.1999].]

Therefore, the court does not find that the Legislature intended the permanency hearing to be a forum for a petition by a relative caring for a child in temporary foster care, to obtain permanent custody of the child, in the ordinary case.   In the court's view, the significance of the new statutory option of placing a child in the permanent custody of a fit and willing relative, following a permanency hearing held under article 10 of the Family Court Act, is to be found in the 1999 amendments to Social Services Law § 384-b.  [L.1999, c. 7, § 10.]

 Under the amended statute, if the child remains in foster care for fifteen of twenty-two months from the placement event “the authorized agency having care of the child shall file a petition [to terminate parental rights pursuant to Social Services Law § 384-b] unless [inter alia] 5 :  (A) the child is being cared for by a relative or relatives․”  [SSL § 384-b(3)(l)(i)(A) (emphasis added).]   By placing the child in the care of relatives, a petition for termination of parental rights may be avoided.   Consequently, under narrow circumstances in which the relationship of the child to his or her extended family otherwise may be severed by a proceeding to terminate the parents' rights to custody and guardianship of the child, the amendment to Family Court Act § 1055(b) apparently permits relatives of the child to intervene in the permanency hearing to obtain permanent custody.

 This interpretation of the amendment to Family Court Act § 1055(b) is not inconsistent with the general statutory scheme of article 10.   Permanent placement with relatives as an alternative to filing a termination of parental rights petition may be done consistently with Family Court Act § 1035(f), by obtaining the consent of the parent whose rights otherwise may be terminated.6  Alternatively, a relative may intervene to seek permanent custody of the child if the parents have not appeared in the child protective proceeding.  [FCA § 1035(f).]   Even where the parent objects to the permanent transfer of custody, this narrow construction is consistent with established common law principles.   According to existing precedent, although not within the context of proceedings under article 10 of the Family Court Act [see, e.g., Matter of NYC Dept. of Social Services o/b/o Tahira L., supra, 203 A.D.2d 575, 611 N.Y.S.2d 223;  cf., e.g., Matter of Whalen v. Commissioner of Fulton County Dept. of Social Servs., 152 Misc.2d 251, 575 N.Y.S.2d 631 [Fam.Ct. Fulton Co.1991]], a hearing is appropriate upon the petition of a relative for permanent custody of a child under circumstances where the rights of the child's parents to custody and guardianship otherwise might be terminated.

 Generally, a finding of neglect pursuant to article 10 of the Family Court Act does not amount to the extraordinary circumstances necessary to establish a non-parent's standing to seek permanent custody of the respondent parent's child.  [See, e.g., Bisignano v. Walz, 164 A.D.2d 317, 563 N.Y.S.2d 938 [3d Dept.1990];  Matter of NYC Dept. of Social Services o/b/o Tahira L., supra, 203 A.D.2d 575, 611 N.Y.S.2d 223;  and see, Matter of Alfredo S. v. Nassau County Dept. of Social Servs., 172 A.D.2d 528, 532-533, 568 N.Y.S.2d 123 [2d Dept.1991].]  In Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 209, 440 N.Y.S.2d 884, 423 N.E.2d 361 (1981), where a father filed a petition to regain custody of his child from a non-relative, the Court of Appeals held that it “was error ․ to have concluded, in the absence of an abandonment as defined by statute, that petitioner abandoned his child.”  [53 N.Y.2d at p. 209, 440 N.Y.S.2d 884, 423 N.E.2d 361 [emphasis added].]  The court held that “[t]he definition of abandonment for determining whether an extraordinary circumstance is present within the meaning of Bennett v. Jeffreys (supra) simply does not differ from the classic abandonment principle․”  [Matter of Dickson v. Lascaris, supra, at 209, 440 N.Y.S.2d 884, 423 N.E.2d 361.]   In Bisignano v. Walz, 164 A.D.2d 317, 563 N.Y.S.2d 938 (3d Dept.1990), the Appellate Division, Third Department, interpreted Matter of Dickson to require that proof of extraordinary circumstances based upon persisting parental neglect or unfitness sufficient to permit a non-parent to seek custody of a child [Matter of Bennett v. Jeffreys, supra, 40 N.Y.2d at p. 544, 387 N.Y.S.2d 821, 356 N.E.2d 277], meets the standard of permanent neglect set forth in Social Services Law § 384-b.   The Appellate Division, Second Department has agreed implicitly, by requiring non-parents who seek standing to obtain custody of a child to meet a higher degree of proof of a parent's neglect under common law principles than would be required to meet the standard of proof of neglect under Family Court article 10.  [Matter of Alfredo S., 172 A.D.2d 528, 532-533, 568 N.Y.S.2d 123 [2d Dept.1991], appeal dismissed 78 N.Y.2d 899, 573 N.Y.S.2d 459, 577 N.E.2d 1051.]   The Second Department also has relied upon the Third Department's decision in Bisignano v. Walz in dismissing a relative's petition for custody of a child, in the absence of sufficient evidence of parental unfitness [see, e.g., Matter of Ellen K. v. John K., 186 A.D.2d 656, 658, 588 N.Y.S.2d 625 [2d Dept.1992];  Garcia v. Garcia, 183 A.D.2d 826, 584 N.Y.S.2d 71 [2d Dept.1992]], and in sustaining transfers of custody from a parent to a relative on such grounds as the parent's mental illness.  [See, e.g., Matter of Nellie R. v. Betty S., 187 A.D.2d 597, 589 N.Y.S.2d 1000 [2d Dept.1992].]

 Section 1035(f) of the Family Court Act merely codifies this common law principle in part, by stating that a relative does not have the right to intervene in a child protective proceeding to obtain permanent custody of the subject child at disposition, following a finding of neglect.   However, the amended Family Court Act § 1055(b)(iv)(B)(5)(iv) now apparently incorporates the entire common law principle into the statute, by permitting a fit and willing relative to petition for permanent custody as an alternative to the termination of parental rights, where the relative can demonstrate circumstances such as would support a petition to terminate parental rights.   Under such circumstances, the court should entertain the relative's petition for permanent custody of the child, in the context of the permanency hearing.   This interpretation of the amendment is consistent with the legislative purpose “merely * * * to refine the law concerning permanency planning for children in foster care * * * [by legislation which] neither creates new rights nor abrogates preexisting ones, vested or otherwise.”  [Matter of Marino S., supra, 181 Misc.2d, at 273, 693 N.Y.S.2d 822 [Fam.Ct.N.Y.Co.1999].]

This interpretation also is consistent with previous judicial construction of Social Services Law § 392, which is similar to the new permanency hearing statute.   Section 392 of the Social Services Law was enacted in 1971 to require periodic review of the status of children placed into foster care by means other than a Family Court proceeding.  [SSL § 392(1)(b).]   The purpose of the enactment was to ensure early permanency for those children.   The Court of Appeals described the purpose of the foster care review provisions of Social Services Law § 392 as follows:

Fundamental also to the statutory scheme is the preference for providing children with stable, permanent homes as early as possible (see, Matter of Peter L., 59 N.Y.2d 513, 519, 466 N.Y.S.2d 251, 453 N.E.2d 480).  “[W]hen it is clear that the natural parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought” (Social Services Law § 384-b[1][a][iv] ).   Extended foster care is not in the child's best interest, because it deprives a child of a permanent, nurturing family relationship (see, Matter of Gregory B., 74 N.Y.2d 77, 90, 544 N.Y.S.2d 535, 542 N.E.2d 1052, rearg. denied sub nom. Matter of Willie John B., 74 N.Y.2d 880, 547 N.Y.S.2d 841, 547 N.E.2d 96;  Matter of Joyce T., 65 N.Y.2d 39, 47-48, 489 N.Y.S.2d 705, 478 N.E.2d 1306).

[Matter of Michael B., supra, 80 N.Y.2d at p. 310, 590 N.Y.S.2d 60, 604 N.E.2d 122.]

Section 392 of the Social Services Law was amended in 1989 [L.1989, c. 744, § 3] to authorize the court to direct that the child be placed in the custody of a relative.  [SSL § 392(6)(b).]   This amendment is strikingly similar to the newly amended Family Court Act § 1055(b).   Under the amended section 392, a kinship foster parent does not stand in the same relation to the child as any other foster parent.   This distinction was recognized explicitly by the Court of Appeals in Michael B., where the court stated:

As set forth above, there are three possible dispositions after foster care review with respect to a child not freed for adoption:  continued foster care;  release to a parent, guardian, relative or other suitable person;  and institution of parental termination proceedings (Social Services Law § 392 [6] [a]-[c] ).  As the first dispositional option, paragraph (a) contemplates the continuation of foster care, with the child remaining in the custody of the authorized agency, and the arrangement remaining subject to periodic review. * * *   Under the statutory scheme, however, foster care is temporary, contractual and supervised.   Paragraph (b), by contrast, contemplates removal of the child from the foster care system by return to “the parent, guardian or relative, or direct[ion] that the child be placed in the custody of a relative or other suitable person or persons.”   The 1989 statutory revision added as a permissible disposition the placement of children with relatives or other suitable persons.   The purpose of this amendment was to promote family stability by allowing placement with relatives, extended family members or persons like them, as an alternative to foster care (see, Sponsor's Mem. in Support of Amended Bill, L.1989, ch. 744, and 10 Day Bill Budget Report, A 7216-A, Governor's Bill Jacket;  see also, Matter of Peter L., 59 N.Y.2d, at 519, 466 N.Y.S.2d 251, 453 N.E.2d 480, supra).   Plainly, the scheme does not envision also including the [unrelated] foster parents․

[Matter of Michael B., supra, at 316, 590 N.Y.S.2d 60, 604 N.E.2d 122.]

In this court's view, the purpose of the 1999 amendment to Family Court Act § 1055(b), to permit the placement of a child out of foster care and permanently in the care of a fit and willing relative, also “was to promote family stability by allowing placement with relatives ․ as an alternative to foster care.”  [Matter of Michael B., supra, at 316, 590 N.Y.S.2d 60, 604 N.E.2d 122.]   However, under the statutory scheme adopted, the court finds for the reasons previously stated that such petitions are limited to circumstances in which the parents' right to custody and guardianship of the child otherwise may be terminated.

 The present petition for custody must be dismissed as unauthorized by the statute under which the child was placed in foster care.   Moreover, the petition should be dismissed even were the court to consider it a petition for a permanency hearing [FCA § 1055(b)(ii) ], brought by a “fit and willing” kinship foster parent to obtain permanent custody of the child under Family Court Act § 1055(b)(iv)(B)(5)(iv).   The petition fails to allege facts sufficient to establish standing to seek permanent custody of the child placed in the petitioner's care by the Commissioner of the Administration for Children's Services.   The basis for the grandmother's petition for permanent custody of the child is that there has been a finding of neglect against the mother, who is alleged to have continued her relationship with the child's abuser.   The child has not remained in the petitioner's care for the fifteen-month period sufficient to give rise to a petition to terminate the respondent's parental rights, under the amended statutes.  [SSL § 384-b(3)(l) (i)(A).]   Nor, in any event, has the petitioner alleged facts which would give rise to a cause of action for permanent neglect.

FOOTNOTES

1.   Although FCA § 1062 permits “any interested person acting on behalf of a child” placed under section 1055 to petition the court for an order terminating placement, the court may only discharge the child from custody in accord with FCA § 1054.  [FCA § 1065(b).]

2.   The determination to be made in the permanency hearing conceivably might occur even prior to any finding against the respondent parent, where the finding is not made within fourteen months of the child's removal from the home.

3.   Under the statute in existence prior to the 1999 amendments, the person or agency with whom the child was placed, or the child, law guardian or foster parent could petition for a hearing on the extension of placement.

4.   Cf., e.g., Family Court Act § 1055(b)(iii).

5.   The statute also exempts an agency from filing a petition to terminate parental rights where there is a documented “compelling reason for determining that the filing of a petition would not be in the best interest of the child” [SSL § 384-b(3)(l)(i)(B) ], or where the agency has not provided the parents with such services “as it deems necessary for the safe return of the child” to the parents, unless such services are not legally required [SSL § 384-b(3)(l)(i)(C) ].  A “compelling reason” includes that “there are insufficient grounds for filing a petition to terminate parental rights.”  [SSL § 384-b(3)(l)(ii)(D).]

6.   However, the pendency of a disposition under article 10 establishes a compelling reason to exempt the agency from filing a petition to terminate parental rights, even though the child has been in foster care for fifteen consecutive months.  [SSL § 384-b(3)(l)(ii)(E).]

LEE H. ELKINS, J.