| Matter of Seth Z. |
| 2007 NY Slip Op 09462 [45 AD3d 1208] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Seth Z., a Child Alleged to be Neglected. WarrenCounty Department of Social Services, Respondent; Diane Z., Respondent. Dody AA. et al,Appellants. (Proceeding No. 1.) In the Matter of Dody AA. et al., Appellants, v Diane Z.et al., Respondents. (Proceeding No. 2.) |
—[*1] Karen Judd, Warren County Department of Social Services, Lake George, for Warren [*2]County Department of Social Services, respondent. Kara Mackey Dopman, Glens Falls, for Earl Z., respondent. Robert L. Estes, Law Guardian, Clifton Park.
Carpinello, J. Appeal from an order of the Family Court of Warren County (Breen, J.),entered August 29, 2006, which, among other things, dismissed petitioners' application, inproceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subject child.
The child who is the subject of these proceedings was removed from his mother's care underthe emergency removal procedures outlined under Family Ct Act § 1024 and placed in acertified foster home. One day later, the Warren County Department of Social Services(hereinafter the Department) commenced a neglect proceeding against the mother, who was thenincarcerated, based on allegations that she was using and selling drugs out of a hotel room whereshe resided with the child.[FN1]The mother ultimately admitted that she neglected the child and that aspect of this proceeding isnot before us.
Rather, the issue on appeal stems from an application by the mother's sister and her husband(hereinafter the aunt and uncle) in the context of the neglect proceeding for an order approvingthem as suitable relatives to care for the child.[FN2]They also commenced a separate proceeding for custody pursuant to Family Ct Act article 6naming the mother, the father and the Department as parties. The Department opposed theapplication on the ground that, in its opinion, the aunt and uncle were not suitable for placementof the child based on a home study and investigation pursuant to Family Ct Act § 1017.The Department also sought dismissal of the custody proceeding based upon this Court's thenrecent decision in Matter of Felicity II. vLance RR. (27 AD3d 790 [2006]).[FN3]Family Court denied the application by the aunt and uncle [*3]and also dismissed their custody proceeding without a hearing,prompting this appeal.
The aunt and uncle argue that Family Court erred in summarily denying their application anddismissing their custody petition. They further assert that, because they are relatives capable oftaking care of the child, Family Court should have placed the child with them. We first addressthe propriety of the court's decision to deny their application in the context of the neglectproceeding.
At the outset, we find that the Department fulfilled its obligations in the course of itsmandated Family Ct Act § 1017 investigation and no provision of this statute required ahearing. Following the emergency removal of the child from the mother's custody, theDepartment identified the aunt as a potential foster parent and/or custodian of the child,investigated the home she shared with the uncle and their children and submitted a report toFamily Court recommending that this home was not suitable for placement (see FamilyCt Act § 1017 [1]). The Department supported this recommendation with variousdocumentation.
Under the statutory scheme, it was Family Court's obligation to determine if the aunt anduncle were suitable and, if so, to place the child in their custody pursuant to Family Ct Act article6 or Family Ct Act article 10 (see Family Ct Act § 1017 [2] [a] [i]-[ii]; but seeMatter of Felicity II. v Lance RR., supra) or place the child in the Department's custody buthave him reside with the aunt and uncle pending their approval as foster parents (seeFamily Ct Act § 1017 [2] [a]). In the event that Family Court determined that the aunt anduncle were not suitable, it could place the child with the Department (see Family Ct Act§ 1017 [2] [b]). Here, armed with the Department's report, as well as the aunt and uncle'sresponse thereto, Family Court determined that there was no suitable relative with whom thechild could appropriately reside and thus continued placement in the nonrelative foster home(see Family Ct Act § 1017 [1] [a]; [2] [b]). Upon our review of the record, we findno abuse of discretion in Family Court's decision to deny the aunt and uncle's application in thecontext of the neglect proceeding.
We next turn to the contention by the aunt and uncle that they were entitled to a hearingunder Family Ct Act § 1028-a. To be sure, pursuant to this recently-enacted provision(see L 2005, ch 671), if a relative applies to become a foster parent to a child who hasbeen temporarily removed from parental custody and is placed in nonrelative foster care, a courtis required to hold a hearing only if certain conditions are met (see Family Ct Act §1028-a [a] [i]-[v]). One such condition is where a local department of social services "has refusedto place the child with the relative for reasons other than the relative's failure to qualify as afoster parent" (Family Ct Act § 1028-a [a] [iv] [emphasis added]).
Since the Department indicated that it would not place the child with the aunt and unclebecause they would not qualify as foster parents (see 18 NYCRR 443.1, 443.7),the condition outlined under Family Ct Act § 1028-a (a) (iv) was clearly not met. Thus, weare unpersuaded that, under Family Ct Act § 1028-a, the aunt and uncle were entitled to ahearing. We note further that, even if the hearing procedures outlined under Family Ct Act§ 1028-a were [*4]implicated, Family Ct Act §1028-a (c) makes clear that "[n]o child, however, shall be placed with a relative prior to finalapproval . . . of such relative as a foster parent." Inasmuch as the aunt and unclenever actually submitted an application to become foster parents, there was no final approval totrigger this provision.
We now turn to the custody proceeding. To the extent that Family Court relied uponMatter of Felicity II. v Lance RR. (supra) to summarily dismiss it, we find thatthe rationale outlined in this decision has been superceded by subsequent amendments to theFamily Ct Act (see Family Ct Act § 1017 [2] [a] [i]), which recognize and acceptan interplay between Family Ct Act articles 6 and 10.
To be sure, while an appealing argument can be made that Family Court's finding ofunsuitability for the purpose of placement within the context of the neglect proceeding seeminglyrenders any success in the custody proceeding unlikely—particularly on the issue of thechild's best interest (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548-549[1976])—we note that this finding was made without the benefit of a hearing and that theaunt and the uncle contested numerous aspects of the Department's report. Thus, while nohearing was mandated prior to the court's determination of suitability within the confines ofFamily Ct Act §§ 1017 and 1028-a under the facts of this particular case, the generalright to a hearing within the confines of the Family Ct Act article 6 custody proceedings remains(see e.g. Matter of Jacqueline Sharon L.v Pamela G., 26 AD3d 250, 252-253 [2006]; Matter of Tristram K., 25 AD3d 222, 226 [2005]; compare Matter of Donna KK. v BarbaraI., 32 AD3d 166, 168-169 [2006]; Matter of John KK. v Gerri KK., 302 AD2d811, 813 [2003], lv denied 100 NY2d 504 [2003]; Matter of Scott FF. v LaureneEE., 278 AD2d 539, 540 [2000]). In other words, nothing within the new provisions evincesa legislative intent to eliminate the right to a hearing in the context of Family Ct Act article 6proceedings. Thus, the custody petition should be reinstated and answers, including any and allaffirmative defenses, submitted.
Mercure, J.P., Spain, Mugglin and Kane, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by reversing so much thereof as dismissed the custodyproceeding; petition reinstated and matter remitted to the Family Court of Warren County forfurther proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: The child's father was alsoincarcerated at this time.
Footnote 2: The Department deemed this tobe an application by the aunt and uncle to be foster parents.
Footnote 3: It appears that no partysubmitted an answer to the custody petition filed by the aunt and uncle.