| Matter of Randi NN. (Joseph MM.\MKimberly MM.) |
| 2009 NY Slip Op 09560 [68 AD3d 1458] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Randi NN., a Neglected Child. SchenectadyCounty Department of Social Services, Respondent; Joseph MM., Respondent; Kimberly MM.,Appellant. (Proceeding No. 1.) In the Matter of Randi NN., a Neglected Child. SchenectadyCounty Department of Social Services, Respondent; Randi MM., Respondent; Kimberly MM.,Appellant. (Proceeding No. 2.) |
—[*1] Ursula E. Hall, Schenectady County Department of Social Services, Schenectady, forSchenectady County Department of Social Services, respondent. Joseph MM., Schenectady, respondent pro se. Aaron A. Louridas, Schenectady, for Randi MM., respondent. Karen Crandall, Law Guardian, Schenectady.
Mercure, J. Appeal from an order of the Family Court of Schenectady County (Assini, J.),entered March 21, 2008, which, in two proceedings pursuant to Family Ct Act article 10, denieda motion by Kimberly MM. to terminate the preadoptive placement of her grandchild.
Respondent Joseph MM. (hereinafter the father) and respondent Randi MM. (hereinafter themother) are the parents of a daughter (born in 2005). In August 2005, Family Court temporarilyremoved the child from her parents, found that no suitable relative existed with whom she couldappropriately reside and placed her with petitioner. These neglect proceedings were commencedagainst the parents a short time later, and both admitted to neglecting the child. The childremains in a foster placement and, although petitioner is seeking to terminate the parental rightsof the mother and father, the permanency goal remains to return the child to her parents.
Kimberly MM. (hereinafter the grandmother) is the child's paternal grandmother and hascustody of two of the child's siblings. She sought visitation with the child in January 2006 and, inAugust 2006, filed a custody petition. The grandmother then moved to terminate the child'sfoster placement in favor of a placement with her. Following a hearing, Family Court denied themotion to terminate the placement. The grandmother now appeals, and we reverse.
The grandmother's motion was founded upon Family Ct Act § 1061, which permitsFamily Court to modify or vacate any order made in a child protective proceeding upon ashowing of good cause (see Matter of Amber VV., 19 AD3d 767, 769 [2005]). Sheargues that good cause can be found in the failure of petitioner to comply with Family Ct Act§ 1017, which sets out the steps to be followed in determining the appropriate placementof a child when initially removed from his or her home. When the decision to remove the childwas made, petitioner was obliged to locate the child's relatives, including her grandmother, "andinform them of the pendency of the proceeding and of the opportunity for becoming fosterparents or for seeking custody or care of the child, and that the child may be adopted by fosterparents if attempts at reunification with the birth parent are not required or are unsuccessful"(Family Ct [*2]Act former § 1017 [1]; see L 2003,ch 657, § 4).[FN1]Family Court was then required to determine if the child could suitably reside with any suchrelative (see Family Ct Act former § 1017 [1] [a], [b]; see also L 1989, ch744, § 1). If a suitable relative existed, Family Court would either place the child with thatrelative or with the local commissioner of social services with directions to allow the child toreside with that relative pending his or her approval as a foster parent (see Family Ct Actformer § 1017 [2] [a]). Only if no suitable relative could be located would Family Courtgo on to consider whether another placement would be appropriate (see Family Ct Actformer § 1017 [2] [b]).
The statute, in short, is intended to guard not only the rights of relatives of a child who isremoved from his or her home, but also "to protect the rights and interests of children tobe placed with their relatives" (Besharov, Practice Commentaries, McKinney's Cons Laws ofNY, Book 29A, Family Ct Act § 1017, at 457; see Matter of Joseph P., 148 Misc2d 25, 27 [1990]). Thus, a placement order must be set aside if a failure to comply with thestatute prejudiced either the rights of a relative to seek placement (see Matter of ElizabethYY. v Albany County Dept. of Social Servs., 229 AD2d 618, 620-621 [1996]) or the child'sright to be placed with a suitable relative (see Besharov, Practice Commentaries,McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1017, at 457).
Here, although petitioner was aware of the grandmother's existence, the only effort made todirectly speak with her consisted of an August 2005 telephone call by a caseworker, ChristinaCheetham, who left a message on the grandmother's answering machine with no content otherthan a request for her to call back. Approximately three weeks later, Cheetham was contacted byKim Emile, a social worker who worked with the grandmother and who allegedly told Cheethamthat the grandmother was not interested in taking custody of the child.[FN2]Prior to the grandmother seeking visitation, however, neither Cheetham nor her successor askedthe [*3]grandmother if she was interested in acting as a fosterparent or if she wanted visitation with the child. The burden is not on the grandparent in thatregard, it is on petitioner (see Family Ct Act § 1017 [1]).
The grandmother denied telling anyone at petitioner that she was not interested in fosterplacement or custody; indeed, she testified that she told counsel for petitioner in November 2005that she would seek custody if necessary, but that no action was ever taken by petitioner infurtherance of that conversation. Moreover, Cheetham's successor admitted that he neverexplained to the grandmother how to become a foster parent, and that counsel for petitioneradvised him not to pursue her as a potential foster parent. The grandmother stated that, hadpetitioner made any effort to explain her options, it would have helped her to decide whether toseek custody. Although the grandmother did not finally decide to seek custody until after thechild's removal, the grandmother was confused as to her options with regard to foster placementand petitioner failed in its statutory duty to explain those options and make clear to thegrandmother that her inaction could ultimately lead to foster parents obtaining custody of thechild. As such confusion has potentially deprived the child of a placement with a suitablerelative, we are satisfied that the grandmother demonstrated prejudice to both herself and thechild arising from the failure of petitioner to comply with Family Ct Act § 1017 (1) andthat good cause existed to vacate the placement order (cf. Matter of Elizabeth YY. v AlbanyCounty Dept. of Social Servs., 229 AD2d at 620-621). We accordingly vacate the placementorder and remit these proceedings to Family Court for a de novo determination as to whether thegrandmother is a suitable relative and, if so, what the appropriate placement for the child wouldbe.
Given that these proceedings are to be remitted, we also address the grandmother's claim thatthe child's Law Guardian must be removed due to a conflict of interest created by her prior roleas a law guardian for the child's siblings, two of whom have been adopted by another individualand a third of whom is in the grandmother's custody.[FN3]The grandmother has not established that the Law Guardian has a conflict or that her ability torepresent the child has been hampered in any way (see Matter of Zirkind v Zirkind, 218AD2d 745, 746 [1995]). To the extent that the grandmother asserts that a conflict exists due tothe siblings seeking visitation with the child that the Law Guardian may oppose, the appointmentof separate law guardians for the siblings—appointments which the child's Law Guardiansuggested—insures that the siblings will be properly represented (see e.g. Corigliano vCorigliano, 297 AD2d 328, 329 [2002]; Gary D.B. v Elizabeth C.B., 281 AD2d 969,971-972 [2001]). Indeed, the siblings' Law Guardians have stated that they perceive no conflictin the Law Guardian for the child continuing in her role. We thus perceive no abuse of discretionin Family Court's refusal to disqualify the Law Guardian.[*4]
The grandmother's remaining arguments have either beenrendered academic in light of the foregoing or are unpreserved for our review.
Cardona, P.J., Spain, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, onthe law, without costs, motion granted and matter remitted to the Family Court of SchenectadyCounty for further proceedings not inconsistent with this Court's decision.
Footnote 1: Since the events at issue here,Family Ct Act § 1017 has been significantly amended to, among other things, furtherdefine which relatives must be notified, require the local commissioner of social services todocument the results of his or her investigation, and broaden the range of placement optionsavailable to Family Court (see Sobie, Supp Practice Commentaries, McKinney's ConsLaws of NY, Book 29A, Family Ct Act § 1017, 2008 Pocket Part, at 200-201).
Footnote 2: The grandmother testified that,while she asked Emile to contact petitioner and find out what was going on with the child, shedid not authorize Emile to tell petitioner that she did not want custody. Emile herself did nottestify, having repeatedly failed to appear despite having been subpoenaed, and Family Courtmade no effort to secure her attendance.
Footnote 3: It is unnecessary to address thegrandmother's claim that the judge who heretofore presided over these matters behavedinappropriately, as the judge has now recused herself.