| Matter of Destiny EE. (Karen FF.) |
| 2011 NY Slip Op 09559 [90 AD3d 1437] |
| December 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Destiny EE., a Child Alleged to be PermanentlyNeglected. Ulster County Department of Social Services, Respondent; Karen FF., Appellant.(Proceeding No. 1.) In the Matter of Brandon EE., a Child Alleged to be Permanently Neglected.Ulster County Department of Social Services, Respondent; Karen FF., Appellant. (ProceedingNo. 2.) In the Matter of Nigal FF., a Child Alleged to be Permanently Neglected. Ulster CountyDepartment of Social Services, Respondent; Karen FF., Appellant. (Proceeding No. 3.) (AndThree Other Related Proceedings.) |
—[*1] Heather D. Harp, Ulster County Department of Social Services, Kingston, for respondent. Marian B. Cocose, Bearsville, attorney for the children. Daniel Gartenstein, Kingston, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Ulster County (Mizel, J.), enteredSeptember 27, 2010, which, among other things, in three proceedings pursuant to Social ServicesLaw § 384-b, denied respondent's motion to dismiss the petitions.
Respondent is the mother of two sons (born in 1997 and 2000) and a daughter (born in2003). In 2001, petitioner commenced abuse and neglect proceedings against respondent and herhusband arising out of the husband's sexual abuse of the older son; both sons were removed fromtheir custody.[FN1] Respondent subsequently consented to a finding of neglect based on, among other things, heradmission that she should have known of the abuse. The husband absconded, and Family Courtissued a warrant for his arrest, which was never executed. Following an inquest held in thehusband's absence, Family Court determined that he had sexually abused the older son and hadneglected both sons, and issued orders of protection as to both children; the order applicable tothe older son extended until his 18th birthday. In July 2003, the sons were returned torespondent's custody. Petitioner continued to provide services and supervision untilapproximately June 2005, when the proceedings were closed. Respondent thereafter took thechildren to Wisconsin, where they lived for approximately 18 months before returning to NewYork.
In June 2007, approximately one month after her return to New York, respondent filed acustody petition alleging that the younger son was visiting the husband in Mississippi, thehusband was "doing drugs" and drinking, the husband's girlfriend had hit the younger son with abelt, and the husband had refused respondent's request to return him to her custody. On the daythat this custody petition was filed, petitioner applied, pursuant to Family Ct Act § 1022,for temporary removal of respondent's children on the ground that she had sent the younger sonto [*2]visit the husband despite her knowledge of his sexualabuse of the older son. After a two-day hearing, the court found that it had jurisdiction, orderedthe removal of the children, and placed them in petitioner's temporary custody. The court alsovacated the 2001 warrant against the husband and issued a new warrant for his arrest. Theyounger son was thereafter returned to New York. Petitioner commenced neglect proceedings asto each of the children and, following respondent's admission that her actions constituted neglect,the court placed the children in petitioner's custody.[FN2] In 2009, petitioner commenced proceedings seeking termination of respondent's parental rightsas to all three children. Respondent moved to dismiss the petitions and requested vacatur of the2007 neglect determination and return of the children to her custody. Family Court denied themotion in its entirety, and respondent appeals.
Respondent contends that dismissal and vacatur are required because Family Court lackedjurisdiction over the temporary removal and neglect proceedings under Domestic Relations Lawarticle 5-A, known as the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafterUCCJEA).[FN3] The UCCJEA controls as to jurisdiction here, as in all matters falling within the statutorydefinition of "[c]hild custody proceeding[s]" (Domestic Relations Law § 75-a [4]; see Matter of Kali-Ann E., 27 AD3d796, 797 [2006], lv denied 7 NY3d 704 [2006]). The provisions were enacted to"provide[ ] a mechanism for enforcing orders of custody and visitation across state lines" and toprevent jurisdictional competition in custody proceedings (Matter of Evanitsky v Evans, 81 AD3d 1086, 1087 [2011]; see Matter of Michael McC. v ManuelaA., 48 AD3d 91, 95 [2007], lv dismissed 10 NY3d 836 [2008]; see alsoVanneck v Vanneck, 49 NY2d 602, 608 [1980]). Here, no jurisdiction other than New Yorkhas ever issued custody determinations affecting the subject children, nor have any applicationsfor such determinations been made elsewhere. We find that Family Court properly determinedthat it had jurisdiction over the 2007 proceedings.
The UCCJEA establishes specific grounds as the basis for initial child custody jurisdiction,including, among others, that "this state is the home state of the child on the date of thecommencement of the proceeding, or was the home state of the child within six months beforethe commencement of the proceeding and the child is absent from this state but a parent orperson acting as a parent continues to live in this state" (Domestic Relations Law § 76 [1][a]). The home state is defined as "the state in which a child lived with a parent or a person actingas a parent for at least six consecutive months immediately before the commencement of a childcustody proceeding" (Domestic Relations Law § 75-a [7]). In certain circumstances,children do not have home states (see Matter of Consford v Consford, 271 AD2d 106,111 [2000]). Respondent's children did not have a home state when the temporary removalproceedings were [*3]commenced, as they did not live inWisconsin immediately before the proceedings were commenced and had not yet lived in NewYork for the requisite six months (see Domestic Relations Law § 75-a [7]; Sobie,Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law§ 76, at 458). Although Wisconsin had been the children's home state within the previoussix months, it did not have jurisdiction when the removal application was filed because no"parent or person acting as a parent" was residing there (Domestic Relations Law § 76 [1][a]; see § 76 [1] [b]).
Respondent now claims that the family's stay in New York was intended to be a "temporaryabsence" (Domestic Relations Law § 75-a [7]; see Arnold v Harari, 4 AD3d 644, 646-647 [2004]), that Wisconsinwas still the children's home state, and that she was still a Wisconsin resident.[FN4] However, the record does not support this claim. "Jurisdictional facts must be demonstrated tothe court's satisfaction 'in the first instance' and whatever may occur after the jurisdictionalquestion is determined is irrelevant to that issue" (Gomez v Gomez, 86 AD2d 594, 595[1982], affd 56 NY2d 746 [1982], quoting Vanneck v Vanneck, 49 NY2d at608). The jurisdictional analysis here thus depends upon the facts presented to Family Courtwhen petitioner filed the emergency removal application in June 2007.
At that time, the record included respondent's sworn statements in her custody petitionproviding New York addresses for herself and the younger son, alleging that the younger son hadlived in New York since May 2007, seeking his return to New York, and giving no indicationthat either respondent's presence in New York or that of her children was temporary. Respondentand the older son also made several statements indicating that the family had relocatedpermanently to New York; among other things, respondent told petitioner's caseworkers that shesent the younger son to Mississippi in part to make it easier to get settled after the move, and theolder son stated that the family had moved from Wisconsin because of conflict betweenrespondent and the maternal grandmother. During the removal hearing, respondent made noclaim that her stay in New York was temporary, nor did she produce any evidence of continuedresidence in Wisconsin such as a permanent address or an anticipated date of return.Accordingly, the record before Family Court fully supported a determination that neitherrespondent nor her children still resided in Wisconsin and that their presence in New York wasnot temporary (compare Matter of Feltyv Felty, 66 AD3d 64, 70 [2009]; Arnold v Harari, 4 AD3d at 646-647). Weaccord deference to the court's resolution of the credibility of respondent's subsequentclaims—not raised until after the jurisdictional determination had resulted in the removalof her children and the commencement of neglect proceedings—that the trip to New Yorkhad been intended as a vacation and that she was tricked by court personnel into filing hercustody petition (see Matter of JosephRR. [Lynn TT.], 86 AD3d 723, 725 [2011]; Matter of Nicole K. [Melissa K.], 85 AD3d 1231, 1233 [2011]).
Pursuant to Domestic Relations Law § 76 (1) (b), a New York court may exercisejurisdiction, as pertinent here, when no court in another state has jurisdiction, the child and aparent have a "significant connection" with New York, and "substantial evidence is available in[New York] concerning the child's care, protection, training, and personal relationships." Such a[*4]connection exists only when "the forum in which thelitigation is to proceed has optimum access to relevant evidence. Maximum rather than minimumcontacts with the [s]tate are required" (Vanneck v Vanneck, 49 NY2d at 610 [internalquotation marks and citation omitted]; see Matter of Consford v Consford, 271 AD2d at112).
The removal and neglect proceedings in this matter did not depend primarily uponinformation or contacts available in Wisconsin, but on the degree of risk posed to respondent'schildren by her decision to permit the younger son to visit the husband. New York was the onlyjurisdiction with pertinent information about the husband's previous abuse of the older son,respondent's knowledge of that abuse, and the related risk to her children. The prior proceedingstook place in the same Family Court where the 2007 proceedings were commenced, extendedover a four-year period, and resulted in determinations that the husband had abused the olderson—then approximately four years old—by repeated acts of sodomy over anextended period of time, as well as respondent's admission that she knew or should have knownof the abuse, and that her failure to protect the older son constituted neglect of both sons. A NewYork warrant for the husband's arrest was still outstanding at the time of the temporary removalapplication. At the removal hearing, respondent and the older son were represented by the sameattorneys who had represented them throughout the prior proceedings. Petitioner was familiarwith respondent and her children, as the sons were in its care between 2001 and 2003, and it hadcontinued to provide supervision and services to the family over the next two years. As tocontacts with New York, all three of respondent's children were born here and, except for the18-month stay in Wisconsin, resided here throughout their lives. The children's previous fosterfamily was still in contact with them; at the emergency removal hearing, respondent's counseladvised the court that the previous foster mother had come to court and was available to act as aresource. Moreover, the record indicates that the fathers of the older son and the daughter residein New York, although it is unclear whether they have any significant involvement in thechildren's lives. Accordingly, both the "significant connections" and "substantial evidence"requirements were satisfied. New York was the jurisdiction with optimum access to evidencerelevant to the determinations at issue, and Family Court properly exercised jurisdiction underDomestic Relations Law § 76 (1) (b) (compare Warshawsky v Warshawsky, 226AD2d 708, 709-710 [1996]).
As an alternative basis for jurisdiction, Domestic Relations Law § 76 (1) (d) providesthat a New York court may exercise jurisdiction where, as here, "no court of any other statewould have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of [DomesticRelations Law § 76 (1)]" (see Sobie, Practice Commentaries, McKinney's ConsLaws of NY, Book 14, Domestic Relations Law § 76, at 462). Accordingly, we need notaddress whether New York's "exclusive, continuing jurisdiction" as to the sons resulting from theprior proceedings was severed by respondent's relocation to Wisconsin (Domestic Relations Law§ 76-b [1]; see 28 USC § 1738A [d]; compare Matter of Hissam v Mancini, 80 AD3d 802, 803 [2011],lv dismissed and denied 16 NY3d 870 [2011]; see also Brown v Brown, 69 Pa D& C4th 399, 413-414 [2004]; State ex rel. Seaton v Holmes, 100 Ohio St 3d 265,266-267, 798 NE2d 375, 377-378 [2003]; Maxie v Fernandez, 649 F Supp 627, 631 [EDVa 1986]).
Finally, we reject respondent's contention that vacatur of the 2007 neglect finding wasrequired based upon a recent determination by the Court of Appeals holding that an untreated sexoffender's residence in the same home as his minor children, without more, is insufficient toestablish an imminent danger to his children or neglect by the mother in allowing him to residethere (Matter of Afton C. [JamesC.], 17 NY3d 1, 11 [2011]). In that case, no evidence of actual [*5]danger to the children other than the sex offender designation waspresented, but the Court of Appeals acknowledged that previous crimes against a child in anoffender's care might be sufficient to establish such danger (id.; see Matter of Christopher C. [JoshuaC.], 73 AD3d 1349, 1350-1351 [2010]). In this case, the neglect finding againstrespondent was supported not only by evidence that the husband had sexually abused a child inhis care, but by considerable additional evidence. Respondent was present during the proceedingsthat led to Family Court's determination that the husband's abuse of the older son"demonstrate[d] such a complete lack of understanding of the responsibilities of parenting thatany child in his care would be at serious risk of harm," and issued orders of protection barringhim from contact with both sons. She had previously admitted that she had neglected both sonsby failing to protect the older son from the husband. When she consented to the 2007 neglectadjudication, respondent acknowledged that, when she sent the younger son to visit the husbandin Mississippi, she knew that he had sexually abused the older son and that a warrant for hisarrest was outstanding in New York. She further admitted that she knew details of the husband'sparticular acts of abuse, including, among other things, that he had placed his penis in the olderson's anus and caused the older son to perform oral sex on him; she acknowledged that she hadseen the older son "humping" the husband and had seen him run from the husband while thehusband's pants were down around his legs. Respondent further acknowledged that she did notimmediately seek aid in retrieving the younger son from Mississippi, even after the husbandrefused to return him and after she learned that the husband was using crack cocaine, drinking,and failing to supervise the younger son, that the husband had become so drunk that the youngerson could not awaken him, that the husband's girlfriend had spanked the younger son with a beltwith his pants down, and that the younger son had helped to search for a gun that became lost inthe husband's house. There was thus ample evidence that the husband posed an actual danger torespondent's children and respondent knew of that danger. Family Court properly refused tovacate the 2007 determination that respondent's conduct in permitting the younger son to visithim constituted neglect of the younger son and derivative neglect of the older son and thedaughter.
Spain, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The husband is the father of theyounger son and was the older son's stepfather at the time of the abuse.
Footnote 2: These proceedings have beenthe subject of two prior appeals (Matterof Destiny EE. [Karen FF.], 82 AD3d 1292 [2011]; People ex rel. Karen FF. v Ulster County Dept. of Social Servs., 79AD3d 1187 [2010]).
Footnote 3: Respondent's jurisdictionalobjection was not waived "as subject matter jurisdiction relates to the competence of a court tohear a matter" and cannot be conferred by agreement or waiver (Matter of Consford vConsford, 271 AD2d 106, 110 [2000] [internal quotation marks, brackets and citationomitted]; see Arnold v Harari, 4AD3d 644, 646 [2004]).
Footnote 4: The determination of a child'shome state does not depend on the legal residence of the parent or the child; the two analyses are"separate and distinct" (Matter of Consford v Consford, 271 AD2d at 111).