| Matter of Dakota F. (Angela F.) |
| 2012 NY Slip Op 01159 [92 AD3d 1097] |
| February 16, 2012 |
| Appellate Division, Third Department |
| In the Matter of Dakota F., a Child Alleged to be Neglected. St.Lawrence County Department of Social Services, Respondent; Angela F.,Appellant. |
—[*1] Laurie L. Paro, St. Lawrence County Department of Social Services, Canton, for respondent. Aaron Turetsky, Keeseville, attorney for the child.
McCarthy, J. Appeal from an amended order of the Family Court of St. Lawrence County(Potter, J.), entered January 11, 2011, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10-A, to extend the placement of respondent's child.
Respondent is the mother of Dakota F. (born in 2003), who is in petitioner's custody. InSeptember 2009, while the permanency planning goal was return to parent, petitioner submitted apermanency hearing report recommending that the goal be changed to placement for adoption.Following a hearing, Family Court issued an order stating that "[p]etitioner's permanency goal forthe child is approved as follows: Concurrent plan of return to parent and placement foradoption."[FN1]Respondent appeals.[FN2][*2]
We reverse. Pursuant to Family Ct Act § 1089 (d),the proof adduced at a permanency hearing "shall include age-appropriate consultation with thechild who is the subject of the permanency hearing." Although the statute does not require ayoung child, such as then-six-year-old Dakota, to be personally produced in court (see Matter of Pedro M., 21 Misc 3d645, 646-648 [2008]), Family Court must find some age-appropriate manner to consult withthe child. The court here erred by not consulting with the child in any manner, or even elicitingan opinion or the child's wishes from the attorney for the child (see Matter of Rebecca KK., 61 AD3d1035, 1037 [2009]; 22 NYCRR 205.17 [e]). We need not decide whether this failure alonerequires reversal; that result is necessary due to a more fundamental error.
Family Court erred by imposing concurrent and contradictory permanency goals.[FN3]Pursuant to statute,"[t]he permanency goal may be determined to be: (A) return to parent; (B)placement for adoption with the local social services official filing a petition for termination ofparental rights; (C) referral for legal guardianship; (D) permanent placement with a fit andwilling relative; or (E) placement in another planned permanent living arrangement that includesa significant connection to an adult willing to be a permanency resource for the child" (Family CtAct § 1089 [d] [2] [i]). As signified by the use of the conjunction "or" and the singularword "goal" as opposed to the plural "goals," the permissible options for the permanency goal arelisted as alternatives, with the court to choose only one. Nothing in the statute indicates that thecourt may select and impose on the parties two or more goals simultaneously.[FN4]The goals selected [*3]here, which the court ordered petitioner toimplement concurrently, are inherently contradictory. Petitioner cannot reasonably work towardthe goal of placing the child for adoption—which, pursuant to the statute, requirespetitioner to file a petition to terminate respondent's parental rights (see Family Ct Act§ 1089 [d] [2] [i] [B])—while at the same time trying to return the child to his parent(but see Matter of Sharu K., 20Misc 3d 479, 487 [2007] [stating that a court "may adjudicate a particular goal yet direct the(agency) to engage in concurrent planning"]; Matter of Marylou L. v Tenecha L., 182Misc 2d 457, 464 [1999]). Because the court did not consult with the child and imposedconcurrent—and inherently contradictory—permanency goals rather than a singlepermanency goal, we must remit for further proceedings.
Based upon our remittal, we need not address the parties' remaining contentions.
Mercure, A.P.J., Rose, Spain and Malone Jr., JJ., concur. Ordered that the amended order isreversed, on the law, without costs, and matter remitted to the Family Court of St. LawrenceCounty for further proceedings not inconsistent with this Court's decision.
Footnote 1: "Family Court has the authorityto approve or modify the proposed permanency goal" (Matter of Rebecca KK., 55 AD3d984, 986 [2008]; see Family Ct Act § 1089 [d] [2] [i]), but the court's orderhere was confusing. Although the order stated that the court "approved" petitioner's goal, thecourt actually modified it by listing a goal different from the one recommended by petitioner.
Footnote 2: We do not find that FamilyCourt's entry of a June 2011 permanency hearing order that also includes concurrent permanencygoals rendered this appeal moot (seeMatter of Jacelyn TT. [Tonia TT.—Carlton TT.], 80 AD3d 1119, 1120 [2011]).This Court has been informed that Family Court entered an order terminating respondent'sparental rights in October 2011, but we have not received such order and have been informed thatrespondent is appealing from it. Even if entry of that order did render this appeal moot, theexception to the mootness doctrine applies because the issues here are substantial, novel, likely tobe repeated, and typically evade review (see Matter of Hearst Corp. v Clyne, 50 NY2d707, 714 [1980]).
Footnote 3: We note that this is not the onlytime that Family Court has improperly ordered concurrent permanency goals (see Matter ofA.D., 27 Misc 3d 1229[A], 2010 NY Slip Op 50967[U], *2 [2010]; see also Matter of Andrea D., 25 Misc3d 503, 504 [2009]).
Footnote 4: Where it is not likely that thechild will be returned to a parent, the court's written order must state "what efforts should bemade to evaluate or plan for another permanent plan" (Family Ct Act § 1089 [d] [2] [iv]).This provision does not authorize approval of more than one permanency goal; it merelyauthorizes an agency, regardless of the current goal, to evaluate and plan for other potentialfuture goals where reunification with a parent is unlikely.