| Matter of Tumari W. |
| 2009 NY Slip Op 06854 [65 AD3d 1357] |
| September 29, 2009 |
| Appellate Division, Second Department |
| In the Matter of Tumari W., an Infant. Administration forChildren's Services, Respondent; Lynell W., Appellant; Andre M., NonpartyRespondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and PamelaSeider Dolgow of counsel), for petitioner-respondent. Jeffrey W. Johnson, Staten Island, N.Y., attorney for the child.
In a child protective proceeding pursuant to Family Court Act article 10, the mother, LynellW., appeals from an order of the Family Court, Richmond County (McElrath, J.), dated January14, 2009, which, without a hearing, authorized the Administration for Children's Services torelease the subject child to his father, the nonparty Andre M.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Richmond County, for further proceedings consistent herewith.
Following an emergency removal of the subject child from his mother's custody (seeFamily Ct Act § 1027), the child was placed with the Commissioner of theAdministration for Children's Services (hereinafter ACS), who placed the child in kinship fostercare with a 28-year-old adult sister. At a court appearance on December 9, 2008, the motherstated that it was "acceptable to her" that the child remain with her older daughter, but shewanted ACS to explore placing the child temporarily with his father, the nonparty Andre M. Shealso reserved her right to request a hearing pursuant to Family Court Act § 1028 for returnof the child to her. The court directed ACS to investigate the father as a possible resource. Thefather, who was present in court, stated that he intended to return with the child to his house inSt. Thomas in the United States Virgin Islands.
At the next court appearance on January 12, 2009, the attorney for ACS recommended that itwas appropriate to release the child to the father during the pendency of the neglect proceeding.There is no information in the record as to the basis of this recommendation. The motherobjected to the [*2]placement of the child with his father, interalia, on the ground that she felt his home in St. Thomas was not suitable. The attorney for thechild was not present, having previously informed the court that he had injured his ankle andwould not be able to appear.
Over the mother's objection, the Family Court authorized ACS to release the subject child tohis father pursuant to what it characterized as the "privilege of parole." The mother's applicationto direct the father not to remove the child from New York State was denied on the ground thatthe father was not a party to the neglect proceeding, and the Family Court did not "have theauthority to enter an order against him." The Family Court stayed enforcement of its order toallow the mother to seek appellate review and "allow the law guardian time to object and seekappellate review." We reverse.
As ACS correctly concedes, the Family Court improperly authorized ACS to release thechild from its care to the care of the father, who intended to take him out-of-state, over themother's objection, without the attorney for the child present, without conditions, and withoutseeking information about the father's home in St. Thomas pursuant to the Interstate Compact onthe Placement of Children (Social Services Law § 374-a [1] [hereinafter the ICPC]; seeMatter of Shaida W., 85 NY2d 453 [1995]; Matter of Faison v Capozello, 50 AD3d797 [2008]; Matter of Keanu Blue R., 292 AD2d 614 [2002]; Social Services Law§ 374-a [1] [art III] [a-d]). Article VIII (a) of the ICPC states that the ICPC does not applyto "[t]he sending or bringing of a child into a receiving state by his parent, step-parent,grandparent, adult brother or sister, adult uncle or aunt, or guardian" (see Social ServicesLaw § 374-a). However, that provision does not apply to the facts of this case. As noted bythe Court of Appeals in Matter of Shaida W. (85 NY2d 453 [1995]), the "sendingagency" was ACS, not the father, since ACS, not the father, had custody.
The dissent attempts to distinguish prior decisions of this Court applying the ICPC to aparent, on the ground that those cases involved a parent "deemed of diminished parentalcapacity" (see Matter of Faison v Capozello, 50 AD3d 797 [2008]; Matter of KeanuBlue R., 292 AD2d 614 [2002]). However, in Matter of Faison v Capozello, thefather was found to be unsuitable after an investigation pursuant to the ICPC. In Matter ofKeanu Blue R., we found that the Family Court erred in releasing the child to the mother inOhio without compliance with the ICPC. Contrary to the conclusion of the dissent, this line ofcases mandates reversal.
Matter of Alfredo S. v Nassau County Dept. of Social Servs. (172 AD2d 528[1991]), relied upon by the Family Court and the dissent, is distinguishable. In that case, thefather petitioned for custody pursuant to Family Court Act article 6. However, in the instant case,the father never petitioned for legal custody, and he did not have joint or de facto custody of thechild by virtue of living with the child prior to the removal of the child from the mother'scustody. Rather, his status is that of a nonparty absentee father.
The dissent asserts that the release of the child to the nonrespondent father was properpursuant to certain advisory regulations of the ICPC, which state that "[t]he Compact does notapply whenever a court transfers the child to a non-custodial parent with respect to whom thecourt does not have evidence before it that such parent is unfit, does not seek such evidence, anddoes not retain jurisdiction over the child after the court transfers the child" (Association ofAdministrators of the Interstate Compact on the Placement of Children,http://icpc.aphsa.org/Home/regulations.asp [Regulation 3 (6) (b), eff Jul. 2, 2001])(hereinafter regulation 3 [6] [b]). This regulation, which went into effect in 2001, "authorize[s][the] court to hold the ICPC inapplicable" to a parent but does not require such a result,and such a determination may be appealed (Green v Division of Family Servs., 864 A2d921, 928 [Del 2004]). Moreover, the regulation does not prohibit the Family Court from seekingfurther evidence of whether the noncustodial parent, or his or her home, is fit. An issue in thiscase, reviewable on appeal, is whether the Family Court's failure to seek further evidence wasproper. The Family Court's failure to seek further evidence in this case, including evidencepursuant to the ICPC, was improper. In addition, the Family Court's failure to seek input fromthe attorney for the child was improper.
As noted by the dissent, there is conflicting authority among the various jurisdictions in thenation as to whether the ICPC applies to reunification of a child with a noncustodial parent(see Bester v Lake County Off. of Family & Children, 839 NE2d 143, 145, n 2 [Ind2005]). However, New York State is squarely among those jurisdictions which apply the ICPCto a noncustodial parent (see Matter of [*3]Shaida W., 85NY2d 453 [1995]; Matter of Faison v Capozello, 50 AD3d 797 [2008]; Matter ofKeanu Blue R., 292 AD2d 614 [2002]; Matter of Crystal A., 13 Misc 3d 235, 237[2006]).
Nevertheless, the dissent states that ACS was required to release the child to his fatherpursuant to regulation 3 (6) (b), since the Family Court "neither sought further information norretained jurisdiction." However, pursuant to statute, the Family Court was not authorized torelinquish jurisdiction over the matter, nor did it. Pursuant to Family Court Act § 1017 (2)(a), the Family Court, not ACS, placed the child with the father, based upon a determination that"the child may reside" with such "non-respondent parent." The fact that the Family Court madethis determination based upon no information in the record, other than the conclusoryrecommendation of ACS, is problematic.
If the Family Court were authorized to relinquish jurisdiction to ACS and a nonrespondentparent in a proceeding pursuant to Family Court Act article 10, such would also relinquish anyrights the respondent parent may have to return of the child, in the event that the neglect chargeswere not sustained, or were found insufficient to justify removal. Indeed, the dissent envisions aprocedure whereby the respondent parent, during the pendency of a neglect proceeding, wouldbe required to cross-petition for custody to preserve his or her rights, and would be required tomove for a hearing pursuant to Matter of Tropea v Tropea (87 NY2d 727 [1996]), toprevent the relocation of the child to another jurisdiction.
The statute envisions a nonrespondent parent petitioning for custody (see Family CtAct § 1017 [2]), and there may be circumstances in such a case where resort to the ICPCmay be dispensed with in the exercise of the court's discretion (see Matter of Crystal A.,13 Misc 3d 235 [2006]; but see Matter of J.T., 22 Misc 3d 1106[A]). Indeed, newlyenacted Family Court Act § 1017 (2) (a) (i) and § 1055-b (L 2008, ch 519,§§ 1, 5) expressly authorize the Family Court to grant a nonrespondent parentcustody pursuant to Family Court Act article 6, and thereby conclude the Family Court'sjurisdiction pursuant to Family Court Act article 10 (see Family Ct Act § 1055-b[d]). Although these amendments took effect in March 2009, after the order appealed from wasissued, they are expressive of the Legislature's view of public policy concerns.
However, there is no requirement or mention in the statute of a respondent parentcross-petitioning for custody to preserve his or her rights to contest a petition alleging abuse orneglect.
Accordingly, we reverse the order appealed from and remit the matter to the Family Court,Richmond County, for further proceedings consistent herewith. Chambers, Lott and Austin, JJ.,concur.
Spolzino, J.P., dissents and votes to affirm the order with the following memorandum, inwhich Angiolillo, J., concurs: I do not agree that the release of a child to his father requirescompliance with the Interstate Compact on the Placement of Children simply because the fatherhas expressed his intention to relocate with the child outside the state. While the mother wouldbe entitled in these circumstances to a hearing to determine whether the relocation is in the bestinterests of the child (see Matter of Tropea v Tropea 87 NY2d 727 [1996]), theAdministration for Children's Services (hereinafter ACS), having decided that release to thefather posed no risk to the child, has no further role to play in determining where the father andchild may live. Thus, despite the concession by ACS, I would affirm the order of the FamilyCourt and, therefore, I dissent, respectfully.
This is one of four contemporaneous child neglect proceedings brought against the mother.The father was not a party. At the initial appearance, on December 9, 2008, the mother consentedthat the children other than Tumari remain with her 28-year-old daughter. She requested thatTumari be [*4]returned to or placed temporarily with his father,who was present in court. The Family Court directed ACS to investigate the father "as a possibleresource for Tumari as in Alfred S." The court adjourned the matter to March 24, 2009,to allow ACS to conduct its investigation, and authorized ACS, if the result of the investigationwere favorable, to release Tumari to the father in the interim. When the father expressed hisintent to relocate to St. Thomas in March, the Family Court agreed to advance the next court dateto January 12, 2009, but did not alter the substance of its order.
The parties returned to court January 12, 2009, at which time ACS reported that the releaseto the father would not pose a risk to Tumari and stated that Tumari would be released to him. Atthat point, the mother objected to Tumari being removed from New York. The Family Courtrejected the mother's objection and directed that Tumari be released to his father, but stayedenforcement of that order for four days to allow the mother to seek appellate relief. Although themother then asked that Tumari not be allowed to leave New York State, the Family Court did notrule on that application. The mother took an appeal to this Court on January 14, 2009, and, bydecision and order on motion dated February 2, 2009, we stayed enforcement of the orderreleasing Tumari to his father pending determination of the appeal.
In Matter of Alfredo S. v Nassau County Dept. of Social Servs. (172 AD2d 528, 529[1991]), we held that a child who has been removed from his mother's care by reason of neglectmust be released to his father, without reaching the issue of the child's best interests, unless therehas been "a threshold showing of 'surrender, abandonment, persisting neglect, unfitness or otherlike extraordinary circumstances' to justify the State's intrusion into the family domain" (id.at 529, quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; seeMatter of Archer W. v Commissioner of Social Servs., 173 AD2d 543 [1991]). The principlethat underlay our decision in Matter of Alfredo S. is simple and long recognized. "Themother or father has a right to the care and custody of a child, superior to that of all others,unless he or she has abandoned that right or is proved unfit to assume the duties and privileges ofparenthood" (People ex rel. Kropp v Shepsky, 305 NY 465, 468 [1953]; see Matterof Male Infant L., 61 NY2d 420, 426 [1984]; Matter of Bennett v Jeffreys, 40 NY2dat 546; Matter of Kreger v Newell, 221 AD2d 630 [1995]; Matter of Commissionerof Social Servs. of City of N.Y. [Sarah P.], 216 AD2d 387 [1995]).
This principle underlies the Interstate Compact on the Placement of Children (hereinafter theICPC) as well. The ICPC applies only where a child is sent, brought or caused to be brought intoa state by a "sending agency" for "placement in foster care or as a preliminary to a possibleadoption" (Social Services Law § 374-a [1] [art III] [a]). It explicitly excludes from itsambit, among other things, "[t]he sending or bringing of a child into a receiving state by hisparent" (Social Services Law § 374-a [1] [art VIII] [a]). Applying these principles here,the ICPC does not apply.
First, the father is not a sending agency within the meaning of the ICPC. He is Tumari'sparent. His decision to relocate to St. Thomas does not alter that status.
Although ACS would be a sending agency had it taken any action with respect to Tumari'srelocation, it did not. The majority's conclusion that it did is predicated on its characterization ofTumari's emergency residence with his older sister as a placement in kinship foster care. ACSdid not "place" Tumari with the sister, however, in any meaningful sense, at least on the recordbefore us. All that we know, from a comment on the record, is that with the consent of themother, Tumari was living with the sister at the time of the initial appearance. There is nothingin the record that explains how Tumari came to live with the sister or what the intentions of ACSwere with respect to Tumari's continuing care during the proceedings that would follow. In fact,ACS readily assented to the release of Tumari to his father. To call this situation "kinship fostercare" overstates the significance of what happened here and elevates a temporary expedient to alegal predicate for the application of the ICPC.
Perhaps more significantly, the role of ACS in determining Tumari's fate had ended evenbefore the relocation became an issue. By the time the mother raised her objection, ACS hadcompleted its investigation and had represented to the Family Court that there was no basis todeny custody to the father, the Family Court had Ordered ACS to release Tumari to his father,and ACS had agreed that it would do so. Nothing in this conduct evinces any intent on the part ofACS to "send" Tumari anywhere [*5]other than to live with hisfather. At most, ACS knew that the father intended to relocate when it made its finding that thefather posed no risk to Tumari. Neither that fact, nor the father's parental decision to relocate,implicates the ICPC.
Even if what happened here does constitute a "sending" by an agency within the meaning ofthe ICPC, however, the ICPC still does not apply. Neither the father nor ACS was sendingTumari to St. Thomas for "placement in foster care or as a preliminary to a possible adoption," asthe ICPC requires (Social Services Law § 374-a [1] [art III] [a]). The father's intent, to theextent that it is apparent on the record, is to bring Tumari to St. Thomas to live as part of hisfamily. There is nothing in the record from which it could be concluded that Tumari's livingsituation thereafter would involve foster care or adoption. That alone defeats any claim to theapplication of the ICPC.
Matter of Shaida W. (85 NY2d 453 [1995]) and its progeny, Matter of Faison vCapozello (50 AD3d 797 [2008]), Matter of Ryan R. (29 AD3d 806 [2006]), andMatter of Keanu Blue R. (292 AD2d 614 [2002]), upon which ACS predicates itsconcession here, do not require a contrary result, or even suggest that such a result would beappropriate. In each of those cases, unlike the situation presented here, ACS had custody of thechild prior to the relocation and the party seeking to relocate the child was either not the child'sparent or a parent who had, for some reason, been deemed of diminished parental capacity. InMatter of Shaida W., for example, the Commissioner of Social Services had custody ofthe children pursuant to a Family Court order, and it was the children's grandmother, in whosefoster care the Commissioner wished to place them, who expressed her intent to move toCalifornia. Matter of Ryan R. involved the release of the children to their paternal auntand uncle in New Jersey. Although Matter of Keanu Blue R. involved the release of thechild to his mother, she was to remain under the authority of Ohio child welfare authorities for12 months. Similarly, in Matter of Faison v Capozello, the record contained evidence ofextraordinary circumstances overcoming the father's right to custody. There are no suchcircumstances here and, in fact, ACS conceded before the Family Court that the father was anappropriate custodian.
There is, to be sure, a dispute outside New York as to the role of the ICPC in regulating therelocation of children with noncustodial parents (see Bester v Lake County Off. of Family &Children, 839 NE2d 143, 145 n 2 [Ind 2005]; compare In re Alexis O., 157 NH 781,959 A2d 176 [2008], McComb v Wambaugh, 934 F2d 474, 479-482 [1991] andArkansas Dept. of Human Servs. v Huff, 347 Ark 553, 65 SW3d 880 [2002], with Greenv Division of Family Servs., 864 A2d 921 [2004] [Del], Arizona Dept. of Economic Sec.v Leonardo, 200 Ariz 74, 22 P3d 513 [2001] and Adoption of Warren, 44 Mass AppCt 620, 693 NE2d 1021 [1998]). That dispute does not extend, however, to the situationpresented here. As the advisory regulations adopted by the Association of Administrators of theInterstate Compact on the Placement of Children provide, "[t]he Compact does not applywhenever a court transfers the child to a non-custodial parent with respect to whom the courtdoes not have evidence before it that such parent is unfit, does not seek such evidence, and doesnot retain jurisdiction over the child after the court transfers the child" (Association ofAdministrators of the Interstate Compact on the Placement of Children,http://icpc.aphsa.org/Home/regulations.asp [Regulation 3 (6) (b), eff July 2, 2001]).
That is precisely the situation presented here. ACS was required to release Tumari to hisfather pursuant to Matter of Alfredo S. by a Family Court order that neither soughtfurther information nor retained any jurisdiction. ACS recognized its obligation to Tumari'sfather and agreed to release Tumari to him even before the Family Court order was issued. Thus,what the majority regards as a "problematic" lack of a record is precisely the basis upon whichthe Family Court acted—the determination, however informal, by ACS that there was noimpediment to the release of Tumari to his father. A record is necessary, in any event, only tokeep a child from his or her parent, not to allow the child to be with the parent (see People exrel. Kropp v Shepsky, 305 NY at 468; see also Matter of Male Infant L., 61 NY2d at426; Matter of Bennett v Jeffreys, 40 NY2d at 546; Matter of Kreger v Newell,221 AD2d 630 [1995]; Matter of Commissioner of Social Servs. of City of N.Y. [SarahP.], 216 AD2d 387 [1995]).
While Tumari's mother had every right to object to the father's intended relocation and shewould be entitled, upon properly raising that objection, to a hearing to determine whether therelocation is in Tumari's best interest (see Matter of Tropea v Tropea, 87 NY2d 727[1996]), that is not the issue here. [*6]That issue is betweenTumari's parents. Neither ACS nor any other state has any legal interest, and the ICPC plays norole, in its resolution.
While I would thus affirm the order of the Family Court, I would not immediately vacate thestay of its enforcement. The circumstances of this case include the fact that Tumari's father hasnot participated in this appeal. Since Tumari's father expressed his intent to have relocated to St.Thomas by now and, due to his failure to appear on the appeal, it is not possible for us toascertain whether he is still available to take custody of Tumari, I would continue the stay toallow the Family Court to ascertain whether it is still appropriate to release Tumari to his fatherand to allow the mother to seek custody, or at least a Tropea hearing (id.), shouldshe still desire to do so.