| Matter of Paul Z. (Karen AA.\MPaul N.) |
| 2009 NY Slip Op 09567 [68 AD3d 1473] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Paul Z., a Child Alleged to be Severely Abused.Karen AA., Appellant; Paul N., Respondent. |
—[*1] Mitch Kessler, Cohoes, for respondent. Natalie B. Miner, Law Guardian, Homer.
Lahtinen, J. Appeal from an order of the Family Court of Albany County (Duggan, J.),entered October 9, 2008, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate respondent's child to beseverely abused.
Respondent, the father of Paul Z. (born in 2003), was convicted in 2005 of manslaughter inthe second degree for the death of the child's mother. In May 2004, respondent allegedlystrangled the child's mother in the child's presence (and the presence of another older child of themother). He then disposed of her body in a shallow grave where it was discovered about fivemonths later. In the interim and very shortly after the disappearance of the child's mother,petitioner, the child's maternal grandmother, filed a petition pursuant to Family Ct Act article 6seeking custody of the child. She was granted custody in June 2004 and the child, who was aboutone year old at the time of his mother's homicide, has lived continuously with petitioner for aperiod now exceeding five years. Petitioner commenced the current proceeding in 2008 allegingthat respondent's manslaughter conviction for the death of the child's mother established that hehad severely abused the child (see Social Services Law § 384-b [8] [a] [iii] [A])and that his parental rights should thus be terminated (see Social Services Law §384-b [4] [e]).[*2]
At the initial appearance, petitioner and respondent (viatelephone) were present with their attorneys, as well as the child's Law Guardian and an attorneyfrom the Albany County Department for Children, Youth and Families (hereinafter Department).The Department's attorney related to Family Court his opinion that, in light of respondent'sconviction, a finding that there was no requirement of reasonable efforts at reunification could bemade as part of the termination determination. The Department's attorney also indicated that hedid not believe that further involvement by the Department was necessary. Thereafter, petitionermoved for summary judgment terminating respondent's parental rights. The Law Guardian urgedthat petitioner's motion be granted. Respondent opposed the motion. Family Court observed that,since petitioner had custody under Family Ct Act article 6 rather than as a result of a Family CtAct article 10 placement, no authorized agency had made diligent efforts to promote respondent'srelationship with the child and there had not been an agency application for a judicialdetermination that diligent efforts were not necessary. This led the court to conclude thatpetitioner lacked standing and, thus, the court denied the motion and dismissed the petition (21Misc 3d 864 [2008]). Petitioner, supported by the Law Guardian, appeals.
In 2006, the Legislature "amend[ed] the [S]ocial [S]ervices [L]aw, in relation to terminationof parental rights on the grounds of homicide of a parent or a sibling of the child" (L 2006, ch460). The express purpose of the legislation was to "fill the gaps in the severe abuse statute" byproviding that, as to certain listed homicide convictions, "[e]ach of these convictions would thusconstitute grounds for terminating parental rights and would be included in the categories ofcases for which filing of such petitions would be presumptive" (Senate Mem in Support, 2006McKinney's Session Laws of NY, at 1930; see Mem of Legis Rep of City of NY, 2006McKinney's Session Laws of NY, at 1931; Rep of Family Ct Advisory and Rules Comm, 2006McKinney's Session Laws of NY, at 2464). Severe abuse elements under the pertinent provisioninclude, first, showing the person perpetrated one of the various listed heinous acts (seeSocial Services Law § 384-b [8] [a] [i], [ii], [iii]) and, second, establishing that diligentefforts toward reunification have been made by an agency or judicially waived upon applicationby the agency (see Social Services Law § 384-b [8] [a] [iv]). The reasonableefforts requirement may be waived when the agency shows, among other things, that the childwas subjected to "aggravated circumstances" (Family Ct Act § 1039-b [b] [1]), whichincorporate the acts listed in subdivision(8) of Social Services Law § 384-b (seeFamily Ct Act § 1012 [j]).
Here, it is undisputed that respondent was convicted of a crime that satisfied the first elementof severe abuse. The problem, as explained by Family Court, is that the Department did notengage in reasonable efforts at reunification or apply for a judicial waiver of that requirement.The apparent reason for the Department's lack of action in such regard is that the child came intothe custody of petitioner under Family Ct Act article 6 almost immediately after his mother'sdisappearance and petitioner has continuously cared for the child, thus obviating any need for theDepartment to act. And, as reflected by the comments of the Department's attorney at the initialappearance in this matter, the Department ostensibly believed Family Court could rule on themerits of the petition without its involvement. We agree with Family Court that the requestedtermination of parental rights cannot occur consistent with the statute in the absence of a role bythe Department, and thus summary judgment was properly denied. However, we find thatdismissal of the petition was not necessary under the narrow circumstances presented by thisproceeding.
The statute provides that a proceeding under its provisions can be originated by "a [*3]relative with care and custody of the child" (Social Services Law§ 384-b [3] [b]). Although contained in a section not directly involved here, the statutenevertheless evinces an intent, in a situation where termination should be addressed and anagency has failed to act, to permit action by another interested party and joining the agency inthe proceeding (see Social Services Law § 384-b [3] [l] [iv]). Wherenecessary to effect the best interests of the child, directing participation by an agency isappropriate (see Family Ct Act § 255; cf. Matter of Dale P., 84 NY2d 72[1994]; Matter of Patricia HH. v Laura II., 200 AD2d 115 [1994]), and Family Court canrequire a necessary party to be joined (see CPLR 1001; Matter of Remillard vLuck, 2 AD3d 1179, 1180 [2003]; Matter of Tyrone G. v Fifi N., 189 AD2d 8, 15-16[1993]).
The Department's lack of participation apparently resulted from the fact that petitioner hadprovided sufficient care for the child and, as reflected by the comments of the Department'sattorney, the Department did not believe it was a necessary participant for termination toproceed. There is no indication the Department otherwise opposed participation or the reliefrequested. In order to avoid erecting unnecessary steps, creating new "gaps," and countenancingfurther delay in addressing this issue that bears on the best interests of the child (see Matterof Dale P., 84 NY2d at 78-79), the petition should be reinstated and the Department joinedas a party so that the reasonable efforts issue can be properly resolved. In such regard, thepetition can successfully proceed only if the Department—now that it knows it has anindispensable role if termination is to occur—decides that an application for a judicialwaiver of the reasonable efforts requirement is appropriate under the circumstances, such anapplication is made and Family Court grants that application. Respondent, of course, has theright to continue contesting all aspects of the proceedings.
Mercure, J.P., Peters, Kavanagh and Garry, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as dismissed the petition; petitionreinstated and matter remitted to the Family Court of Albany County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.