| Matter of Sheena B. (Rory F.) |
| 2011 NY Slip Op 03594 [83 AD3d 1056] |
| April 26, 2011 |
| Appellate Division, Second Department |
| In the Matter of Sheena B., a Child Alleged to be Neglected.Administration for Children's Services, Respondent; Rory F., Respondent. Steven Banks, asAttorney for the Child, Nonparty Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and TahirihM. Sadrieh of counsel), for petitioner-respondent.
In a neglect proceeding pursuant to Family Court Act article 10, the attorney for the childappeals from an order of the Family Court, Kings County (Beckoff, J.), dated June 14, 2010,which, prior to a fact-finding hearing, granted the petitioner's application, in effect, pursuant toCPLR 3217 (b) for a voluntary discontinuance of the proceeding and dismissed the petition. Bydecision and order on motion dated June 24, 2010, this Court granted the motion of the attorneyfor the child to enjoin the petitioner from discharging the child from foster care pending hearingand determination of the appeal.
Ordered that the order dated June 14, 2010, is reversed, on the facts and in the exercise ofdiscretion, without costs or disbursements, the petitioner's application, in effect, pursuant toCPLR 3217 (b) for a voluntary discontinuance of the proceeding is denied, the petition isreinstated, and the matter is remitted to the Family Court, Kings County, for further proceedingsin accordance herewith.
The petitioner commenced this proceeding alleging that then-17 year old Sheena B. had beenneglected by her father, who refused to permit her to return to his home. Sheena was placed inthe custody of the petitioner pending a final order of disposition and was placed in a group homefor pregnant teens. After she gave birth, Sheena was placed in a mother and child program. Priorto the fact-finding hearing on the petition, the petitioner made an application, in effect, pursuantto CPLR 3217 (b) for a voluntary discontinuance of the proceeding on the ground that there wereno longer any child protective concerns since Sheena had turned 18 and there were no otherchildren named in the petition. The attorney for the child objected, stating that Sheena wished toconsent to a continuation of care, which she could only do if there was a finding of neglect. TheFamily Court stated that, since Sheena was 18 years old, it was "hard to see how the aid of thecourt . . . could be useful under [Family Ct Act § ] 1051 (c)." The FamilyCourt granted the application and dismissed the petition. The attorney for the child appeals.
Contrary to the contention of the attorney for the child, the Family Court granted the [*2]petitioner's application, in effect, pursuant to CPLR 3217 (b) for avoluntary discontinuance of the proceeding and dismissed the petition. The Family Court did notdismiss the petition pursuant to Family Court Act § 1051 (c), despite its reference to thatprovision (see Family Ct Act § 165; Matter of Rafael P., 185 Misc 2d 169,177 [2000]; Matter of Billy R., 103 Misc 2d 988, 991 [1980]). Accordingly, the casesholding that a dismissal pursuant to Family Court Act § 1051 (c) may not occur prior tocompletion of the fact-finding hearing are inapposite (see Matter of Edwin SS., 302AD2d 754 [2003]; cf. Matter of Chandler D., 16 AD3d 684 [2005]; Matter ofJonathan M., 306 AD2d 413 [2003]).
CPLR 3217 (b) provides that an action or proceeding may be discontinued "upon order of thecourt and upon terms and conditions, as the court deems proper." "[O]rdinarily a party cannot becompelled to litigate and, absent special circumstances, discontinuance should be granted.Particular prejudice to the [child] or other improper consequences flowing from discontinuancemay however make denial of discontinuance permissible or . . . [at times]obligatory" (Tucker v Tucker, 55 NY2d 378, 383-384 [1982]; see Matter of Bianchi vBreakell, 48 AD3d 1000 [2008]; Christenson v Gutman, 249 AD2d 805 [1998];Matter of Commissioner of Franklin County Dept. of Social Servs. v Terry M., 178AD2d 881 [1991]). Courts may deny discontinuance to protect the interests of the parties (seeMatter of Cowles, 22 AD2d 365, 370 [1965], affd 17 NY2d 567 [1966]). In mattersinvolving the welfare of a child, not only the parties to the action, but also the public, has aninterest in the continuation of the proceeding (see Winans v Winans, 124 NY 140 [1891];Matter of Rich v Kaminsky, 254 App Div 6 [1938]; People ex rel. Intner v Surles,149 Misc 2d 644 [1991]; Matter of Billy R., 103 Misc 2d at 991; Matter of JulieJ. v Edwin A., 86 Misc 2d 882 [1976]; Palmer v Palmer, 62 Misc 2d 73, 78 [1969]),and concern for the welfare of the child justifies denial of the motion (see Matter of Houck vGarraway, 293 AD2d 782 [2002]; People ex rel. Weissman v Weissman, 50 AD2d989 [1975]; Matter of Irene D. v Anthony D., 113 Misc 2d 561, 564 [1982]).
Here, the Family Court granted the petitioner's application based on the fact that Sheena hadturned 18. However, the Family Court has jurisdiction to adjudicate neglect petitions commencedprior to the child's 18th birthday even after the child turns 18 (see Matter of Jonathan M.,306 AD2d at 414; Ruskin v Rockland County Dept. of Social Servs., 162 Misc 2d 707,710-711 [1994]). Further, with the child's consent, a placement made after a neglect finding maybe continued until the child turns 21 years of age (see Family Ct Act § 1055 [e];§ 1087 [a]). Accordingly, the fact that Sheena turned 18 prior to the fact-finding hearingwas not, on its own, a reason to grant the application. Moreover, significant prejudice wouldaccrue to Sheena, since she would be discharged from foster care without services to which shewould be entitled upon a finding of neglect (cf. Social Services Law § 398 [6] [h];18 NYCRR 430.12 [f] [4] [i] [b]; Palmer v Cuomo, 121 AD2d 194 [1986]). Accordingly,the Family Court improvidently exercised its discretion in granting the petitioner's applicationover the objection of the attorney for the child (see Tucker v Tucker, 55 NY2d at383-384; Matter of Irene D. v Anthony D., 113 Misc 2d at 564). Florio, J.P., Balkin, Engand Leventhal, JJ., concur.