| Matter of Alexus M. v Jenelle F. |
| 2012 NY Slip Op 00211 [91 AD3d 648] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Alexus M. Administration for Children's Services,Respondent; Jenelle F., Appellant. |
—[*1] Steven Banks, New York, N.Y. (Tamara A. Steckler and Elana Roffman of counsel),attorney for the child.
In a neglect proceeding pursuant to Family Court Act article 10, the mother appeals from anorder of disposition of the Family Court, Kings County (Ambrosio, J.), dated July 8, 2010,which, upon a fact-finding order of the same court dated October 26, 2009, finding that thesubject child, Alexus M., was neglected, and after a dispositional hearing, terminated the custodyand supervision of the child by the Commissioner of Social Services, and awarded temporarycustody of the child to the father.
Ordered that the order of disposition dated July 8, 2010, is reversed, on the law, without costsor disbursements, and the matter is remitted to the Family Court, Kings County, for a newdispositional hearing, and a new disposition; and it is further,
Ordered that the child is remanded to the custody of the Commissioner of Social Servicespending the new dispositional hearing and new disposition.
The issue on this appeal is whether the Family Court properly disposed of a child protectivepetition by transferring custody of the subject child to a nonrespondent parent who lives inanother state. Under the circumstances presented, the order transferring custody of the child inthis case was improper.
The New York City Administration for Children's Services (hereinafter the ACS)commenced a child protective proceeding pursuant to Family Court Act article 10 against themother in 2008. The mother consented to the jurisdiction of the Family Court pursuant to FamilyCourt Act § 1051 (a), and a finding of neglect was entered with respect to the subject child.In July 2008, during the pendency of the proceeding, the subject child was removed from themother's home pursuant to Family Court Act § 1024, remanded to the custody of theCommissioner of Social Services (hereinafter the Commissioner), and placed in foster care. Atsome point after the proceeding was commenced, the nonrespondent father, who lives inVirginia, filed a petition for custody of the subject child.[*2]
The Family Court, after a hearing, issued an order ofdisposition which, inter alia, terminated the Commissioner's custody and supervision of thesubject child, and awarded temporary custody of the child to the father, pending furtherproceedings on the father's custody petition. The mother appeals from the order of disposition,contending that the Family Court erred in terminating the supervision of the child by theCommissioner and in granting temporary custody to the father.
Contrary to the contention of the attorney for the child, the mother objected to the proposeddisposition before the Family Court. Further, so much of the order of disposition as awardedtemporary custody to the father was issued in connection with both the father's custody petitionand the disposition of this child protective proceeding. Under these circumstances, the motherwas not required to seek leave to appeal from the order, and her appeal brings up for review somuch of the order as awarded temporary custody to the father (see Family Ct Act §1112 [a]).
The mother contends that she should be permitted to withdraw her consent to the jurisdictionof the Family Court with respect to the finding of neglect, since her consent was not validlyentered into (see Family Ct Act § 1051 [a]). However, the mother did not everrequest that relief before the Family Court (see Family Ct Act § 1051 [f]).Consequently, this contention is not properly before this Court (see Matter of Nasir H.,251 AD2d 1010 [1998]).
However, the order of disposition violated the provisions of the Interstate Compact on thePlacement of Children (hereinafter ICPC), codified at Social Services Law § 374-a. Astated purpose of the ICPC is to ensure that a child who is in the custody or supervision of aCommissioner of Social Services will not be placed in another state with an inappropriateresource (see Matter of Shaida W., 85 NY2d 453, 458 [1995]; Matter of Melinda D., 31 AD3d24, 30 [2006]). The state that is to receive a child must be provided with a "full opportunityto ascertain the circumstances of the proposed placement, thereby promoting full compliancewith applicable requirements for the protection of the child" (Social Services Law § 374-a[1] [art I (b)]). Article III of the ICPC provides that the sending agency shall furnish the receivingstate with written notices, so that the appropriate child welfare authorities in the receiving statecan determine whether the proposed placement is consistent with the interests of the child(see Social Services Law § 374-a [1] [art III (b), (d)]). That article further providesthat a child "shall not be sent, brought, or caused to be sent or brought into the receiving stateuntil the appropriate public authorities in the receiving state shall notify the sending agency, inwriting, to the effect that the proposed placement does not appear to be contrary to the interestsof the child" (Social Services Law § 374-a [1] [art III (d)]). The "physical transfer of thechild to the receiving state is not to occur at all absent full compliance with Social Services Law§ 374-a, including the transmittal of the required written notices to the receiving state andthe approval of the proposed placement by the receiving state" (Matter of Melinda D., 31AD3d at 30).
Here, the order of disposition terminated the custody and supervision of the subject child bythe Commissioner, and temporarily awarded custody to the father, who lives in Virginia. Wherethe custody of a child who is under the supervision of the Commissioner is transferred to thecustody of a parent or relative in another state, the provisions of the ICPC apply (see Matter of Tumari W., 65 AD3d1357, 1360 [2009]; Matter ofFaison v Capozello, 50 AD3d 797, 798 [2008]; see also Matter of Keanu BlueR., 292 AD2d 614 [2002]).
It is undisputed that the relevant authorities in Virginia did not approve the proposedplacement of the subject child pursuant to the ICPC. Consequently, the order terminatingsupervision of the child by the Commissioner and awarding temporary custody to the father wasimproper (see Matter of Tumari W., 65 AD3d at 1360; Matter of Faison vCapozello, 50 AD3d at 798). Accordingly, the child must be remanded to the supervision ofthe Commissioner, pending a new dispositional hearing and new disposition (see FamilyCt Act § 1027 [b]; see also Family Ct Act § 1073).
The mother's contentions regarding her younger child, who was initially the subject of aneglect proceeding, are not properly before this Court, as the neglect petition with respect to theyounger child was withdrawn by the ACS, and the mother does not appeal from any custodyorder issued with respect to the younger child. Rivera, J.P., Roman, Sgroi and Cohen, JJ., concur.