| Matter of Skyler C. (Satima C.) |
| 2013 NY Slip Op 03325 [106 AD3d 816] |
| May 8, 2013 |
| Appellate Division, Second Department |
| In the Matter of Skyler C. Administration for Children'sServices, Respondent; Satima C., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Kathy H. Chang of counsel), for respondent. Steven Banks, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine ofcounsel), attorney for the child.
In a child neglect proceeding pursuant to Family Court Act article 10, the motherappeals from (1) an order of disposition of the Family Court, Queens County (Arias, J.),dated January 18, 2012, which, upon an order of the same court also dated January 18,2012, granting the petitioner's motion for summary judgment on the issue of derivativeneglect and determining that the mother had derivatively neglected the subject child,placed the child under the supervision of the Commissioner of Social Services of the Cityof New York, subject to certain conditions, and (2) an order of the same court datedMarch 16, 2012, which, after a hearing, granted the petitioner's motion pursuant toFamily Court Act § 1039-b (b) (6) for a finding that reasonable efforts to reunitethe mother with the subject child were no longer required.
Ordered that the order of disposition dated January 18, 2012, is affirmed, withoutcosts or disbursements; and it is further,
Ordered that the order dated March 16, 2012, is affirmed, without costs ordisbursements.
On her appeal from the order of disposition, the mother challenges an order of theFamily Court which granted the motion of the petitioner, Administration for Children'sServices (hereinafter ACS), for summary judgment on the issue of derivative neglect, anddetermined that she had derivatively neglected the subject child. ACS's motion wasproperly granted because ACS established its prima facie entitlement to that relief, andthe mother failed to raise a triable issue of fact in opposition (see Matter of SuffolkCounty Dept. of Social Servs. v James M., 83 NY2d 178, 182-183 [1994]; Matter of Justin P., 50 AD3d802, 803 [2008]).
The Family Court properly relieved ACS of its obligation to make reasonable efforts[*2]to reunite the mother with the child under FamilyCourt Act § 1039-b. That section of the Family Court Act was enacted as part ofan effort to bring New York into compliance with the Federal Adoption and SafeFamilies Act of 1997, as amended (Pub L 105-89, 111 US Stat 2115) (see Matter ofDashawn W. [Antoine N.], 21 NY3d 36, 51 [2013]; Matter of MarinoS., 100 NY2d 361, 369 [2003]; Assembly Mem in Support, 1999 McKinney'sSession Laws of NY at 1485). Under section 1039-b of the Family Court Act, a court,upon motion of a social services official, may make a finding that "reasonable efforts toreturn the child to his or her home are no longer required" (Family Ct Act § 1039-b[a]; see also Family Ct Act § 352.2 [2] [c]; Matter of Dashawn W.[Antoine N.], 21 NY3d 36, 51 [2013]). Additionally, in accord with the federalstatute, the Family Court "shall" make that finding when it determines that any one ofcertain enumerated circumstances exists (compare Family Ct Act § 1039-b[b] [1]-[6] with 42 USC § 671 [a] [15] [D] [i]-[iii]). As relevant here, oneof those circumstances is that "the parental rights of the parent to a sibling of such childhave been involuntarily terminated" (Family Ct Act § 1039-b [b] [6]). The NewYork law is not, however, absolute, as it provides an exception, even in the presence ofan enumerated circumstance:
"reasonable efforts to make it possible for the child to return safely to his or herhome shall not be required where the court determines that
"[an enumerated circumstance exists];
"unless the court determines that providing reasonable efforts would be in the bestinterests of the child, not contrary to the health and safety of the child, and would likelyresult in the reunification of the parent and the child in the foreseeable future" (Family CtAct § 1039-b [b]).
Here, contrary to the mother's contention, ACS established that the mother's parentalrights with respect to a sibling of the subject child had been terminated "involuntarily"(Family Ct Act § 1039-b [b] [6]; compare Social Services Law§§ 383-c, 384, with Social Services Law § 384-b). In supportof its motion, ACS submitted the judgments terminating the mother's parental rights withrespect to the child's two elder siblings (see Matter of Ronald Anthony G., 60 AD3d 482, 483[2009]). In opposition to ACS's motion, the mother failed to prove that "reasonableefforts" should nonetheless still be required under the exception provided for in FamilyCourt Act § 1039-b (b). We reject the mother's contention that the statute placesthe burden on the social services official to establish the inapplicability of the exception,rather than on the parent to establish its applicability. Rather, we agree with the otherdepartments of the Appellate Division, which have rejected the mother's interpretation ofthe statute with respect to parents whose parental rights were involuntarily terminated(see Family Ct Act § 1039-b [b] [6]; Matter of Harmony P. v Christopher Q., 95 AD3d 1608,1609 [2012]; Matter of Jacob E.[Valerie E.], 87 AD3d 1317, 1318 [2011]; Matter of Ronald AnthonyG., 60 AD3d at 483). Given the text of the statute, as well as its structure, whichmake the exception applicable to all six enumerated circumstances, some of whichinvolve egregious conduct by the parent, the only reasonable interpretation is that oncethe social services official establishes the existence of an enumerated circumstance, theburden shifts to the parent to establish the applicability of the exception. Here, the motherfailed to satisfy this burden.
The mother's remaining contention is without merit. Skelos, J.P., Balkin, Cohen andMiller, JJ., concur.