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In re Tumari W.

September 29, 2009

IN THE MATTER OF TUMARI W. (ANONYMOUS).
ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT;
v.
LYNELL W. (ANONYMOUS), APPELLANT; ANDRE M. (ANONYMOUS), NONPARTY-RESPONDENT.



In a child protective proceeding pursuant to Family Court Act article 10, the mother, Lynell W., appeals from an order of the Family Court, Richmond County (McElrath, J.), dated January 14, 2009, which, without a hearing, authorized the Administration for Children's Services to release the subject child to his father, the nonparty Andre M.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, PLUMMER E. LOTT and LEONARD B. AUSTIN, JJ.

(Docket No. 6342-08)

DECISION & ORDER

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is 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 (see Family Ct Act § 1027), the child was placed with the Commissioner of the Administration for Children's Services (hereinafter ACS), who placed the child in kinship foster care with a 28-year-old adult sister. At a court appearance on December 9, 2008, the mother stated that it was "acceptable to her" that the child remain with her older daughter, but she wanted ACS to explore placing the child temporarily with his father, the nonparty Andre M. She also reserved her right to request a hearing pursuant to Family Court Act § 1028 for return of the child to her. The court directed ACS to investigate the father as a possible resource. The father, who was present in court, stated that he intended to return with the child to his house in St. Thomas in the United States Virgin Islands.

At the next court appearance on January 12, 2009, the attorney for ACS recommended that it was 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 mother objected to the placement of the child with his father, inter alia, on the ground that she felt his home in St. Thomas was not suitable. The attorney for the child was not present, having previously informed the court that he had injured his ankle and would not be able to appear.

Over the mother's objection, the Family Court authorized ACS to release the subject child to his father pursuant to what it characterized as the "privilege of parole." The mother's application to direct the father not to remove the child from New York State was denied on the ground that the father was not a party to the neglect proceeding, and the Family Court did not "have the authority to enter an order against him." The Family Court stayed enforcement of its order to allow the mother to seek appellate review and "allow the law guardian time to object and seek appellate review." We reverse.

As ACS correctly concedes, the Family Court improperly authorized ACS to release the child from its care to the care of the father, who intended to take him out-of-state, over the mother's objection, without the attorney for the child present, without conditions, and without seeking information about the father's home in St. Thomas pursuant to the Interstate Compact for Placement of Children (Social Services Law § 374-a[1] [hereinafter the ICPC]; see Matter of Shaida W., 85 NY2d 453; Matter of Faison v Capozello, 50 AD3d 797; Matter of Keanu Blue R. , 292 AD2d 614; Social Services Law § 374-a, art III [a-d]). Article VIII(a) of the ICPC states that the ICPC does not apply to "[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 Services Law § 374-a). However, that provision does not apply to the facts of this case. As noted by the Court of Appeals in Matter of Shaida W. (85 NY2d 453), the "sending agency" 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 a parent, on the ground that those cases involved a parent "deemed of diminished parental capacity" (see Matter of Faison v Capozello, 50 AD3d 797; Matter of Keanu Blue R., 292 AD2d 614). However, in Matter of Faison v Capozello, the father was found to be unsuitable after an investigation pursuant to the ICPC. In Matter of Keanu Blue R., we found that the Family Court erred in releasing the child to the mother in Ohio without compliance with the ICPC. Contrary to the conclusion of the dissent, this line of cases mandates reversal.

Matter of Alfredo S. v Nassau County Dept. of Social Servs. (172 AD2d 528), relied upon by the Family Court and the dissent, is distinguishable. In that case, the father 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 the child by virtue of living with the child prior to the removal of the child from the mother's custody. Rather, his status is that of a nonparty absentee father.

The dissent asserts that the release of the child to the nonrespondent father was proper pursuant to certain advisory regulations of the ICPC, which state that "[t]he Compact does not apply whenever a court transfers the child to a non-custodial parent with respect to whom the court does not have evidence before it that such parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child" (Association of Administrators of the Interstate Compact on the Placement of Children, http://icpc.aphsa.org/Home/regulations.asp [Regulation 3(6)(b), 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 A2d 921, 928 [Del]). Moreover, the regulation does not prohibit the Family Court from seeking further evidence of whether the non-custodial parent, or his or her home, is fit. An issue in this case, reviewable on appeal, is whether the Family Court's failure to seek further evidence was proper. The Family Court's failure to seek further evidence in this case, including evidence pursuant to the ICPC, was improper. In addition, the Family Court's failure to seek input from the attorney for the child was improper.

As noted by the dissent, there is conflicting authority among the various jurisdictions in the nation as to whether the ICPC applies to reunification of a child with a non-custodial parent (see Bester v Lake County Office of Family and Children, 839 NE2d 143, 145, n 2 [Ind]). However, New York State is squarely among those jurisdictions which apply the ICPC to a non-custodial parent (see Matter of Shaida W., 85 NY2d 453; Matter of ...


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