Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered March 5, 2010 in a proceeding pursuant to Family Court Act article 10. The order, among other things, determined the subject children to be neglected.
The opinion of the court was delivered by: Peradotto, J.:
Matter of Matter of Bridget Y. (Kenneth M.Y.)
Decided on December 30, 2011
Appellate Division, Fourth Department
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.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
It is hereby ORDERED that said appeal insofar as it concerns Colleen Y. and Kelly Y. is dismissed and the order is affirmed without costs.
Opinion by Peradotto, J.:
The primary issue raised in these appeals is whether Family Court properly exercised temporary emergency jurisdiction over the subject children pursuant to Domestic Relations Law § 76-c (3). Kenneth M.Y. and Rita S., the parents of the subject children (hereafter, parents), are the respondents in appeal No. 1 and two of the four respondents in appeal No. 2. In appeal No. 1, the parents appeal from an order of fact-finding and disposition determining, following a fact-finding hearing, that their children are neglected and placing the children in the custody of petitioner Chautauqua County Department of Social Services (DSS), the petitioner in appeal No. 1 and one of the four petitioners in appeal No. 2. In appeal No. 2, the parents appeal from a corrected order that, inter alia, denied their motion to vacate the order of fact-finding and disposition in appeal No. 1. The parents contend in both appeals that Family Court, Chautauqua County (hereafter, Family Court), lacked subject matter jurisdiction because New Mexico is the home state of the children, the neglect took place in New Mexico, and the parents are neither domiciliaries of nor otherwise significantly connected to New York State. Under the unique circumstances of this case, we conclude that the court properly exercised temporary emergency jurisdiction pursuant to section 76-c (3) inasmuch as the children are in imminent risk of harm, and we therefore conclude that both orders should be affirmed.
Factual Background and Procedural History
This matter involves multiple proceedings commenced in New York and New Mexico by various and overlapping parties, substantial motion practice, and numerous orders entered in New York and New Mexico. Although the appeals are limited to the neglect proceeding commenced by DSS in New York, an overview of the factual background and procedural history is necessary in order to assess the propriety of Family Court's assertion of temporary emergency jurisdiction pursuant to Domestic Relations Law § 76-c (3).
Respondent Kenneth M.Y. (hereafter, father), the biological father of the children, married respondent Rita S. (hereafter, stepmother), after the children's biological mother died in September 2001. The stepmother subsequently adopted the children. At some time between February 2007 and November 2007, the parents moved with the children from Pennsylvania to New Mexico.
On August 7, 2008, the parents were arrested and were each charged with seven counts of child abuse with respect to the children. The charges stemmed from allegations that the parents left Kelly and Colleen, then 15 years old, and Michaela, then 12 years old, unsupervised in a bug-infested trailer miles away from the family residence, with limited supplies and inadequate food for a period of six to eight weeks. It was further alleged that the parents, as a form of discipline, had confined each of the children to their bedrooms or to the garage for days, weeks, or months at a time. While confined to the garage, the children received only water, bread, peanut butter and a sleeping bag, and they were permitted to use the bathroom once or twice a day.
As a result of the criminal charges, a Magistrate Court in New Mexico ordered the parents to avoid all contact with the children. In light of the no-contact order, on August 11, 2008 the parents placed the children in the care of their "maternal step-aunt and uncle" (hereafter, aunt and uncle), Robin S. and Paul S., who are respondents in appeal No. 2. Robin S. signed a "safety contract" with the New Mexico Children, Youth and Families Department (CYFD), which states that the parents voluntarily placed the children in the care of the aunt and uncle and that the parents were "still legally responsible for the [children's] well-being." Robin S. agreed to prohibit any contact between the parents and the children and to advise the Dona Ana County District Attorney's Office in the event that the parents attempted to remove the children from her care or otherwise to contact the children in any way. Robin S. transported the children to her home in Chautauqua County, New York.
By letter dated September 22, 2008, CYFD notified the parents that it had closed its file concerning the children. The letter further stated that "[t]he Department believes that the voluntary placement of the children with Robin S[.] was in the best interests of the children. However, [the parents] are free to make changes in that voluntary placement if they choose to as they remain the legal custodians of their children. The Department has no legal authority with respect to the children at this time. The safety contract between the ...