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In re Victoria XX.

Supreme Court of New York, Third Department

October 17, 2013

In the Matter of VICTORIA XX. and Others, Alleged to be Neglected Children. SCHUYLER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; and THOMAS XX., Appellant. TOMPKINS COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (Proceeding No. 1.) In the Matter of VICTORIA XX. and Others, Alleged to be Neglected Children. SCHUYLER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; and TAMMY XX., Appellant. TOMPKINS COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (Proceeding No. 2.)

Calendar Date: September 4, 2013

Kelly M. Corbett, Fayetteville, for Thomas XX., appellant.

John J. Raspante, Utica, for Tammy XX., appellant.

Kristin Hazlitt, Schuyler County Department of Social Services, Watkins Glen, for Schuyler County Department of Social Services, respondent.

Keith I. Cassidy, Tompkins County Department of Social Services, Ithaca, for Tompkins County Department of Social Services, respondent.

Natalie B. Miner, Homer, attorney for the children Francisco Berry, Ithaca, attorney for the child.

Mark A. Schaeber, Liverpool, attorney for the child.

Before: Peters, P.J., Rose, Lahtinen and Garry, JJ.

MEMORANDUM AND ORDER

Garry, J.

Appeals from two orders of the Family Courts of Schuyler County and Tompkins County (Sherman, J.), entered June 6, 2012 and July 10, 2012, which partially granted petitioner's applications, in two proceedings pursuant to Family Ct Act article 10, to adjudicate the subject children to be neglected.

Respondents are the aunt and uncle of a niece (born in 2001) and nephew (born in 2003) who had previously been freed for adoption after they were adjudged to be permanently neglected by their parents (see generally Matter of Shania D. [Peggy E.], 82 A.D.3d 1513 [2011]). In 2009, they were placed by the Family Court of Tompkins County (Sherman, J.) in the custody of respondents, who planned to adopt them. Thereafter, they resided in Schuyler County with respondents and respondents' three children. In October 2011, one of respondents' daughters — then age 16 — told a school counselor that her father (i.e., the uncle) had physically abused her as well as the nephew [1]. Following an investigation, petitioner commenced these proceedings in Schuyler County pursuant to Family Ct Act article 10, alleging that respondents had neglected the niece, nephew, the daughter and another of respondents' children.

In January 2012, the attorney for the niece and nephew moved in the Family Court of Tompkins County (Sherman, J.) to modify the prior existing permanency plan by returning the niece and nephew to the custody of the Tompkins County Department of Social Services (hereinafter Tompkins DSS). The motion was granted, and the niece and nephew were removed from respondents' care and placed with foster parents. Thereafter, the Tompkins County permanency proceedings and the Schuyler County neglect proceedings were consolidated to be heard in Schuyler County. Following a fact-finding hearing, the court concluded that respondents had neglected the nephew only, and transferred the proceedings to Tompkins County for disposition. Family Court conducted a hearing and then ordered the nephew to be placed in the custody and guardianship of Tompkins DSS pending placement for adoption. Respondents appeal.

Contrary to respondents' claim, a hearing was not required relative to the January 2012 motion to remove the niece and nephew from their custody. Family Ct Act § 1027 did not apply, as the motion was not made as part of the Family Ct Act article 10 neglect proceedings in Schuyler County, but instead as part of the original permanent neglect proceedings in the Family Court of Tompkins County, pursuant to Social Services Law § 384-b and Family Ct Act article 6, part 1. Where, as here, a child is placed with a relative in such proceedings, Family Court "retain[s] continuing jurisdiction over the parties and the child and may... modify or extend its order, if the... relative fails to institute a proceeding for the adoption of the child within six months after the entry of the order" (Social Services Law § 384-b [3] [a]). The 2009 orders by which the niece and nephew were placed with respondents provided that adoption proceedings would be filed within six months, but no such proceedings had been commenced at the time of the January 2012 motion. Respondents contend that this delay was explained in part by an appeal in the permanent neglect proceedings — resolved in March 2011 — and that adoption papers were being prepared by their attorney when the January 2012 motion was made. Nonetheless, no hearing was required, and the Family Court of Tompkins County did not err in exercising its continuing jurisdiction to modify the placement of the niece and nephew.

Respondents next contend that the record does not support the conclusion that they neglected the nephew. Whether a parent or caretaker has neglected a child by failing to exercise the requisite "minimum degree of care" (Family Ct Act 1012 [f] [i] [B]) depends upon whether "a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances then and there existing... tak[ing] into account the special vulnerabilities of the child" (Nicholson v Scoppetta, 3 N.Y.3d 357, 370 [2004] [internal citation omitted]; see Matter of Izayah J. [Jose I.], 104 A.D.3d 1107, 1109 [2013]; Matter of Kaleb U. [Heather V.—Ryan U.]77 A.D.3d 1097, 1098-1099 [2010]). Failure to respond appropriately to a child's special needs may constitute neglect "even when those needs may not seriously implicate general physical health" (Matter of Sayeh R., 91 N.Y.2d 306, 315 [1997]). Here, the nephew was diagnosed with posttraumatic stress disorder and pervasive development disorder, and was enrolled in a special education program. His treating psychotherapist testified that his disorders are characterized by hypervigilance, ...


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