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In re Angela F.

Supreme Court of New York, Third Department

January 26, 2017

In the Matter of ANGELA F., Appellant,
v.
ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. (And Five Other Related Proceedings.)

         Calendar Date: November 16, 2016

          Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.

          David D. Willer, St. Lawrence County Department of Social Services, Canton, for respondent.

          Reginald Bedell, Elizabethtown, attorney for the children.

          Before: Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

          MEMORANDUM AND ORDER

          Clark, J.

         Appeals from two orders of the Family Court of St. Lawrence County (Morris, J.), entered August 6, 2015, which dismissed petitioner's applications, in proceedings pursuant to Family Ct Act articles 10 and 6, to, among other things, enforce a prior order of visitation.

         These appeals present the Court with a tragic situation in which Family Court's repeated judicial errors have contributed to the prolonged separation of petitioner (hereinafter the mother) and two of her children (born in 2003 and 2005) (Matter of Desirea F. [Angela F.], 137 A.D.3d 1519');">137 A.D.3d 1519 [2016]; Matter of Desirea F. [Angela F.], 136 A.D.3d 1074 [2016]; Matter of Dakota F. [Angela F.], 110 A.D.3d 1151 [2013], lv denied 22 N.Y.3d 1015');">22 N.Y.3d 1015 [2013]; Matter of Dakota F. [Angela F.], 92 A.D.3d 1097');">92 A.D.3d 1097 [2012]). The mother's son and daughter were adjudicated to have been neglected in 2004 and 2006, respectively. The children were removed from the mother's care and placed in foster care in December 2007 and they were again adjudicated to be neglected in 2008. While the children were initially placed in several different foster homes, they have continuously resided together with the same foster parents since 2011. In September 2009, respondent submitted a permanency hearing report recommending that the permanency goal be changed to placement for adoption, and, after a hearing, Family Court (Potter, J.) erroneously imposed the concurrent and inherently contradictory permanency goals of return to parent and free for adoption (Matter of Dakota F. [Angela F.], 92 A.D.3d at 1098-1099). In 2010, respondent commenced permanent neglect proceedings against the mother, but the underlying permanent neglect petitions were subsequently withdrawn and replaced with petitions seeking to terminate the mother's parental rights to the children based on mental illness (see Social Services Law § 384-b [4] [c]). In September 2011, following a hearing, Family Court adjudicated the mother to be a mentally ill parent unable to parent her children, and terminated her parental rights to the children. In October 2011, the mother last visited with the children.

         In October 2013, upon the mother's appeals, this Court reversed the orders terminating the mother's parental rights and dismissed the underlying petitions (Matter of Dakota F. [Angela F.], 110 A.D.3d at 1154). Shortly thereafter, the mother commenced the instant Family Ct Act article 6 and article 10 proceedings seeking, in essence, to reestablish contact with the children. In January 2014, notwithstanding the mother's request that she be permitted contact - in any form - with the children pending a hearing on her petitions, Family Court (Morris, J.) refused such request on the basis that the mother had not had contact with the children "in excess of two years" and did not allow any form of contact.

         Meanwhile, during the pendency of these proceedings, respondent commenced permanent neglect proceedings against the mother seeking to again terminate her parental rights to the children [1]. A permanency hearing was held in February 2014 and, in June 2014 orders, Family Court changed the permanency goal from return to parent to free for adoption and such goal was continued in permanency orders issued in September 2014. Emphasizing the inadequacy of the record, the absence of meaningful efforts on the part of respondent and Family Court's failure to even inquire as to the mother's current situation, this Court ultimately reversed so much of the June 2014 and September 2014 permanency orders that modified the permanency goal (Matter of Desirea F. [Angela F.], 136 A.D.3d at 1076-1077).

         In September 2014, roughly eight months after the mother had commenced the instant proceedings, Family Court began hearing proof on the petitions relating to the children [2]. The hearing continued piecemeal over the course of seven months and, on March 16, 2015, the proof was closed. However, the parties were given time to submit written summations. On June 26, 2015, roughly 20 months after the mother filed the instant petitions, Family Court dismissed the petitions in a bench decision, and, on August 6, 2015, orders were entered thereon. The mother appeals. [3]

         The mother argues that Family Court should have permitted her some form of contact with the children following this Court's October 2013 determination reversing the orders that terminated her parental rights to the children [4]. At the outset, we must address Family Court's flawed understanding of the legal effect of our October 2013 order reversing the orders that terminated the mother's parental rights to the children. Inexplicably, Family Court incorrectly and repeatedly stated on the record that there was no declaration by this Court that the mother's parental rights or any prior orders were reinstated and that the mother was mistaken that her parental rights had been restored.

         It is fundamental that the reversal of an order upon appellate review restores the party who prevailed on appeal to the position that he or she enjoyed prior to entry of the order appealed from (see Taylor v New York Life Ins. Co., 209 NY 29, 34 [1913]; Doomes v Best Tr. Corp., 126 A.D.3d 629, 630 [2015]; 5 NY Jur 2d, Appellate Review § 834; 10A Carmody-Wait 2d § 70:504). Contrary to Family Court's statements, this Court's October 2013 order did reinstate the mother's parental rights and restored her to the position that she was in prior to the erroneous termination of her parental rights. It appears from the record that, at such time, the mother had been afforded supervised visitation with the children once a week. Accordingly, upon the reinstatement of her parental rights, the mother was, at a minimum, entitled to the restoration of the visitation that she was afforded prior to the termination, unless it could be demonstrated by respondent that there were "'compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child[ren]'s welfare'" (Matter of Victoria X., 34 A.D.3d 1117, 1118 [2006], lv denied 8 N.Y.3d 806');">8 N.Y.3d 806 [2007], quoting Matter of Sullivan County Dept. of Social Servs. v Richard C., 260 A.D.2d 680, 682 [1999], lv dismissed 93 N.Y.2d 958');">93 N.Y.2d 958 [1999]; see Matter of Paige WW. [Charles XX.], 71 A.D.3d 1200, 1204 [2010]).

         Although the mother commenced these proceedings shortly after this Court's October 2013 order reinstating her parental rights, [5] Family Court improperly imposed upon the mother the burden of proving that visitation would be in the children's best interests. Visitation with a noncustodial parent is presumed to be in a child's best interests (see Matter of Duane FF. [Harley GG.], 135 A.D.3d 1093, 1094 [2016], lv denied27 N.Y.3d 904');">27 N.Y.3d 904 [2016]; Matter of Luka OO. [Travis PP.], 114 A.D.3d 1056, 1057 [2014]). Rather than imposing the burden of proof on the mother, Family Court should have placed the burden on respondent to demonstrate that visitation would be detrimental or harmful to the children (see generally Family Ct Act §§ 1030 [c]; 1082 [4]). Together, Family Court's many procedural missteps and misapplications of law, including its failure to apply the proper burden of proof (see Matter of Lonobile v ...


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