In the Matter of MILANI X., Alleged to be a Neglected Child. SULLIVAN COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; KATIE Y., Appellant.
Calendar Date: February 16, 2017
Ferrara, Monticello, for appellant.
Alexandra Bourne, Sullivan County Department of Social
Services, Monticello, for respondent.
Perlmutter, Woodridge, attorney for the child.
Before: Peters, P.J., Lynch, Rose, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Sullivan County
(McGuire, J.), entered June 15, 2016, which, in a proceeding
pursuant to Family Ct Act article 10, denied respondent's
motion to dismiss the petition.
is a resident of New York and, in May 2016, gave birth to a
daughter at a hospital in Pennsylvania. Allegations emerged
that respondent had used drugs during the pregnancy and that
the child was experiencing withdrawal following her birth,
prompting petitioner to commence the present neglect
proceeding while the child was still hospitalized. Respondent
moved to dismiss the proceeding upon, among other things, the
ground that Family Court lacked subject matter jurisdiction
to adjudicate a child who had never lived in New York to be
neglected. Family Court denied the motion and respondent now
affirm. Family Court is granted "original jurisdiction
over [neglect] proceedings" (Family Ct Act § 1013
[a]; see NY Const, art VI, § 13 [b]), and its
subject matter jurisdiction does not depend upon the situs of
the neglect (see Matter of Westchester County Dept.
of Social Servs., 211 A.D.2d 235, 238 ). Subject matter
jurisdiction does, however, depend upon satisfying the
standards put in place by the Uniform Child Custody
Jurisdiction and Enforcement Act (see Domestic
Relations Law art 5-A [hereinafter UCCJEA]; see also
Matter of Hadley C. [David C.], 137 A.D.3d 1524, 1524
; Matter of Destiny EE. [Karen FF.], 90 A.D.3d
1437, 1439 , lv dismissed 19 N.Y.3d 856');">19 N.Y.3d 856
). Several bases exist for the exercise of subject
matter jurisdiction in a new neglect proceeding, the first
being that New York is "the home state of the child on
the date of the commencement of the proceeding"
(Domestic Relations Law § 76  [a]) . The home
state of a child less than six months old, such as the child
here, is "the state in which the child lived from birth
with" a parent or person acting as a parent (Domestic
Relations Law § 75-a ).
to the facts of this case, respondent and the child's
father resided in Sullivan County and intended to relocate to
New York City after the child's birth. Respondent gave
birth in a Pennsylvania hospital, however, and the child was
still hospitalized when this proceeding was commenced. The
fact that the child was hospitalized in another state has
little relevance in determining where she lived, as
"persons removing to hospitals or other institutions for
treatment" do not "gain or lose a residence simply
because they are away from home" (Matter of
Seitelman v Lavine, 36 N.Y.2d 165, 171 ).
Moreover, inasmuch as the hospital had only treated the child
for a few weeks and was not "awarded legal custody [of
her] by a court, " the hospital cannot be considered a
person acting as a parent within the meaning of Domestic
Relations Law § 75-a (7) (Domestic Relations Law §
75-a ). Accordingly, having been born into the sort of
"temporary absence" that plays no role in
identifying her home state (Domestic Relations Law §
75-a ), and not having had the opportunity to live with
respondent, her father or another person acting as a parent,
the child had no home state under UCCJEA (see Matter of
Consford v Consford, 271 A.D.2d 106, 111 ; see
also Matter of D.S., 217 Ill.2d 306, 319, 840 N.E.2d
1216, 1223 ; State ex rel. R.P. v Rosen, 966
S.W.2d 292, 300 [Mo Ct App 1998]).
child lacks a home state at the time a neglect proceeding is
commenced, an alternate basis for subject matter jurisdiction
under UCCJEA exists where "(i) the child and the
child's parents, or the child and at least one parent or
a person acting as a parent, have a significant connection
with this state other than mere physical presence; and (ii)
substantial evidence is available in this state concerning
the child's care, protection, training, and personal
relationships" (Domestic Relations Law § 76 
[b]). Respondent and the child's father, as noted above,
have significant connections to New York. Moreover, while the
child was hospitalized in Pennsylvania after her birth, child
protective officials in New York became involved with her,
and evidence regarding her parents' ability to care for
her and her relationship with other relatives is in New York.
New York therefore has the types of contacts with the child
and her family that permit the exercise of jurisdiction in
this proceeding and, as a result, Family Court properly
denied respondent's motion to dismiss it (see Matter
of Chloe W. [Amy W.], 137 A.D.3d 1684, 1684-1685 ;
Matter of Destiny EE. [Karen FF.], 90 A.D.3d at
1441-1442; People ex rel. Rosenberg v Rosenberg, 160
A.D.2d 327, 328-329 ).
remaining contentions have been examined and found to be
lacking in merit.
Peters, P.J., Lynch, Rose and ...