In the Matter of Jamie J. Wayne County Department of Social Services, Respondent; Michelle E.C., Appellant.
Katharine F. Woods, for appellant.
Lee Bennett, for respondent.
S. Hinman, for interested parties James R. et al.
D. Lair, for the child.
Lawyers for Children, Inc. et al., amici curiae.
case presents the novel question of whether Family Court
retains subject matter jurisdiction to conduct a permanency
hearing pursuant to Family Court Act (FCA) article 10-A once
the underlying neglect petition brought under article 10 of
that statute has been dismissed for failure to prove neglect.
We hold that it does not. Instead, the dismissal of a neglect
petition terminates Family Court's jurisdiction.
Chief Judge Kaye explained,
"New York's foster care scheme is built around
several fundamental social policy choices that have been
explicitly declared by the Legislature and are binding on
this Court... A biological parent has a right to the care and
custody of a child, superior to that of others, unless the
parent has abandoned that right or is proven unfit to assume
the duties and privileges of parenthood, even though the
State perhaps could find 'better' parents. A child is
not the parent's property, but neither is a child the
property of the State. Looking to the child's rights as
well as the parents' rights to bring up their own
children, the Legislature has found and declared that a
child's need to grow up with a normal family life in a
permanent home is ordinarily best met in the child's
natural home" (Matter of Michael B., 80 N.Y.2d
299, 308-309  [internal quotation marks and citations
rights are among our oldest and most fundamental and are not
only provided by statute, but also guaranteed to parents and
children by our state and federal constitutions (Matter
of Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d 1, 26
; Matter of Marie B., 62 N.Y.2d 352, 358-359,
465 ; Santosky v Kramer, 455 U.S. 745, 760
; Bennett v Jeffreys, 40 N.Y.2d 543, 546
; Stanley v Illinois, 405 U.S. 645, 651 
the rights at issue are those of the subject child, Jamie J.,
and her mother, Michelle E.C. Jamie J. was born in November
2014. A week later, at the request of the Wayne County
Department of Social Services (the Department), Family Court
directed her temporary removal from Michelle E.C.'s
custody pursuant to an ex parte pre-petition order under FCA
§ 1022 . Four days after that, the Department
filed its FCA article 10 neglect petition. More than a year
later, on the eve of the fact-finding hearing held to
determine whether it could carry its burden to prove neglect,
the Department moved to amend its petition to conform the
pleadings with the proof. Family Court denied that
eleventh-hour motion as unfairly prejudicial to Michelle E.C.
and to the attorney for Jamie J. After hearing evidence,
Family Court found that the Department failed to prove
neglect, and therefore dismissed the petition. The Department
did not appeal that decision.
Court, however, did not release Jamie J. into her
mother's custody when it dismissed the article 10 neglect
petition. Instead, at the Department's insistence and
over Michelle E.C.'s objection, it held a second
permanency hearing, which had been scheduled as a matter of
course during the statutorily required first permanency
hearing in the summer of 2015. Family Court and the
Department contended that, even though the Department had
failed to prove any legal basis to remove Jamie J. from her
mother, article 10-A of the FCA gave Family Court continuing
jurisdiction over Jamie J. and entitled it to continue her
placement in foster care.
Court held the second permanency hearing on January 19, 2016.
There, Michelle E.C. argued, as she does here, that the
dismissal of the neglect proceeding ended Family Court's
subject matter jurisdiction and should have required her
daughter's immediate return. Solely to expedite her
appeal of that issue, Michelle E.C. consented to a second
permanency hearing order denying her motion to dismiss the
proceeding and continuing Jamie J.'s placement in foster
care. The Appellate Division, with two Justices dissenting,
affirmed the second permanency hearing order (145 A.D.3d 127');">145 A.D.3d 127
[4th Dept 2016]) and Michelle E.C. appealed that decision as
of right under CPLR 5601 (a). Her appeal presents a
straightforward question of statutory interpretation: does
FCA article 10-A provide an independent grant of continuing
jurisdiction that survives the dismissal of the underlying
article 10 neglect petition?
turning to that question, we first consider whether mootness
and preservation issues prevent us from reaching it. During
the pendency of this appeal, the second permanency hearing
order was superseded by a third, a fourth permanency hearing
was scheduled, a proceeding to terminate Michelle E.C.'s
parental rights was commenced and stayed pending the result
of this appeal, and a second neglect petition was filed. The
Department argues this appeal has been rendered moot by those
occurrences. However, none of them resolved the conflict
between the parties, and each permanency hearing - docketed
under the first neglect petition - remains subject to the
same jurisdictional objection as its predecessor (see
Matter of New York State v Michael M., 24 N.Y.3d 649,
657 ). Moreover, even if the appeal were moot, the
exception to that doctrine would plainly apply (see
generally Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707,
714-715 ). As to preservation, the jurisdictional
objection, which may be raised at any time and may not be
waived (Lacks v Lacks, 41 N.Y.2d 71, 75 ), was
preserved in Michelle E.C.'s letter to Family Court,
through her proposed order to show cause, and at the second
permanency hearing. Her eventual consent to the second
permanency order was expressly understood by all parties and
by the court as a means of expediting appellate review, not a
waiver of the alleged defect. Finally, her due process
argument is properly apprehended not as a stand-alone
challenge requiring notice to the Attorney-General, but as an
invocation, in service ...