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In re Wayne

New York Court of Appeals

November 20, 2017

In the Matter of Jamie J. Wayne County Department of Social Services, Respondent; Michelle E.C., Appellant.

          Katharine F. Woods, for appellant.

          Gary Lee Bennett, for respondent.

          James S. Hinman, for interested parties James R. et al.

          Sean D. Lair, for the child.

          Lawyers for Children, Inc. et al., amici curiae.

          WILSON, J.

         This 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.

         As 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 [1992] [internal quotation marks and citations omitted]). [1]

         Those 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 [2016]; Matter of Marie B., 62 N.Y.2d 352, 358-359, 465 [1984]; Santosky v Kramer, 455 U.S. 745, 760 [1982]; Bennett v Jeffreys, 40 N.Y.2d 543, 546 [1976]; Stanley v Illinois, 405 U.S. 645, 651 [1972] [collecting cases]).

         Here, 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 [2]. 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.

         Family 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.

         Family 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?

         Before 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 [2014]). 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 [1980]). 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 [1976]), 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 ...

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