In the Matter of GAGE II. and Others, Alleged to be Neglected Children. ATTORNEY FOR THE CHILDREN, Respondent; and RACHEL JJ. et al., Respondents. JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant. ST. LAWRENCE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.
Calendar Date: November 21, 2017
J. Paulsen, County Attorney, Watertown (John L. Sabik of
counsel), for appellant.
Omshanti Parnes, Plattsburgh, attorney for the children,
D. Willer, St. Lawrence County Department of Social Services,
Canton, for St. Lawrence County Department of Social
Before: Peters, P.J., Garry, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of St. Lawrence County
(Morris, J.), entered May 11, 2017, which, in a proceeding
pursuant to Family Ct Act article 10, granted
petitioner's motion to direct Jefferson County Department
of Social Services to prosecute the neglect petition.
Rachel JJ. (hereinafter the mother) and respondent Jason II.
(hereinafter the father) are the parents of four children
(born in 2004, 2006, 2013 and 2016). In July 2016, the mother
commenced custody proceedings in St. Lawrence County. In
connection with those proceedings, the Jefferson County
Department of Social Services (hereinafter JCDSS), as a
courtesy, agreed to conduct a child protective investigation
under Family Ct Act § 1034 into the children's
parents. In the order formally directing JCDSS to do so,
Family Court noted that an employee of the St. Lawrence
County Department of Social Services (hereinafter SLCDSS) was
related to the father. After JCDSS filed its report,
petitioner, the attorney for the children, commenced this
neglect proceeding against the mother and the father in St.
Lawrence County pursuant to an order of Family Court.
Petitioner thereafter moved for an order directing either
JCDSS or SLCDSS to prosecute the neglect petition. Family
Court granted the motion by directing JCDSS to prosecute the
neglect petition. JCDSS appeals.
Court's order was premised on the notion that SLCDSS
could not prosecute the neglect petition due to a conflict of
interest. JCDSS contends that the familial relationship
identified by SLCDSS was not a valid conflict of interest so
as to warrant the disqualification of SLCDSS. SLCDSS counters
that JCDSS had to prosecute the neglect petition to avoid
"a clear conflict of interest." We agree with
SLCDSS's papers submitted in response to petitioner's
motion, SLCDSS noted that the father's sister is a grade
A supervisor in its Child Preventive Services Unit and, in
light of the neglect petition, the case would be transferred
from the Child Protective Unit to the Child Preventive
Services Unit. The mere fact, however, that the father's
sister was employed with SLCDSS as a supervisor does not
justify disqualifying SLCDSS from prosecuting the neglect
petition, especially where SLCDSS does not demonstrate that
such fact created actual prejudice or a substantial risk of
an abuse of confidence (see Matter of Nathalia P.,
22 A.D.3d 496, 497 ). Moreover, the record discloses
that since Family Court's order, SLCDSS has taken steps
to ensure that the father's sister has no supervisory
role in the father's case. In view of the foregoing, we
find that no conflict of interest exists prohibiting SLCDSS
from prosecuting the neglect proceeding (see Matter of
Richard UU., 56 A.D.3d 973, 977 ; Matter of
Stephanie X., 6 A.D.3d 778, 779-780 ).
taking into account that the family members reside in St.
Lawrence County and the absence of any showing by SLCDSS that
it would be prejudiced in acting as the prosecuting agency,
Family Court should have directed SLCDSS to prosecute the
neglect petition (see generally Social Services Law
§ 397 ; Family Ct Act § 1032; Matter of
Johnson v Johnson, 279 A.D.2d 814, 817 , lv
denied 96 N.Y.2d 715');">96 N.Y.2d 715 ) . In light of our
determination, the remaining contentions of JCDSS have been
Peters, P.J., Garry, Clark and Pritzker, JJ., concur.
that the order is reversed, on the law and the facts, without
costs, and St. Lawrence County Department of Social Services