In the Matter of Boston G. (Anonymous). Administration for Children's Services, appellant; Jennifer G. (Anonymous), respondent. Docket No. N-17781-15
Zachary W. Carter, Corporation Counsel, New York, NY (Susan
P. Greenberg and Aaron M. Bloom of counsel), for appellant.
Brooklyn Defender Services, Brooklyn, NY (Lauren Shapiro,
Jessica Marcus, and Paul, Weiss, Rifkind, Wharton &
Garrison LLP [Jessica S. Carey and Rebecca T. Dell], of
counsel), for respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler,
Marcia Egger, and Emily Kitay of counsel), attorney for the
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI,
JEFFREY A. COHEN, JJ.
DECISION & ORDER
from an order of the Family Court, Kings County (Lillian Wan,
J.), dated December 7, 2016. The order granted the
mother's motion to vacate so much of a prior order of
fact-finding and disposition of that court dated October 5,
2015, as, upon her consent to the entry of an order of
fact-finding without admission pursuant to Family Court Act
§ 1051(a), found that she neglected the subject child.
that the order dated December 7, 2016, is affirmed, without
costs or disbursements.
13, 2015, the petitioner commenced this proceeding pursuant
to Family Court Act article 10 alleging that the mother
neglected the subject child by leaving the child unattended
and by misusing alcohol. The petition alleged that the child
was removed from the mother's home on July 11, 2015. In
an order of fact-finding and disposition dated October 5,
2015, the Family Court, upon the mother's consent to the
entry of an order of fact-finding without admission pursuant
to Family Court Act § 1051(a), found that she neglected
the child and released the child to the mother's custody
under the supervision of the petitioner for a period of 12
months pursuant to certain terms and conditions. In May 2016,
the parties consented to ending the period of supervision
five months early.
November 2016, the mother moved pursuant to Family Court Act
§ 1061 to vacate so much of the order of fact-finding
and disposition dated October 5, 2015, as found that she
neglected the child. In opposition to the mother's
motion, the petitioner argued that the Family Court lacked
jurisdiction to entertain the motion since the case was
closed in May 2016, and that the neglect finding could not be
vacated because it was entered on consent. The attorney for
the child did not oppose the motion. In an order dated
December 7, 2016, the court granted the mother's motion.
The petitioner appeals.
appeal, the petitioner contends that the mother failed to
establish "good cause" within the meaning of Family
Court Act § 1061 to warrant vacatur of the prior finding
of neglect. However, the petitioner's contention is
unpreserved for appellate review, as the petitioner did not
raise this contention in opposition to the mother's
motion (see Matter of Keishaun P. [Tyrone P.], 140
A.D.3d 1171, 1173). In any event, the petitioner's
contention is without merit.
Court Act § 1061 provides that, for good cause shown,
the Family Court may set aside, modify, or vacate any order
issued in the course of a child protective proceeding
(see Family Ct Act § 1061; Matter of Jahred
S. [Wilbert S.], 149 A.D.3d 963, 965; Matter of
Inocencia W. [Yasha W.], 147 A.D.3d 865, 866; Matter
of Bernalysa K. [Richard S.], 118 A.D.3d 885, 885).
"The statute expresses the strong Legislative policy in
favor of continuing Family Court jurisdiction over the child
and family so that the court can do what is necessary in the
furtherance of the child's welfare" (Matter of
Kevin M.H. [Kevin H.], 102 A.D.3d 690, 691 [internal
quotation marks omitted]; see Matter of Mario D. [Marina
L.], 147 A.D.3d 828). "As with an initial order,
the modified order must reflect a resolution consistent with
the best interests of the child[ ] after consideration of all
relevant facts and circumstances, and must be supported by a
sound and substantial basis in the record" (Matter
of Sutton S. [Abigail E.S.], 152 A.D.3d 608, 608
[internal quotation marks omitted]; see Matter of Kenneth
QQ. [Jodi QQ.], 77 A.D.3d 1223, 1224). Under the
particular circumstances of this case, including the
mother's lack of any prior child protective history, her
strict compliance with court-ordered services and treatment,
and her commitment to ameliorating the issues that led to the
finding of neglect, the mother demonstrated good cause to
vacate the finding of neglect (see Matter of Leenasia C.
[Lamarriea C.], 154 A.D.3d 1, 12-13; Matter of
Daniella A. [Jessica A.], 153 A.D.3d 426, 427;
Matter of Anoushka G. [Cyntra M.], 132 A.D.3d 867,
868; Matter of Araynah B., 34 Misc.3d 566, 582 [Fam
Ct, Kings County]; cf. Matter of Inocencia W. [Yasha
W.], 147 A.D.3d at 866).
petitioner's remaining contentions are unpreserved for
appellate review and, in any event, without merit.
the Family Court properly granted the mother's motion to
vacate so much of the order of fact-finding and disposition
dated October 5, 2015, as found that she neglected the child.
light of our determination, we need not reach the remaining