In the Matter of Joseph PP., a Neglected Child. Sullivan County Department of Social Services, Respondent; Kimberly QQ., Appellant.
Calendar Date: November 21, 2019
Schildkraut, Rock Hill, for appellant.
Sullivan County Department of Social Services, Monticello
(Constantina Hart of counsel), for respondent.
Heller, Rock Hill, attorney for the child.
Before: Garry, P.J., Egan Jr., Lynch and Devine, JJ.
from an order of the Family Court of Sullivan County
(McGuire, J), entered December 18, 2018, which, in a
proceeding pursuant to Family Ct Act articles 10 and 10-A,
modified the permanency plan of the subject child.
is the mother of the subject child (born in 2015), who has
been in petitioner's custody since May 2017. A temporary
order of protection, issued in March 2017, prohibited
respondent's former boyfriend from contact with
respondent and the child. In May 2017, the child was present
when respondent and the boyfriend fought with one another.
Respondent was arrested and charged with endangering the
welfare of a child. Petitioner then commenced this neglect
proceeding. After a fact-finding hearing, Family Court
granted the petition and adjudicated the child to be
neglected by respondent. Upon respondent's appeal, this
Court affirmed (172 A.D.3d 1478');">172 A.D.3d 1478 ).
October 2018, petitioner filed a permanency hearing report
seeking to change the permanency goal for the child from
reunification with respondent to placement for adoption.
Petitioner stated that it intended to commence a proceeding
to terminate respondent's parental rights. Respondent
opposed the change. Following the ensuing permanency hearing,
Family Court issued a permanency order that modified the
permanency goal from reunification with respondent to
placement for adoption. The court stated that no proceeding
to terminate respondent's parental rights would be
commenced at that time, continued respondent's supervised
visitation, and directed petitioner to continue to provide
respondent with services and to make diligent efforts to
strengthen the parental relationship. Respondent appeals.
this issue was not raised by the parties, we find that Family
Court erred in modifying the permanency goal to placement for
adoption without directing petitioner to commence a
proceeding to terminate respondent's parental rights.
Family Ct Act Â§ 1089 (d) (2) (i) provides that a
court may impose one of five specified permanency goals,
including "placement for adoption with the
local social services official filing a petition for
termination of parental rights" (Family Ct Act
Â§ 1089[d]  [i] [B] [emphasis added]). Nothing
in the statutory language permits a permanency goal of
placement for adoption to be imposed in the absence of a
concurrent petition to terminate the respondent's
parental rights. Further, the statute does not permit
"the court [to] select and impose on the parties two or
more goals simultaneously" (Matter of Dakota F.
[Angela F.], 92 A.D.3d 1097, 1099 ; see Matter
of Timothy GG. [Meriah GG.], 163 A.D.3d 1065, 1067
, lv denied 32 N.Y.3d 908');">32 N.Y.3d 908 ; Matter
of Julian P. [Melissa P.-Zachary L.], 106 A.D.3d 1383,
in addition to stating that the permanency goal was being
changed to placement for adoption and that no immediate
termination proceeding would be commenced, Family Court also
stated that another permanency hearing would be scheduled in
six months and that it was the court's "expectation
and hope" that the goal could be changed back to
reunification at that time. The express language of the
permanency order imposes only one goal. However, the effect
of the failure to commence termination proceedings and the
court's directions to petitioner regarding services and
diligent efforts was to impose two concurrent, contradictory
goals of placement for adoption and reunification.
"Petitioner cannot reasonably work toward the goal of
placing the child for adoption which, pursuant to the
statute, requires petitioner to file a petition to terminate
respondent's parental rights while at the same time
trying to return the child to his parent" (Matter of
Dakota F. [Angela F.], 92 A.D.3d at 1099 [internal
citations omitted]). We recognize the court's apparent
intent, that is, to encourage respondent to make further
efforts to progress toward reunification with the child.
Nonetheless, the statutory language does not permit the
method used to advance that purpose. Accordingly, we must
remit for further proceedings (see Matter of April WW.
[Kimberly WW.], 133 A.D.3d 1113, 1119 ; Matter
of Dakota F. [Angela F.], 92 A.D.3d at 1099). The
parties' remaining contentions are rendered academic by
Jr., Lynch and Devine, JJ., concur.
that the order is reversed, on the law, without costs, and
matter remitted to the Family Court of Sullivan County for
further proceedings not ...