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In re Joseph PP.

Supreme Court of New York, Third Department

December 26, 2019

In the Matter of Joseph PP., a Neglected Child. Sullivan County Department of Social Services, Respondent; Kimberly QQ., Appellant.

          Calendar Date: November 21, 2019

          Ivy M. Schildkraut, Rock Hill, for appellant.

          Sullivan County Department of Social Services, Monticello (Constantina Hart of counsel), for respondent.

          Marcia Heller, Rock Hill, attorney for the child.

          Before: Garry, P.J., Egan Jr., Lynch and Devine, JJ.

          Garry, P.J.

         Appeal 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.

         Respondent 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 [2019]).

         In 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. [1]

         Although 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 § 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 § 1089[d] [2] [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 [2012]; see Matter of Timothy GG. [Meriah GG.], 163 A.D.3d 1065, 1067 [2018], lv denied 32 N.Y.3d 908');">32 N.Y.3d 908 [2018]; Matter of Julian P. [Melissa P.-Zachary L.], 106 A.D.3d 1383, 1384 [2013]).

         Here, 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 [2015]; Matter of Dakota F. [Angela F.], 92 A.D.3d at 1099). The parties' remaining contentions are rendered academic by this determination.

          Egan Jr., Lynch and Devine, JJ., concur.

         ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Sullivan County for further proceedings not ...


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