Opinion
02-09-2022
In the Matter of N.H.
Ms. Mary Katherine Cunningham, Esq., Mr. Noah Powlen, Esq., and Ms. Iman Akbar, Esq. for the petitioner, the Administration for Children's Services (ACS); Mr. Greg Tolbert, Esq. of the Bronx Defenders for the respondent father; Ms. Sirica McIntosh, Esq. of the Legal Aid Society for the child; Mr. David Eskin and Mr. Paul Sweeney, Esq. for the non-respondent mother.
Ms. Mary Katherine Cunningham, Esq., Mr. Noah Powlen, Esq., and Ms. Iman Akbar, Esq. for the petitioner, the Administration for Children's Services (ACS);
Mr. Greg Tolbert, Esq. of the Bronx Defenders for the respondent father;
Ms. Sirica McIntosh, Esq. of the Legal Aid Society for the child;
Mr. David Eskin and Mr. Paul Sweeney, Esq. for the non-respondent mother.
TRACEY A. BING, J.
The Court issues this order after reviewing the pleadings in this matter. The Court takes judicial notice of its order dated September 8, 2021 denying the motion filed by the non-respondent mother. In the motion, the Court provided counsel with an opportunity to present arguments regarding the jurisdiction of this Court for the pending neglect matter. The attorney for the child filed a memorandum of law. The Court has discussed jurisdiction throughout this case and encouraged counsel to provide legal authority for jurisdiction to continue in New York.
ACS filed a neglect proceeding on April 30, 2021. The petitioner the Administration for Children's Services ("ACS") was represented by Mary Kate Cunningham, Esq., Iman Akbar, Esq, and Noah Powlen, Esq. The respondent was represented by Greg Tolbert, Esq. of the Bronx Defenders. The child was represented by the Legal Aid Society, Sirica McIntosh, Esq. The non-respondent mother was represented by David Eskin, Esq. and Paul Sweeney, Esq.
The Court exercised temporary emergency jurisdiction under Domestic Relations Law (DRL) Section 76-b. On May 13, 2021, this Court communicated with Hon. Kenneth Newell of the Texas District Court regarding the neglect filing in New York. The Texas jurist confirmed his decision to exercise home state jurisdiction and the ability to address all safety issues of the child. See DRL Section 76-c (4). The Texas Court issued a temporary order regarding custody and visitation including the required residence of the child. Once the Texas Court issued its order, this Court may not exercise jurisdiction. See DRL Section 76-e.
On January 24, 2022, the respondent filed a petition in Bronx County Family Court to register the foreign order of custody (joint conservatorship issued by Texas). The Texas order issued in the District Court 233rd Judicial District, Tarrant County, Texas dated September 16, 2021 was issued by Judge Kate Stone. The respondent and non-respondent mother appeared in the Texas proceeding by zoom conference on August 9, 2021. The Court entered an order of temporary joint managing conservatorship of the child.
The Court finds that under NY DRL Section 77-b, this Court has a duty to enforce the child custody determination of a court of another state, herein Texas, who has exercised home state jurisdiction in the pending custody/visitation matter filed in Texas prior to the filing of the neglect petition in New York. The Texas proceeding was filed on April 14, 2021 (approximately) as per the respondent and ACS. See also Matter of Francois B. v. Fatoumata L., 170 A.D.3d 617 [1st Dept, 2019].
The non-respondent mother filed a family offense on February 2, 2022. Any issues regarding the safety of the child and the non-respondent mother will be addressed on this petition. The Court issued a temporary order of protection on behalf of the mother and child subject to Texas orders. On, the respondent father accepted service of the family offense petition after his counsel was assigned to represent him in the family offense matter. The Court extended the temporary order of protection on behalf of the non-respondent mother and the child. Counsel for ACS and the child consent to the Court's dismissal of the neglect petition due to the Court's jurisdiction and ability to protect the child and non-respondent mother in the family offense proceeding.
The petition is dismissed without prejudice. This constitutes the decision and order of the Court. The minutes of all prior court appearances are included in this decision.