Opinion
2014-04-16
In the Matter of TEKIARA F. (Anonymous). Administration for Children Services, appellant; Gayle A.E. (Anonymous), et al., respondents. (Proceeding No. 1) In the Matter of Shidiamond E. (Anonymous). Administration for Children Services, appellant; Gayle A.E. (Anonymous), et al., respondents. (Proceeding No. 2) In the Matter of Tyrique H. (Anonymous). Administration for Children Services, appellant; Gayle A.E. (Anonymous), et al., respondents. (Proceeding No. 3).
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellant. Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the children.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellant. Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Claire V. Merkine of counsel), attorney for the children.
In three related child protective proceedings pursuant to Family Court Act article 10, the petitioner appeals from an order of the Family Court, Kings County (O'Shea, J.), dated June 28, 2013, which dismissed the petitions on the ground of, inter alia, lack of subject matter jurisdiction.
ORDERED that the order is reversed, on the law, without costs or disbursements, the petitions are reinstated, and the matters are remitted to the Family Court, Kings County, for further proceedings consistent herewith.
The subject children were provisionally placed with their maternal grandmother in Ohio pursuant to the Interstate Compact on the Placement of Children (hereinafter the ICPC). The ICPC, codified in Social Services Law § 374–a, provides that the state which places a child in out-of-state foster care “shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child ... until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state” (Social Services Law § 374–a[1], art. V[a] ). Here, none of the circumstances that trigger a termination of New York State's jurisdiction over the subject children has occurred. Accordingly, the Family Court erred in dismissing the petitions on the ground that it lacked subject matter jurisdiction ( see Social Services Law § 374–a[1]; Matter of Williams v. Glass, 245 A.D.2d 66, 67, 664 N.Y.S.2d 792;Matter of H./M. Children, 217 A.D.2d 164, 168, 634 N.Y.S.2d 675).
In addition, it was error for the Family Court to conclude that the allegations concerning the respondents' failure to plan for the children and the allegations of derivative neglect against the respondent Germail B. were barred by res judicata as a result of the court's May 15, 2013, order, which dismissed a prior neglect petition “for failure to state a cause of action” ( see generally Pereira v. St. Joseph's Cemetery, 78 A.D.3d 1141, 1142, 912 N.Y.S.2d 121; Asgahar v. Tringali Realty, Inc., 18 A.D.3d 408, 795 N.Y.S.2d 68;see also Maybaum v. Maybaum, 89 A.D.3d 692, 696, 933 N.Y.S.2d 43).
The petitioner's remaining contentions concerning the court's May 15, 2013, order are not properly before this Court, as it did not appeal from that order ( see CPLR 5515[1]; Matter of Tara C. [Sonia C.], 106 A.D.3d 735, 963 N.Y.S.2d 875;Matter of Idhailia P. [Philip S.P.], 95 A.D.3d 1333, 1335, 945 N.Y.S.2d 705). MASTRO, J.P., BALKIN, SGROI and LASALLE, JJ., concur.