Opinion
12-07-2021
In the Matter of the Commitment of Guardianship and Custody Pursuant to Social Services Law § 384-b of Tyshawn P., A Child Under the Age of Eighteen Years Alleged to be Permanently Neglected by Shanequa A., Respondent.
William H. King, Jr., Esq., For Shanequa A. Jennifer L. Hilburger, Esq., Attorney for the Child Andrew D. Kleehammer, Esq., Deputy County Attorney
Unpublished Opinion
MOTION DECISION
William H. King, Jr., Esq., For Shanequa A.
Jennifer L. Hilburger, Esq., Attorney for the Child
Andrew D. Kleehammer, Esq., Deputy County Attorney
HON. DANDREA L. RUHLMANN, FAMILY COURT JUDGE
Respondent-Mother Shanequa A. (dob: XX/XX/1992) has moved pursuant to CPLR 4401 for judgment during trial, asserting as a matter of law that the termination of parental rights petition is jurisdictionally defective because it fails to comply with (1) Family Court Act § 614 [1][d] and (2) Social Services Law Section 384-b [7] [a] as the subject child Tyshawn P. (DOB:XX/XX/2013) was not in foster care for one year at the time the termination petition was filed.
"A finding of permanent neglect must be made by clear and convincing proof, the highest burden of proof in New York child protective proceedings" (Matter of Family Court Act Admin. For Children's Services v Sonia R., 30 Misc.3d 1211(A) [Fam. Ct Bronx County, New York 2010]). A petition "seeking to permanently terminate a parent's rights constitutes one of the most severe intrusions by the State into an individual's life and thus exacting procedural safeguards are a necessity" (Matter of Rebecca KK, 19 A.D.3d 763, 764 [3d Dept 2005], internal quotes omitted).
Monroe County Department of Human Services (MCDHS) filed the termination of parental rights petition against the Respondent-Mother on May 9, 2018, stating that Tyshawn P. was placed in foster care on December 19, 2017. December 19, 2017 to the filing date of the petition May 9, 2018, is a period of time of less than five (5) months. MCDHS' petition however also states that the child came into the care and custody of Brenda D., godmother of the child's father, under the supervision of MCDHS on December 17, 2015, a period of more than one year prior to the filing of the termination petition. The petition further clarifies "[t]hus, the child has been in the care of an authorized agency, as defined in Matter of Dale P., 84 N.Y.2d 72 [1994], for a period of at least one year."
Family Court Act § 614 [1][d] expressly refers to the date a child comes into the care of an authorized agency: the statute does not use the term "foster care." Social Services Law Section 384-b [7] (a) states: "[f]or the purposes of this section, 'permanently neglected child' shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly...."
The Appellate Division, First Department has held foster care is not a prerequisite for filing a termination petition. "Direct placement authorized by the Family Court can also be a predicate for termination of parental rights proceedings" (Matter of Anthony Julius A., 231 A.D.2d 462 [1st Dept.1996]), citing Matter of Dale P., 84 N.Y.2d 72 [1994]). The Fourth Department rejected the proposition that a permanent neglect petition was defective because the child was placed with a relative resource as opposed to foster care and further found that the respondent mother "had sufficient notice of her obligations to maintain contact and plan for her children's future to satisfy due process requirements" (Matter of Hannah D., 292 A.D.2d 867 [4th Dept 2002]). Still this case differs from Matter of Dale P., and its progeny, in that it is not a direct placement with a relative resource for a protracted period of time. Rather here, the subject child was first placed with a relative resource under MCDHS' supervision and later was transitioned to foster care as often occurs in Article 10 Family Court Act proceedings (cf. Julius A. 231 A.D.2d 462 and Hannah D. 292 A.D.2d 867).
MCDHS prior notice on all placement orders did comply with Family Court Act 1055 (b) (i) (D) that states:"IF YOUR CHILD STAYS IN FOSTER CARE FOR 15 OF THE MOST RECENT 22 MONTHS, THE AGENCY MAY BE REQUIRED BY LAW TO FILE A PETITION TO TERMINATE YOUR PARENTAL RIGHTS AND MAY FILE BEFORE THE END OF THE 15-MONTH PERIOD." MCDHS can and should do more in a case such as this one. Family Court Act § 1055 (b) (i) expressly provides "The order of placement shall include, but not be limited to" [emphasis added] the requisite notice. These standard warnings were misleading at best in this case, where the subject child's placement shifted from a relative resource to foster care placement. The Family Court Act §1055 (b) (i) (D) notice gave the Respondent-Mother the false impression that the time the child is cared for by a relative resource is not included in the statutory one year period of care since there is no mention of Matter of Dale P., 84 N.Y.2d 72 [1994] or its progeny.
The issue before the Court is whether Respondent-Mother had "sufficient notice of her obligations to maintain contact and plan for [the child's] future to satisfy due process requirements" (see Hannah D., 292 A.D.2d at 867), in view of the MCDHS' minimal written notices to her. The Family Court Act 1055 notice only alerts the Respondent-Mother to the possibility that termination proceedings may occur when the child is in foster care. A more accurate notice could be added to MCDHS placement language to include that a child in care includes a child placed with a relative resource.
The Court cannot ignore the unique circumstances of this case. The subject child has been in the care of MCDHS since December 17, 2015, for over five years. Significant, that timeframe includes a period of ten months after the filing of the termination petition but before the Covid-19 pandemic shutdown or otherwise altered the operations of the Court. The Court held more than ten appearances between the filing and service of the termination petition on Respondent-Mother and the Court's Covid-19 shutdown on March 16, 2020. Respondent-Mother was represented by counsel throughout such proceedings.
Finally the Court must view the Respondent-Mother's motion in the light most favorable to the non-moving party, here the MCDHS (see Szczerbiak v Pilat, 90 N.Y.2d 553 [1997]). This standard differs from a pretrial motion, or determination of reasonable efforts at the close of proofs. Thus this Court finds Respondent-Mother's termination petition is sufficient and that Respondent-Mother had adequate notice because the termination petition stated the child had been in the care of an authorized agency, as defined in the Matter of Dale P., for a period of more than one year.
Even if the Court had found the notice to be insufficient as a matter of law and dismissed the petition, this would not preclude MCDHS "from pursuing a permanent neglect determination[s] based upon a proper petition" (Matter of Rebecca KK. 19 A.D.3d 763, 764-65).
NOW THEREFORE, it is
ADJUDGED that Respondent-Mother's motion pursuant to CPLR 4401 for judgment during trial, asserting as a matter of law that the termination of parental rights petition is jurisdictionally defective is denied..
PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.