ALBANY—The state’s highest court overturned a lower court’s ruling Monday as to whether Family Court has jurisdiction to conduct a permanency hearing once an underlying neglect petition has been dismissed for failure to prove neglect.
The opinion by Associate Judge Rowan Wilson reversing the Appellate Division, Fourth Department, Matter of Jamie J., 2016 NY Slip Op 07424, asks whether the Family Court Act Article 10-a provides continuing jurisdiction if the underlying Article 10 neglect petition is dismissed.
The decision stems from a request from the Wayne County Department of Social Services to temporarily remove the 1-week-old child of a woman identified as Michelle E.C. In November 2014, the department placed the child, referred to as Jamie J., in foster care and a neglect proceeding against Michelle began under the Family Court Act Article 10, which alleged that the child was at imminent risk of harm because of the mother’s inability to provide adequate care for her child.
The Family Court held a permanency hearing in June 2015 and continued Jamie’s foster care placement. In December 2015, the Family Court dismissed the Article 10 neglect petition on the ground that the department did not prove that the mother “failed to exercise a minimum degree of care.”
Despite the ruling, the child was not returned to her mother and the court held another permanency hearing in January 2016. During the January 2016 hearing, the court agreed with the Wayne Department of Social Services that it retained jurisdiction to hold another hearing under Article 10-a despite the dismissal of the Article 10 petition.
The Appellate Division, Fourth Department, affirmed the permanency hearing in a 3-2 decision saying that the court retained subject matter jurisdiction to conduct the permanency hearing under Article 10-a even though the neglect petition was dismissed.
In the decision, Wilson asserts that Article 10, the Child Protective Proceedings, is designed to protect children from mistreatment or injury, and provide due process of law for determining when the state can intervene.
Wilson states that the Department of Social Services “seizes on a hyperliteral reading” of a section of Article 10-a “divorced from all context, to argue that Family Court’s pre-petition placement of Jamie J … triggers a continuing grant of jurisdiction that survives the eventual dismissal of the neglect petition.”
“In other words, even if the Family Court removes a child who has not been neglected or abused, it has jurisdiction to continue that child’s placement in foster care until and unless it decides otherwise,” Wilson wrote.
Section 1088 of Article 10, which states that “a case shall remain on the court’s calendar and the court shall maintain jurisdiction over the case until the child is discharged from placement and all orders regarding supervision or services have expired,” must be “construed not in isolation, but as the ‘-A’ implies) together with the other provisions of the [Family Court Act].”
The department’s interpretation of the Section 1088 of the article would “infringe the constitutional rights of both parents and children,” Wilson added, noting that the Family Court cannot continue with an Article 10-a permanency hearing once the underlying article has been dismissed.
The dismissal of the neglect petition operates to discharge a child from foster care placement, terminates all orders regarding supervision, protection or services and ends the court’s jurisdiction over the matter, Wilson wrote.
“That result harms neither Jamie J. nor future children in equally tragic circumstances. As to Jamie J., the department remains free to take steps to place her in foster care, if warranted. … As to future children, the department and those children’s attorneys remain free to take all the steps the petitioner abjured or belatedly pursued here,” Wilson wrote.
Chief Judge Janet DiFiore and Associate Judges Jenny Rivera, Leslie Stein, Eugene Fahey, Michael Garcia and Paul Feinman concurred with Wilson’s opinion.
Kate Woods, the co-deputy director of operations of Legal Assistance of Western New York, said Tuesday that decision from the Court of Appeals was “vindication” for her client, Michelle. “The psychological benefit of that is really profound,” Woods said in a phone interview. “Victories are really hard to find” for parents in similar situations as Michelle, she added.
Woods said she worked closely with the Bronx Defenders office, the NYU Family Defense Clinic and Paul, Weiss, Rifkind, Wharton & Garrison, which did some pro bono work.
Despite the ruling in favor of her client, it’s “hard to say” whether Jamie will be returned to her mother’s custody.
“From my perspective, that’s what should happen. But things don’t always happen as they should,” Woods said, adding that there are hearings pending on other issues surrounding Michelle and Jamie.
James Hinman, a Rochester-based attorney who represented the foster parents in the proceedings, said Tuesday that he wasn’t surprised by the outcome of the case based on the questions asked during oral arguments in October. Despite the Court of Appeals’ decision, Hinman said he doesn’t expect that it’s going to affect the decision over custody.
“Jamie is receiving excellent care from my client, better care than she would have gotten with her mother,” Hinman said. “She’s with the only people that she knows as parents. This has been a blessing for her.”