Opinion
No. 2023-50253 Docket Nos. O-23721-22
03-28-2023
In the Matter of a Family Offense Proceeding, Atreyu B. (o/b/o Orion B.), Petitioner, v. Chyann R., Respondent.
Unpublished Opinion
Liberty Aldrich, J.
PROCEDURAL HISTORY
On or about November 15, 2022 Petitioner, Atreyu B., filed a Family Offense Petition on behalf of the child Orion B. (DOB XX/XX/2020), against Respondent, Chyann R. The petition alleges that when Mr. B. picks-up the child, the child is always displaying one or all the following symptoms: he is sick, has a bad rash, is not groomed, and his feces is green. Additionally, Mr. B. alleges that in November of 2022, the child did not have a baby bag, pullups, a cup for juice, or a car seat, when he picked-up the child from day care. Mr. B. alleges that the child was not properly dressed, and that the child's rectum area was raw pink as if the child was hit and left in a dirty diaper. Mr. R. further alleges that Orion flinches "as if he's been beat and even fighting in his sleep."
On or about January 21, 2023, Ms. R. filed a motion to dismiss based on lack of jurisdiction. Ms. R. argues that the Court does not have jurisdiction because (1) the petition does not allege one of the permissible enumerated offenses under Article 8 of the family court act; and (2) the Court does not have jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). On or about January 25, Mr. B. filed opposition papers.
LEGAL ANALYSIS AND DECISION
Failure to allege a Family Offense:
A party can move for the dismissal of one or more causes of action on the basis that the petition fails to state a cause of action (CPLR § 3211 [a][7]). In deciding whether to dismiss a petition for failure to state a cause of action, the court must liberally construe the petition, the facts must be accepted as true, and the petitioner should be given the benefit of every favorable inference (Price v. Jenkins, 149 A.D.3d 953, 954 [2d Dept 2017]; Clark v. Ormiston, 101 A.D.3d 870, 871 [2d Dept 2012]).
Section 812 of the Family Court Act grants the Family Court jurisdiction over any proceeding concerning certain delineated acts "between spouses or former spouses, or between parent and child or between members of the same family or household..." Fam. Ct. Act § 812(a). Ms. R. correctly contends that child abuse and neglect are not one of the enumerated family offenses. However, in liberally construing the pleadings, the Court looks at "whether the facts alleged fit within any cognizable legal theory" (Leon v. Martinez, 84 N.Y.2d 83, 84 [1994] [emphasis added]; CPLR § 3026). Despite Mr. B. entering offenses that are not covered by Article 8, if the allegations are taken as true, he has presented a cognizable legal theory for one of the designated offenses. As such, the petition cannot be dismissed for failure to state a cause of action.
UCCJEA:
Jurisdictional considerations are usually considerably different in Article 8 and Article 6 cases. In Article 8 proceedings, subject matter jurisdiction is determined by section 812 of the Family Court Act. Generally, "[f]amily Court's subject matter jurisdiction over a family offense is not limited by geography" (Opportune N. v. Clarence N., 110 A.D.3d 430 [1st Dept 2013] [citing Fam. Ct. Act §§ 812, 818] [finding that the court could receive evidence and make fact-findings concerning incidents that occurred in Pennsylvania]). In contrast, subject matter jurisdiction in custody cases is determined by the UCCJEA (Dom. Rel. Law § 76). Neither Article 8 nor the UCCJEA directly address the interplay between the two when an order of protection, requested on behalf of a child, could impact a parent's access to their child.
There appears to be no First Department cases addressing the whether the UCCJEA applies to Article 8 petitions that are filed on behalf of a child. However, there are Second Department cases that indicate that the UCCJEA is applicable. In Santiago v. Riley (79 A.D.3d 1045 [2d Dept 2010]), the Court found that the "[t]he mother's family offense petition gave rise to a child custody proceeding within the meaning of the Uniform Child Custody Jurisdiction and Enforcement Act..." As such, the Court determined that the Family Court erred by dismissing the petition prior to determining whether it was necessary to exercise temporary emergency jurisdiction pursuant to the UCCJEA (Id.). In Alintoff v. Alintoff (141 A.D.3d 518 [2d Dept 2016]), the Court upheld the Family Court's determination to dismiss a parent's family offense petition after determining they lacked jurisdiction pursuant to the UCCJEA. The Court found that the UCCJEA applied to the family offense petition because the order of protection sought by the mother, would have affected the father's custody and visitation rights (Id.). In Etzel v. Frelend (188 A.D.3d 1054 [2d Dept 2020]) the Court found that the father's modification petition was properly dismissed based on Vermont's continuing and exclusive jurisdiction. The Court stated that the dismissal of the family offense petition, on the same jurisdictional grounds, was also proper because the family offense petition, "would have necessarily affected the parties' custody and parental access rights" (Id.; see also Santana v. Pena, 196 A.D.3d 638 [2d Dept 2021] [finding that another state had exclusive continuing jurisdiction over the parties petitions, including the order of protection that was being sought, since it would have affected the other parent's parental access rights]).
In this case, the attorney for Ms. R. and Mr. B. both seem to concede that the UCCJEA is applicable, although they focus on different provisions. Ms. R. argues that the petition should be dismissed because New York is not the child's home-state in accordance with the UCCJEA. In opposition, Mr. B. argues that the court should exercise temporary emergency jurisdiction pursuant to Section 76-c of the DRL.
This Court agrees that the UCCJEA applies in a family offense petition, brought on behalf of a child, if the relief sought could affect a party's custody or visitation with a child. Here, the relief that Mr. B. is seeking, could impact Ms. R.'s parental access to the child. In applying the UCCJEA in this case, it is uncontested that Maryland has exclusive, continuing jurisdiction (Dom. Rel. Law § 76-a) based on a final order of custody issued to Ms. R. from Baltimore County Circuit Court on June 21, 2022. It has also been uncontested, that Ms. R. and the child continue to reside in Maryland. As such, this court does not have jurisdiction.
The Foreign Order has been registered under docket V-24469-22.
While Courts have held that the UCCJEA emergency jurisdiction provision allows courts to consider applications on behalf of the child under Article 8, that provision is not applicable here. The Court can exercise "temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child" (Dom. Rel. Law § 76-c). Petitioner correctly contends that in most instances the Court is required to hold a hearing to determine whether the child is at imminent risk of harm prior to dismissing the petitions (Santiago v. Riley, 79 A.D.3d 1045 [2d Dept 2010]). However, in this case the child is not currently present in this state as required for this court to even consider exercising emergency jurisdiction (Yadgarova v. Yaacov Chai Yonatanov, 144 A.D.3d 830 [2d Dept 2016] ["Since the child is no longer present in this State, even if the Family Court had a basis to exercise temporary emergency jurisdiction at the time it issued the orders appealed from, it no longer has jurisdiction to entertain the mother's custody petition."]).
The child was returned to Ms. R. on or about January 18, 2023, in satisfaction of a writ of habeas corpus. There is no indication that the child has since returned to New York or is currently present in the state. In fact, Mr. R. subsequently filed his own writ and a modification petition, which indicate that the father is unaware of where the child is currently residing. At this point, any relief sought by Mr. B. concerning Orion should be pursued in the State of Maryland.
V-00333-23.
V-03161-23 was filed on March 7, 2023. The Petition was dismissed on the same date by Judge Waksberg based on the Court's lack of jurisdiction.
V-04118-23 was filed on February 24, 2023.
This Court has communicated with the Baltimore Circuit Court, despite having no current basis to exercise temporary emergency jurisdiction. As per the Family Case Manager of the Court, Abigail Cohen, Ms. R. has filed a petition to modify child support and a petition for contempt alleging that Mr. B. failed to return the child Orion to her.
Based on the above decision, Mr. B.'s subsequent custody petition, docket V-04118-23, must also be dismissed.
DECISION: Motion to dismiss GRANTED.
WHEREFORE, THIS CONSTITUTES THE ORDER OF THE COURT.