Opinion
No. B-01696/7/8/9-21
10-26-2022
In the Matter of the Commitment of Guardianship and Custody pursuant to Section 384-b of the Social Services Law, of SM, SM, SP, SP, and JP, Jr. Children Under Eighteen Years of Age Alleged to be Permanently Neglected by SP, (F/K/A SL), Respondent.
Carly Mousseau, Esq., attorney for Albany County Department for Children, Youth, and Families Jessica Meigher, Esq., attorney for respondent Kayla Leder, Esq., attorney for the P children
Unpublished Opinion
Carly Mousseau, Esq., attorney for Albany County Department for Children, Youth, and Families
Jessica Meigher, Esq., attorney for respondent
Kayla Leder, Esq., attorney for the P children
Richard Rivera, J.
The Albany County Department for Children Youth and Families (hereinafter "the Department") filed a petition to terminate the parental rights of the respondent Mother on May 7, 2021 pursuant to Section 384-b of the Social Services Law. The respondent filed a Motion to Dismiss the petition on June 24, 2022. The petitioner filed an affidavit in opposition on July 20, 2022 and the attorney for the P children filed an affirmation in opposition on or about July 15, 2022. The attorney for the M children did not submit a response to the motion.
In the petition, the Department asserts that the children have been in care in excess of thirty three months prior to the date of the filing of the petition, that the respondent has substantially and continuously or repeatedly failed to plan for the future of her children, and that the best interests of the children will be promoted by the commitment of guardianship and custody to the petitioner. The petitioner seeks a finding that the children are permanently neglected and an order terminating the parental rights of the respondent mother.
In the Motion to Dismiss, counsel for respondent posits that the permanency goal contained in the most recent permanency report dated February 18, 2022 was stated to be "Return to Parent". Counsel for respondent further argues that the petitioner has not fulfilled their obligation to provide services to the petitioner.
The permanency report dated February 18, 2022 was contested and for various reasons including change of counsel and scheduling conflicts, the permanency hearing was not completed until September 21, 2022.
In her opposition to the motion counsel for petitioner asserts that the respondent fails to set forth a basis for the dismissal of the petition and contends that the petitioner is required to file a petition to terminate parental rights if the children have been in foster care for 15 out of the most recent 22 months pursuant to the Adoption and Safe Families Act.
In her affirmation in opposition the attorney for the P children notes that the determination of a motion to dismiss requires that the allegations contained in the petition must be considered as true and that the assertions contained in the petition are factual issues to be determined at trial.
CONCLUSIONS OF LAW
The Motion to dismiss is granted as to the three younger children, S P, S P, and J P, Jr.
The Court recognizes that Social Services Law §384-b directs the filing of a petition to terminate the parental rights of a parent based upon permanent neglect when the children have been in care for 15 of the most recent 22 months. Social Services Law 384-b (7). However, the Court finds that it is improper to proceed to a hearing on a petition to terminate the parental rights of the respondent when the permanency goal is return to parent. See Matter of Julian P., 106 A.D.3d 1383, 1383 (3rd Dept. 2013); see also Matter of Joseph PP., 178 A.D.3d 1344, 1345-1356 (3rd Dept. 2019); see also Matter of Dakota F., 92 A.D.3d 1097, 1099 (3rd Dept. 2012); see also Matter of Xavier XX., 192 A.D.3d 1210, 1211 (3rd Dept. 2021).
The Court has conducted an exhaustive search of caselaw and finds that the Appellate Division has repeatedly noted that a proceeding to terminate the parental rights of a parent is not appropriate where the permanency goal in effect is return to parent. In Julian P., the Appellate Division stated that the permanency goals contained in FCA§ 1089 "are listed as alternatives, with the court to choose only one" and that "nothing in the statute indicates that the court may select and impose on the parties two or more goals simultaneously". The Court further continued that "the statute contemplates the commencement of termination proceedings against a parent only when the permanency goal is placement for adoption". Id. In Julian P., the family court directed the agency to commence a termination proceeding against the respondent father when the permanency goal in place for the mother remained return to parent. The Appellate Division reversed the family court and held that proceeding with a termination as to one parent when the permanency goal was reunification with the other parent is inconsistent with the statutory goals (of FCA §1089). Id.
In Dakota F., the Appellate Division likewise stated" the permissible options for the permanency goal are listed as alternatives, with the court to choose only one." Matter of Dakota F., 92 A.D.3d 1097 (3rd Dept. 2012). Once a permanency goal has been chosen and ordered by the Court, the agency is under a continuing obligation to engage in reasonable efforts to achieve the stated goal. FCA §1089 (d)(iii); see also Matter of Desirea F., 136 A.D.3d 1074, FN 4 (3rd Dept. 2016).
In this case, a contested permanency hearing was held at the culmination of which the Court found that based upon the children's best interests and safety, the goal should remain return to parent (the respondent mother) for the younger three children, S P, S P, and J P, Jr. The Court's determination of the return to parent permanency goal was issued over the objection of the petitioner. Given the stated goal which was ordered at the conclusion of the permanency hearing on September 21, 2022, the Department remains obligated to work with the respondent mother towards the goal of returning the 3 younger children to the Mother.
While the instant proceedings pertain only to one parent, this Court interprets the directives of the Appellate Division to apply. The permanency goal remains return to parent, the respondent Mother. The Department is obligated to continue to work towards that goal and by undertaking to prosecute a termination of the respondent mother's parental rights, the Department is engaged in efforts that are in direct contradiction to their obligation to work towards reunification of the children with the mother. See Matter of Joseph PP., supra (stating "petitioner cannot reasonably work toward the goal of placing the child for adoption - which pursuant to the statute requires petitioner to file a petition to terminate respondent's parental rights - while at the same time trying to return the child to his parent). This Court concludes that based upon the guidance set forth by the Appellate Division, the Department cannot be deemed to be reasonably working toward the stated goal of returning the children to the Mother while at the same time prosecuting a termination of the Mother's parental rights.
The Court further notes that statutory language contained in Social Services Law 384-b provides that it is a compelling reason not to file a termination of parental rights proceeding when the child has a permanency goal other than adoption. SSL 384-b(3)(l). The statutory provisions pertaining to the initiation of a termination proceeding provides that "The guardianship of the person and the custody of a destitute or dependent child may be committed to any authorized agency, or to a foster parent authorized pursuant to section 1089 of the family court act to institute a proceeding under this section, or to a relative with care and custody of the child, by order of a surrogate or judge of the family court". While not clearly expressed as a condition precedent to proceeding on a termination proceeding, the language of SSL 384-b appears to presuppose that a termination proceeding would not be prosecuted by an agency unless and until the permanency goal has been changed to freed for adoption pursuant to FCA §1089.
Based upon the foregoing the Court grants the Motion to Dismiss in regard to the younger children S P, S P, and J P, Jr.
The Motion to Dismiss is denied as to the older M children. At the culmination of the permanency hearing on September 21, 2022, the Court changed the permanency goal for the older two children to placement for adoption and the filing of a Termination of Parental Rights petition.
The respondent has not set forth a basis for the dismissal of the petition to terminate parental rights as to the older two children and it is un-controverted that the children have been in care 15 of 22 months. The arguments raised by respondent that the petitioner has not fulfilled their obligation to provide services to the mother is a factual issue to be determined after a hearing.
Based upon the foregoing the petition is dismissed as to the P children, dockets B-01699-21, B-01700-21, and B-01696-21.
The trial on the termination of the respondent's parental rights as to the M children shall proceed as scheduled on October 31, 2022.
This constitutes the decision and order of the Court.