Matter of Brett G.

[*1] Matter of Brett G. 2009 NY Slip Op 50091(U) [22 Misc 3d 1111(A)] Decided on January 21, 2009 Supreme Court, Clinton County Lawliss, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 21, 2009
Supreme Court, Clinton County

In the Matter of Brett "G.", A Child Under Twenty-One Years of Age Neglected by DAWN "B.", Respondent. In the Matter of CHLOE "B.", A Child Under Twenty-One Years of Age Neglected by DAWN "B.", Respondent.



In the Matter of Chloe "B.", A Child Under Twenty-One Years of Age Neglected by Dawn "B.", Respondent.



NN-00055-08/08A



APPEARANCES:

Clinton County Department of Social Services, Plattsburgh (John Dee, of counsel) for Petitioner

Dawn "B.", pro se

Jason "B.", pro se

Linda "S." pro seThomas "S.", pro se

Cynthia O'Connell, Plattsburgh, Law Guardian for the subject children

Timothy J. Lawliss, J.

On November 12, 2008, the Clinton County Department of Social Services (hereinafter "the Department"), filed two Petitions seeking the Modification and/or Reconsideration of Permanency Hearing Orders and Orders of Protection. The issue presented is whether the filing of a petition is the proper procedure to seek modification of a permanency hearing order; or rather, whether such relief should be sought by motion.

"Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute," Johna M.S. v Russell E.S., 10 NY3d 364 [2008]. See also, McKinney's Const. Art. 6, §13 and Family Ct Act §§ 114 and 115. Family Ct Act §1088 provides the relevant statutory authority for the issue presented and with regard to rehearing a matter provides that: [i]f a child is placed .... the 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, protection or services have expired. The court shall rehear the matter whenever it deems necessary or desirable, or upon motion by any party entitled to notice in proceedings under this article, or by the law guardian for the child, and whenever a permanency hearing is required by this article... (emphasis provided)

Family Ct Act §1088 specifically authorizes the filing of motions for rehearing, not the filing of a petition.

Beyond the language of Family Ct Act §1088, the Court finds that the continuous nature of Family Ct Act, Art. 10-A cases ("i.e. the principle that the Court retains continuous jurisdiction (and involvement) from the day a child has been placed until the date permanency is achieved" Sobie, Practice Commentaries (McKinney's Cons Laws of NY, Book 29A, FCA 1086, 2008, Cumulative Pocket Part, at 238)) supports the conclusion that the proper procedure is the filing of a motion.

One of the consequences of case continuity in Family Ct Act, Art. 10-A matters was addressed recently by the Appellate Division, Third Department. In the Matter of John H. et. al, 56 AD3d 1024 [3d Dept, 2008] the subject children were children freed for adoption, but not yet adopted. In Matter of John H., relatively soon after the Family Court conducted a permanency hearing pursuant to Family Ct Act, Art. 10-A, the Law Guardian served the local Department of Social Services with notice to take deposition of a caseworker and a demand for the production of Petitioner's records relating to the children. Petitioner returned the notice and demand without moving for a protective order, claiming the law guardian's notices were invalid. The Law Guardian moved to compel compliance with her demands. The Family Court considered the law [*2]guardian's motion as an application for preaction discovery pursuant to CPLR3102(c),[FN1] and granted the motion.

The local Department of Social Services appealed the Family Court's ruling. The Appellate Court modified the Family Court's order for reasons not relevant to the issue presented here. Providing guidance with respect to the issue in this case, the Appellate Court found that because of the continuing nature of Family Ct Act, Art 10-A matters, the "Family Court did not need to consider the application as one for preaction or premotion discovery {emphasis provided}," Matter of John H, 56 AD3d at 1025. In other words, the rules for a pending action control procedures between permanency hearings.

Family Ct Act §165 requires that the CPLR be followed when the Family Court Act itself does not provide the method of procedure in any proceeding in which the family court has jurisdiction. CPLR 304 provides that a petition is used to commence a special proceeding. Because an Art 10-A proceeding continues from removal to permanency, and thus from permanency hearing to permanency hearing, commencement is not necessary. Therefore, petitions are not a proper method to seek modification.[FN2]

Finally, the Court compares Family Ct Act, Art 10-A to Family Ct Act, Art 10, specifically sections 1054 and 1057. Family Ct Act §§ 1054 and 1057 regard supervision of a parent or person legally responsible for an abused or neglect child. In matters where children are not placed, Family Ct Act, Art. 10 includes no provisions for the case remaining on the court's calendar and the court maintaining jurisdiction. In these instances, petitions (when extension of supervision is sought) are routinely filed, (see, In re James U., 866 NYS.2d 370 [3d Dept 2008] and In re Caleb L, 289 AD2d 902 [3d Dept 2001]). As noted in Sobie, Practice Commentaries (McKinney's Cons Laws of NY, Book 29A, FCA 1086, 2008, Cumulative Pocket Part, at 238):

By enacting, Article 10-A, the legislature has created a sharp division between cases in which the child has been placed or removed from home, and cases where, although a finding of abuse and neglect has been made, the child remains at home .... When the child has not been placed or removed, most Article 10-A provisions are inapplicable and the case consequently does not remain on the Court's calendar. Hence a new petition must be filed if an extension of supervision is sought, the petition and summons must be served, and the case is calendared as a new matter.....

For all the reasons stated above, the Court concludes that the proper method to seek a rehearing of the matters covered by Family Ct Act, Art 10-A is the filing of a motion. As such, the Court will dismiss the Department's petitions seeking modification.

IT IS, NOW, THEREFORE,

ORDERED, that the Clinton County Department of Social Services' Petitions for Modification and/or Reconsideration of Permanency Hearing Orders and Order of Protection [*3](bearing docket no(s)): NN-00056-08/08A and NN-00056-08/08A) are hereby DISMISSED without prejudice; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of 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 law guardian upon the appellant, whichever is earliest.

Dated: January 21, 2009ENTER

_____________________________

Honorable Timothy J. Lawliss

Acting Supreme Court Justice Footnotes

Footnote 1:CPLR 3102(c) addresses the method of obtaining disclosure before an action is commenced.

Footnote 2:The Court notes, as an additional point in support of its conclusions, that Uniform Rules for Trial Cts [22 NYCRR] §205.7(c) specifically provides that "Permanency reports submitted pursuant to Article 10-A shall not be considered new petitions."