Matter of Bernard P. v Lauren P.

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[*1] Matter of Bernard P. v Lauren P. 2012 NY Slip Op 50255(U) Decided on January 25, 2012 Family Court, Chemung County Brockway, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2012
Family Court, Chemung County

In the Matter of a Proceeding Under Article 10 of the Family Court Act Bernard P. (born 2009), A Child Under Eighteen Years of Age Adjudicated to be Neglected by

against

Lauren P., Respondent.



NN-01203-10/11A



Donald S. Thomson, Chemung County Department of Social Services Legal Division, Elmira (Chad R. Hammond of counsel), for petitioner

Law Offices of Sarah K. Soutar, Elmira, for respondent

Sullivan Trail Legal Society, Inc., Elmira (Dorothy K. Stevens of counsel), for the subject child

David M. Brockway, J.



This is a motion to dismiss a violation proceeding as untimely.

In January 2010, a child neglect proceeding was commenced by the Chemung County Commissioner of Social Services pursuant to Family Court Act article 10 against respondent. Finding that the petition, which alleged, in part, that respondent failed to perceive certain risks to the child, the Court directed respondent to submit to a forensic mental health examination. The child protective agency served a superceding neglect petition with leave of the court containing new allegations that respondent left the subject child with unapproved caretakers; requested another to purchase crack cocaine and provided the other with the money therefor; committed the crimes of petit larceny and menacing; lost her public assistance benefits and was served with an eviction notice. In May 2010, respondent consented to the temporary removal of the child from her home.

On June 14, 2010, respondent consented to a finding of neglect. Consequently, on the same date, the Court placed the child in the custody of the Commissioner of Social Services pursuant to section 1055 of the Family Court Act and directed respondent to comply with the terms and conditions of an Order of Supervision issued pursuant to section 1057 of the Family Court Act.

In July 2011, the child protective agency moved to adjudge respondent in violation of the Order of Supervision. Specifically, petitioner alleges that respondent, in sum and substance, failed to follow all recommended courses of treatment and failed to cooperate with all programs to which she was referred by refusing to enter a long-term women's treatment facility. Apparently, this refusal, together with other conduct by respondent, contributed to her unsuccessful discharge from a halfway house in May 2011.

In support of her motion to dismiss, respondent argues that the Order of Supervision had expired between the time of her discharge from the halfway house and the filing of the violation petition.[FN1] Petitioner argues in its answering affirmation that the Order of Supervision was impliedly extended at the permanency hearing held on June 1, 2011. Petitioner relies on the permanency order submitted by petitioner and signed by the Court which purports to extend respondent's period of supervision until completion of the next permanency hearing.

DISCUSSION

As at least one court has recognized and, as petitioner argues, "[n]owhere in the statutes or in the court rules is there mention of a specific time frame within which a petition for extension of supervision must be filed" (Matter of R. B., 176 Misc 2d 530, 531 [Fam Ct, Westchester County 1998]). That being said, it is beyond cavil that a court may not modify or extend an order of disposition unless an application for same is filed prior to expiration thereof; similarly, a violation of an order of disposition cannot be maintained where the application is filed after the order has expired (Family Ct Act § 1072 [providing punishment and remedy for violations where the application is filed "prior to the expiration of the period of an order of supervision"]; see Matter of Joseph B. v Sheena KK., 56 AD3d 968, 970 [3d Dept 2008]; see also People v Montgomery, 115 AD2d 102, 103 [3d Dept 1985]; People v Lee, 2 AD3d 878, 879 [2d Dept 2003]). Since the initial order has expired, the question thus distills to whether the Order of Supervision was impliedly extended at the permanency hearing.

Petitioner cites Family Ct. Act § 1057 and the provision's perceived lack of procedure for [*2]extending orders of supervision in support of its contention that the initial order could be extended by implication. Such reliance is misplaced. Family Ct. Act § 1057 establishes the standard for extension; other provisions set forth the procedure. These procedures clearly contemplate affirmative steps to extend placement:

At least sixty days prior to the expiration of an order of supervision, a child protective agency, irrespective of its permanency plan, is required to "report to the court, the parties, ... and the child's attorney on the status and circumstances of the child and the family and any actions taken or contemplated by such agency [such as extending supervision]" where "no application has [yet] been made seeking extension."

(Family Ct Act § 1058 [emphasis added]).[FN2],[FN3] In the absence of any statutory procedure, court rules require "the filing of a petition" (Uniform Rules for the Fam Ct [22 NYCRR] § 205.9). Therefore, whether by application or petition, petitioner was required to file something seeking extension of supervision containing allegations demonstrating good cause for such extension.[FN4],[FN5]

Even assuming the absence of any formal pleading requirements, and further assuming that supervision could be extended as an appurtenance of the permanency hearing, a court cannot grant relief in the absence of notice that such relief would be considered and an opportunity to be heard (see e.g. Citibank (South Dakota) N.A. v Ousterman, 279 AD2d 886, 886-87 [3d Dept 2001]). [*3]When, as in the instant case, a child is placed in the custody of the local commissioner of social services, a notice of permanency hearing and a permanency hearing report are required to be served upon a parent and his or her attorney (Family Ct Act § 1089 [b] [1]). Here, the notice of permanency hearing reflects that two copies of the report were provided to respondent's attorney; no report was provided directly to respondent. Nowhere in the report provided to counsel did petitioner indicate that it was seeking an extension of the Order of Supervision or that an extension thereof would be granted upon a continuation of placement. Nor does the statute itself notify respondent that an extension of supervision would be granted together with an extension of placement (see generally Dobkin v Chapman, 21 NY2d 490 [1968] [discussing reasonableness of notice]; cf. Matter of Tompkins County Support Collection Unit ex rel. Chamberlain v Chamberlain, 99 NY2d 328, 338 [2003]).

Separate and apart from the lack of any pre-hearing notice in the report or the statute, respondent was never put on notice at the permanency hearing that extension of supervision would be or was being considered. And, in fact, it never was. The Order of Supervision was never discussed by the parties or counsel or considered by the Court. No finding of good cause to extend supervision was made (or seemingly could have been made since the relief was never considered) as required for an extension pursuant to Family Ct Act § 1057. And, as relevant here, no decision was ever made to extend supervision.[FN6] The written order, however, as noted by petitioner, erroneously purports to do just that.

It is, of course, beyond dispute that a written order must conform strictly to the court's decision, and that when there is a conflict between the two, the decision controls and the order will be resettled accordingly.... Undoubtedly, the discrepancy between the court's decision and the ... order represent[s] a good faith misunderstanding over what relief was sought and granted. [The Court] nevertheless ha[s] the power, after motion on notice, to correct the mistake and to vacate the portion of the order not intended by its decision, even though the correction was as to a matter of substance.

(Di Prospero v Ford Motor Co., 105 AD2d 479, 480 [3d Dept 1984] [citations omitted]; see Matter of Dates v Mundt, 4 AD3d 639, 640 [3d Dept 2004] [noting that a discrepancy may be corrected via a motion to resettle or on appeal]; Stivers v Brownell, 63 AD3d 1516, 1517-18 [4th Dept 2009] [noting that a bench decision is controlling in the event that there is a conflict between an order and a decision]). Accordingly, the Court sua sponte moves to conform the order to the decision.

The issue raised by this motion is a direct result of the enactment of Article 10-A of the Family Court Act and related amendments of the act (L 2005, ch 3, § 18, 20, 27 [hereinafter "permanency legislation"]). Under prior law, a child could be placed "for an initial period of up to one year" subject to "successive extensions for additional periods of up to one year each" (Family Ct Act § 1055 [former (b)(i)]). In order to extend placement, a petition was required to be filed "at least sixty days prior to the expiration of the period of placement, except for good cause shown" (id. [emphasis added]). Similarly, a respondent could be placed under supervision "for an initial period of no more than one year" subject to "successive extensions of such supervision of up to one year each" (Family Ct Act § 1057). As mentioned, supra, under prior law, the child protective agency had to submit a progress report no less than sixty days prior to the expiration of an order of disposition where no application had been made seeking extension of such orders (Family Ct Act [*4]former § 1058). Thus, prior to the permanency legislation, the duration of placement orders and orders of supervision were both one year (Family Ct Act § 1057, supra).[FN7]

Now, as a result of the new legislation, where a child is placed, "the case ... remain[s] on the court's calendar and the court ... maintain[s] jurisdiction over the case until the child is discharged from placement and all orders regarding supervision, protection or services have expired" (L 2005, ch 3, pt A, § 27 codified at Family Ct Act § 1088). The child protective agency no longer is required to submit a progress report or file a petition to extend placement (id. § 18, 20 codified at Family Ct Act § 1055, 1058). Periodic reviews of foster care placements are now automatically heard every six months after the initial permanency hearing without the need for any application; placements must be reviewed more frequently "whenever [the court] deems necessary or desirable, or upon motion" (id. § 27 codified at Family Ct Act § 1088; see Family Ct Act § 1089 [a]).

In addition to differences in duration and new continuing jurisdiction provisions, the filing procedures and standards as between extensions of supervision and placement are now substantially different as well. As to placements, instead of filing an unsworn 60-day progress report or sworn extension petition, the child protective agency now must submit, no later than fourteen days before the hearing, "a sworn report ... regarding the health and well-being of the child, the reasonable efforts that have been made since the last hearing to promote permanency for the child, and the recommended permanency plan for the child" (L 2005, ch 3, pt A, § 27 codified at 1087 [e]; see id. codified at § 1089 [b]). Further, an "extension of placement" no longer requires a showing of good cause. The court's determination is now guided by the ubiquitous and only slightly less amorphous "best interests and safety of the child" standard (id. codified at Family Ct Act § 1089 [d]).

In contrast to the placement procedures created by the permanency legislation, section 1057 of the Family Court Act and the parts of section 1058 of the Family Court Act addressed to orders of supervision were left unchanged. Principles of statutory construction dictate that "such portions are continued in effect, with the same meaning and effect as they had before the amendment" (Statutes § 193 [a]). As a result, orders of supervision continue to extend for up to one year, while placement orders are now reviewed at least every six months. More importantly, orders of supervision, unlike placement orders, are not automatically reviewed; an application is still required (Family Ct Act § 1058, 1088; CPLR § 2211).

Conceivably, harmony can still be achieved using the existing (albeit disparate) rules of procedure for placement orders and orders of supervision. For example, in its application for an extension of supervision, the child protective agency could limit the duration of its requested relief to the next permanency hearing date. Although not part of the current "official form," the agency could nevertheless request an extension of supervision together with its notice of permanency hearing (see CPLR 2214 [a] [providing that "[r]elief in the alternative or of several different types may be demanded"]; Family Ct Act § 165 [a]; see also Uniform Rules for the Fam Ct [22 NYCRR] § 205.11). The contents of the sworn permanency hearing report may support both continued placement and supervision, particularly where each form of relief is specifically articulated.[FN8] As well, the service requirements under the permanency legislation satisfy the general service [*5]requirements for service of papers in a pending proceeding (compare Family Ct Act § 1089 [b] [1] [directing service by regular mail on parties and counsel], with CPLR 2103 [b] [2] [directing service by regular mail on counsel only]). Thus, methods may be employed to effectively operate under the current statutory scheme.

Notwithstanding the fact that the statute remains viable even if disjointed, it is suggested that statutory and rule changes should be made to address the anomalies described herein. Revision by the state court administrator of the notice of permanency hearing form for the purpose of seeking extension of other orders of disposition would be appropriate (see New York State Unified Court System, Notice of Permanency Hearing, available at http://www.nycourts.gov/forms/familycourt/pdfs/PH-4.pdf; see also Family Ct Act § 214).[FN9] Also appropriate would be legislation to completely harmonize the dispositional orders contained in Article 10 of the Family Court Act with the permanency legislation codified in Article 10-A of the act.[FN10]

This constitutes the decision and order of the court.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

RJB: 1/25/12 Footnotes

Footnote 1:In view of the Court's determination hereinafter that the violation petition should be dismissed as untimely, it is not necessary to reach the additional argument set forth in respondent's motion.

Footnote 2:This statutory obligation is mandatory and not contingent upon inclusion in any court order. The statute uses the term "shall." For an insightful discussion of the meaning of the word, see State v Shannon, 185 P3d 200 [Haw. 2008].

Footnote 3:No such report was received in this case, which could have provided some notice of the relief petitioner intended to seek.

Footnote 4:While continued placement outside the home may satisfy the good cause standard, petitioner is required to plead and prove its case and the court is required to determine whether it has done so.

Footnote 5:The Court is aware that the footnote to the official extension of supervision form suggests that no petition or any other application is required where the child is placed outside the home (see New York State Unified Court System, Petition for Extension of Supervision, available at http://www.nycourts.gov/forms/familycourt/pdfs/10-27.pdf; see Family Ct Act § 214). No authority, however, is cited for this proposition and the Court has found no support for it in statute or caselaw. The footnote is therefore disregarded as erroneous.

Unless otherwise prescribed by law, a family court proceeding is "commenced by the filing of a petition" (Uniform Rules for the Fam Ct [22 NYCRR] § 205.9). A court, though, retains continuing jurisdiction when a child is placed and "a new petition is never needed[;] [e]very requested judicial action, including continuation of a placement, a termination of placement, or the modification of an order, is addressed by filing and serving a motion" (Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1089 [2010 ed], at 214-15; see Family Ct Act § 1086). Accordingly, petitioner was required to file an "application ... seeking extension" (Family Ct Act § 1058; CPLR § 2211).

Footnote 6:To be sure, under the circumstances, any extension of supervision would have violated respondent's right to due process.

Footnote 7: In 1989, the Legislature reduced the duration of placement and supervision orders from eighteen months to one year (L 1989, ch 458, §§ 2, 3).

Footnote 8:See supra note 4.

Footnote 9:Any revised form for placement cases need not address extension of the other orders of disposition described in section 1058 of the Family Court Act since orders authorized pursuant to paragraphs (i) and (ii) of Family Court Act § 1052(a) may not be combined with an order of placement (Family Ct Act § 1052 [a]). In addition, an order of protection authorized under paragraph (iv) of Family Court Act § 1052(a) is separately authorized by the permanency legislation (Family Ct Act § 1089 [d] [2] [viii] [D]).

Footnote 10:The specific inclusion of an order of protectionone of the orders authorized at disposition—as an other order authorized at a permanency hearing to the exclusion of an order of supervision seems to implicate the maxim expressio unius est exclusio alterius, implying that the Legislature intended the exclusion (see Statutes § 240). In any event, to the extent such an order is authorized by the permanency legislation, it must conform to the court's decision and be clear and unambiguous in order to potentially later hold a respondent in violation thereof. Even were the above matters not an issue, the order here did not satisfy these requirements either.