Matter of Austin T.

[*1] Matter of Austin T. 2010 NY Slip Op 50427(U) [26 Misc 3d 1236(A)] Decided on March 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2010
Supreme Court, Clinton County

In the Matter of a Permanency Hearing held pursuant to Article 10-A of the Family Court Act concerning the child Austin T.



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Appearances:Clinton County Department of Social Services, Plattsburgh (Michael J. Hartnett of counsel) for Petitioner

Meredith A. Neverett, Plattsburgh, with and for Amanda "T."

Edward "T." IV, pro se

Edward "T." III, pro se

Sally "T.", pro se

Omshanti Parnes, Plattsburgh, Attorney for Austin "T."

Timothy J. Lawliss, J.

On July 29, 2009, the Clinton County Department of Social Services (hereinafter "the Department"), filed a petition alleging that Amanda "T." (hereinafter "the mother") neglected her son Austin "T." (d/o/b xx/xx/xxxx). On September 9, 2009, upon the mother's consent pursuant to FCA § 1051(a), the Court issued an order finding that the mother neglected the subject child. On September 16, 2009, this Court issued an Article 10 Order of Disposition placing the subject child with his paternal grandparents, Edward "T." III and Sally "T.". The placement was to continue until the completion of a permanency hearing scheduled to commence on March 8, 2010.

During the permanency hearing on March 8, 2010, the Department advocated that the subject child be discharged to the permanent custody of his paternal grandparents. The mother opposed that disposition and challenged the Court's legal authority to grant the Department's request.

Family Court Act § 1089-a sets forth the substantive and procedural requirements for awarding permanent custody pursuant to Article 6 of the Family Court Act to relatives or other suitable persons when a child is placed pursuant to Article 10 or Article 10-A of the Family Court Act. Specifically, Family Court Act § 1089-a(a) provides, in part: [*2]

Where the permanency plan is placement with a fit and willing relative, the court may issue an order of custody or guardianship in response to a petition filed by a relative or suitable person seeking custody or guardianship of the child under article six of this act at a permanency hearing held pursuant to this article and terminate the order pursuant to article ten of this act if [certain case specific factual findings are made].

This provision essentially limits the authority of the Court to award Article 6 custody to a relative. The Court may only consider awarding permanent custody to a relative when, among other requirements, (1) the permanency planning goal is set as "placement with a fit and willing relative"; and (2) a petition has been filed by a relative seeking custody or guardianship pursuant to Article 6 of the Family Court Act. Accordingly, the Court holds that Family Court does not have the legal authority to discharge a child to the permanent custody of a non-parent [FN1] as a result of a Family Court Act Article 10-A permanency hearing unless the non-parent has filed a petition under Article 6 of the Family Court Act seeking permanent custody and the Court conducted one hearing to resolve both the Article 6 petition and the permanency hearing.

In this case, assuming without finding, that the Department's permanency planning goal qualifies [FN2], the Court may not even consider the Department's request that permanent custody be awarded to the paternal grandparents because the paternal grandparents have not filed a petition seeking custody or guardianship pursuant to Article 6 of the Family Court Act.

ENTER

Dated:Plattsburgh, New York

March 16, 2010

Hon. Timothy J. Lawliss

Acting Supreme Court Justice

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.Footnotes

Footnote 1: This holding does not address the situation where the original Article 10 Respondent was a non-parent who had custody of a child prior to the commencement of placement.

Footnote 2:In fact, the permanency planning report indicates that as of December 23, 2009, the Department established the permanency planning goal as "legalized living arrangement with relative/resource." This language does not match the statutorily enumerated goals set forth in FCA § 1089(c)(1). Nevertheless, it appears that the Department's intent is for the goal to be permanent placement with a fit and willing relative. Why the Department did not use the statutory language is unknown to the Court.