Matter of Brenda P. v Patrisha W.

[*1] Matter of Brenda P. v Patrisha W. 2010 NY Slip Op 52253(U) [30 Misc 3d 1203(A)] Decided on December 23, 2010 Fam Ct, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2010
Fam Ct, Clinton County

In the Matter of a Proceeding under Article 6 of the Family Court Act. Brenda P., Petitioner,

against

Patrisha W. and Cody C., Respondent.



V-xxxxx-xx



Clinton County Department of Social Services, Plattsburgh (Christine G. Peters, Esq., of counsel)

Omshanti Parnes, Esq., Plattsburgh, for the subject child

Timothy J. Lawliss, J.

Patrisha "W." and Cody "C." are the parents of Martial "C.", a boy born on March 2, 2008. On November 9, 2010, Brenda "P.", Martial's great aunt, filed a petition seeking custody of Martial. In her petition, Ms. "P." alleges that Martial was born with gastroschisis, a life threatening condition that requires daily medical care and intense monitoring. Ms. "P." alleges that the parents have not been providing adequate care for the subject child.

On November 10, 2010, based upon Ms. "P."'s allegations, the Court, pursuant to FCA § 1034, directed that the Clinton County Department of Social Services (hereinafter CCDSS) conduct a child protective investigation of the subject child and both of his parents. On November 16, 2010, the CCDSS filed a seven page investigation report in response to the Court's order. In their report, the CCDSS states:

A review of child protective services records show one indicated report against [both parents] for inadequate guardianship of Martial. This report was dated December 26, 2008 and involved [*2]concerns regarding domestic violence between [the parents].

The Department's investigation report did not provide any additional information regarding this indicated CPS report. The CCDSS concluded its investigation report by stating that the CCDSS did not identify any credible evidence to support the allegation that Martial's parents were not adequately meeting Martial's medical needs.

The attorney for the subject child moved this Court for, among other things, an order requiring the CCDSS to release to the Court "the contents of all child protective reports indicated against the [parents], and any other information, including written reports and photographs taken, concerning such reports in the possession of the [CCDSS]" pursuant to Social Services Law § 422(4)(A)(e). In support of her motion, the attorney for the child submitted her own affidavit alleging that Martial was recently released to his parents after a month long hospitalization which was necessitated by life threatening complications related to his illness. The attorney for the child further alleges that Martial's father has perpetrated acts of domestic violence against Martial's mother, both before and after the birth of Martial. The attorney for the child provided a reasonable basis for her domestic violence allegations.

Neither parent, nor the great aunt seeking custody, opposed the attorney for the child's motion. The CCDSS filed the only response in opposition to the motion.

The CCDSS' first argument in opposition to the motion is that "the attorney for the child's request is overly broad and appears to be a fishing expedition for information that simply does not exist." The Court finds this argument to be utterly meritless. The CCDSS' own investigation report, which was signed by the same attorney who submitted the affidavit in opposition to the pending motion, specifically states that an indicated report exists and concerns domestic violence between these parents that resulted in inadequate guardianship of the subject child.

The CCDSS' second argument in opposition to the motion is that the CCDSS conducted a painstakingly thorough investigation as a result of the Court's FCA § 1034 order, provided a detailed report and reached the conclusion that the child was being adequately cared for by his mother. Certainly, the CCDSS' report was detailed and the CCDSS is entitled to take the position that the mother is providing adequate care for the subject child; however, the fact that the CCDSS concludes something is true does not require the rest of the world to accept their conclusion. The attorney for the child is entitled to take a different position and advocate for her client as she deems best. To decide this motion, the Court need not decide whether or not the CCDSS' position regarding the mother's care is accurate or inaccurate. The Court need only make that determination at the end of a trial. A trial in which the attorney for the child is free to present material, relevant and competent evidence to support her position.

The third argument advanced by the CCDSS is that "the attorney for the child has enough information as provided by the 1034 Investigation Report and this [motion] should be denied." The CCDSS does not have authority to decide when the attorney for the child has all the information that is necessary and should refrain from seeking more. As noted previously, CCDSS' report provided virtually no details regarding the indicated CPS report from December of 2008. Given the issues involved in this case, the Court understands why the attorney for the child seeks more details. This is no "fishing expedition", this is thorough quality advocacy.

Social Services Law § 422(4)(A) provides that child protective services indicated reports [*3]"as well as any other information obtained, reports written or photographs taken concerning such reports in the possession of the ... local department [of social services] ... shall be confidential and shall only be made available to ... (e) a court, upon a finding that the information in the record is necessary for the determination of an issue before the court ...." The Court finds that the information requested by the attorney for the child is necessary for the determination of two issues presented in the instant case. First, do extraordinary circumstances exist which would permit the Court to consider awarding custody to a non-parent over the objection of the parents? see, Matter of Bennett v Jeffreys, 40 NY2d 543, 387 NYS2d 821 (1976). Second, if such extraordinary circumstances do exist, is it in the best interest of the subject child to award custody to his great aunt? Obviously, information regarding domestic violence between the parents is relevant to both issues. Although certainly not dispositive, the Court also finds it relevant to this motion that neither parent objects to the Court granting the motion.

ACCORDINGLY, IT IS HEREBY

ORDERED, that motion number 1 is hereby granted; and it is further

ORDERED, that the Clinton County Department of Social Services shall, on or before December 29, 2010, provide the Court with certified copies of the indicated report dated December 26, 2008 finding that his parents provided inadequate guardianship of Martial (the report referenced on page 7 of the CCDSS' investigation report dated November 16, 2010) and any other information obtained, reports written or photographs taken concerning said report in the possession or control of the Clinton County Department of Social Services; 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.

SO ORDEREDENTER

Dated:Plattsburgh, New York

December 23, 2010

Hon. Timothy J. Lawliss

Judge of the Family Court