Matter of K.O. (J.C.)

[*1] Matter of K.O. (J.C.) 2015 NY Slip Op 25273 Decided on July 22, 2015 Family Court, Kings County O'Shea, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 22, 2015
Family Court, Kings County

In the Matter of K.O. A Child Under Eighteen Years of Age Alleged to be Neglected by

against

J.C., M.O., F.O., Respondents.



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Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Danielle Stevens, Esq., 330 Jay Street, Brooklyn, NY 11201, telephone (718) 802-2728.

Sarah Lorr, Esq., attorney for the Respondent Grandfather, Brooklyn Defender Services, 180 Livingston Street, Suite 300, Brooklyn, NY 11201 (347) 592-2597

Kyle Sosebee, Esq., attorney for Respondent Mother, 147 Prince Street, Brooklyn, NY 11201 (347) 480-8757.

Mindy Gress, Esq., attorney for the Child, 44 Court Street, Suite 905. Brooklyn, NY 11201 (718) 624-1327

The Grandmother is self-represented.
Ann E. O'Shea, J.

Petitioner, the Administration for Children=s services (APetitioner@ or AACS&commat), commenced this proceeding on February 3, 2015, charging Respondents J. C., (the AMother&commat), M. O., (the AMaternal Grandfather&commat), and F. O., (the AMaternal Grandmother&commat), with the neglect of K. O. born on February 19, 2000. The Mother, who was 14 years old when K. O. was born, lives in California and is alleged to have declined to plan for the child, after the Maternal Grandparents, who have cared for the child all her life, refused to permit the child to return home when she was ready for discharge from Brookdale Hospital after a mental health evaluation.[FN1] K. [*2]O. was remanded on February 3, 2015, remains in the care and custody of the Commissioner, and currently is placed in the Euphrasian Residence. Petitioner plans to transfer K. O. from the Euphrasian Residence to Hawthorne Cedar Knolls, a residential treatment center in Westchester, NY

Currently before the Court is an order to show cause filed by K. O.=s Attorney seeking an order precluding ACS from moving the child from her current placement in the Euphrasian Residence to Hawthorne Cedar Knolls. The Attorney for K. O. argues that Hawthorne Cedar Knolls provides a higher level of care than is necessary or appropriate for K. O. and seeks review of Petitioner=s decision to move her through a Alevel of care@ hearing. ACS opposes the motion on the grounds that the Court lacks the legal authority to interfere in the Commissioner=s placement decisions. Both parties submitted briefs on the issue.

Family Court Act ' 1017 sets out the steps to be followed in determining the appropriate placement of a child when the child is initially removed from his or her home. (Matter of Paige G. (Katie P.), 119 AD3d 683 [2d Dep't 2014]; FCA '1017). ACS is required in the first instance to locate relatives of the child to inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or for seeking custody or care of the child (see Family Ct Act ' 1017 [1]). The Family Court is then required to determine if the child can suitably reside with any such relative (see Family Ct Act ' 1017 [1] [a], [b]). If a suitable relative exists, the Family Court may either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent (see Family Ct Act ' 1017 [2] [a]).

Only if no suitable relative is located may the Family Courtconsider whether another placement would be appropriate (Matter of Paige G. (Katie P.), 119 AD3d 683, 684 [2d Dep't 2014] FCA '1017[2][b]). If there are no other suitable resources for the child, the Court may elect to remand the child and place her in the custody of the local commissioner of social services (FCA ' FCA '1017[2][b]). If placement in a particular foster home would further the child=s best interests, the Court may direct the Commissioner to have the child reside in a specific certified foster home (id). In addition, the court may direct that the child not be placed in a specific foster home if such placement would be contrary to the child=s best interests (see In the Matter of Adrienne M., 153 Misc 2d 803, 808-09 [Fam. Ct. Monroe County 1992], aff=d 201 AD2d 938 [4th Dept. 1994]; In the Matter of Gunner T., 44 Misc 3d 539, 541 [Fam. Ct., Clinton County 2014]). There are no further statutory provisions expressly granting the Court authority to make a placement decision in the child=s best interests.

Social Services Law ' 398 expressly grants the Commissioner both the authority and responsibility to A[p]lace children in its care and custody or its custody and guardianship, in suitable instances, in family homes, agency boarding homes, group homes or institutions under the proper safeguards@ (Social Services Law 398[6](g)(1)) and to A[s]upervise children who have been cared for away from their families until such children become twenty-one years of age or until they are discharged to their own parents, relatives within the third degree or guardians, or adopted@ (Social Services Law ' [6](h)); see also In re Brian L, 51 AD3d 488, 495-96 [1st Dept. 2008]).

FCA '255 authorizes the Family Court to Aorder any state, county municipal and school district officer and employee to render such assistance and cooperation as shall be within his legal authority, as may be required to further the objects of this act . . . .@ However, Section 255 [*3]does not permit the Family Court to invade the discretionary authority of the state agency authorized to provide appropriate care for a child in its custody (see Matter of Lorie C. , 49 NY2d 161[1980]). In Lorie C., the Court of Appeals held that, while "section 255 authorizes an order requiring the doing of an act within the legal authority of the official to whom the order is directed the power to order 'assistance and cooperation' [it] cannot be read as permitting an order which denigrates from that officer's statutory authority, any more than it can be read as expanding such an official's authority into areas not granted by statute" (49 NY2d at 171). Thus, Family Court has no authority to order ACS to provide a child with specific medical or surgical care, the determination of which is within ACS=s discretion (In re Brian L, 51 AD3d 488, 495-96 [1st Dept. 2008]); nor may the Court order the removal of a child from a residential treatment center and placed elsewhere (In re Philip J., Jr., 280 AD2d 1005, 1006 [4th Dept. 2001]; nor order the Commissioner to certify the person with whom the child is placed as an Aemergency foster parent@ (In the Matter of Jermaine H., 79 AD3d 1720, 1721 [4th Dept. 2010]; see also Matter of Ronald W., 25 AD3d 4, 12 (1st Dept. 2005)(Family Court does not have authority to order NYS Office of Mental Retardation and Developmental Disabilities to reevaluate a 20-year-old individual and place him in an Aappropriate@ facility) and Matter of Enrique R., 126 AD2d 169, 172 [1st Dept.1987] (Family Court has no authority to order ACS to commence a special proceeding against NYC Housing Authority on behalf of foster child and his grandmother)).

While FCA '1017[2](b) grants Family Court discretion to order that a child be placed B or not placed B in a particular foster home,[FN2] it does not grant the Court authority to determine the level of care to be provided to the child, i.e., whether the child should be placed in a family home, an agency boarding home, a group home or an institution. Such determination is specifically within the discretionary authority of the Commissioner. Thus, this Court may not compel ACS to accede to a different placement plan for K. O. than the one which, in its discretion, it has selected for her. K.O=s remedy does not lie in this Court, which lacks subject matter jurisdiction over challenges to the Commissioner=s discretionary decisions. However, ACS=s decisions are subject to review in an Article 78 proceeding under an abuse of discretion standard (In re Brian L., 51 AD3d at 500; see also In re Application of D.F., 43 Misc 3d 746 [Sup. Ct. NY Co. 2014](review of ACS refusal to pay for medical procedures to address gender dysphoria)). Accordingly, the motion seeking review of ACS=s determination to place K. O. in a residential treatment center is denied.

This is the decision of the Court. The Clerk is requested to enter an order in accordance with this decision.

Dated: July 22 , 2015__________________________________

Ann E. O=Shea, AJSC Footnotes

Footnote 1:The Grandparents are also alleged to have abused K. O. physically by hitting and choking her and verbally abusing her.

Footnote 2:The question of whether FCA 1017 [2](b) grants Family Court authority to choose between one or another placement (other than specific certified foster homes) providing the same level of care is not presently before the Court.