Matter of Elliott G. (Patricia G.)
Annotate this CaseDecided on March 23, 2018
Family Court, Clinton County
In the Matter of Elliott G., A Child Under the Age of Eighteen Years of Age, Alleged to be Neglected by Patricia G., Respondent.
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Clinton County Department of Social Services, Plattsburgh (Allison W. Mussen, Esq., of counsel)
Edward D. Meyer, Esq., Plattsburgh, for Patricia G.
Hannah J. Fleury, Esq., Plattsburgh, as Attorney for the Child
Timothy J. Lawliss, J.
On October 29, 2016, Patricia G. gave birth to a boy named Elliott G.. On November 7, 2016, the Clinton County Department of Social Services [hereinafter "the Department"] filed a petition with this Court pursuant to Article 10 of the Family Court Act alleging that Ms. G. had neglected Elliott. On November 10, 2016, this Court issued an order temporarily removing Elliott from Ms. G's care and placing the child in the care and custody of the Commissioner of the Department. The Commissioner has maintained custody of Elliott continuously since that date[FN1] .
On January 4, 2017, while being represented by counsel and after the Court fully informed her of the consequences of her actions, Ms. G. decided to voluntarily withdraw her appearance in this action and default with respect to fact-finding. As a result of her decision not to contest the allegations contained in the petition, this Court issued a Determination Upon Fact-Finding Order finding that Ms. G. demonstrated such flawed parental judgment that any child left in her care would be at imminent risk of harm and Elliott was a neglected child as that term is defined by FCA §1012(f)(i)(B).
By Notice of Motion dated January 4, 2018, the Department seeks an order, pursuant to FCA §1039-b, finding that reasonable efforts to return the child to Ms. G. are no longer required. [*2]In support their motion, the Department submitted Affidavits of Allison W. Mussen, Esq., an attorney for the Department, and Kendra Gertsch, a caseworker with the Department. The Attorney for the Child submitted her own Affirmation in support of the motion. In opposition to the motion, Patricia G. submitted the Affirmation of her attorney, Edward D. Meyer, Esq. Neither the subject child's father nor the subject child's foster parents filed any responsive papers.
Family Court Act §1039-b(b) provides that reasonable efforts, to make it possible for the child to return safely to his or her home, shall not be required where the court determines, in relevant part, that:
(2) the parent of such child has been convicted of ... (ii) ... manslaughter in the second degree as defined in section 125.15 of the penal law and the victim was another child of the parent, provided, however, that the parent must have acted voluntarily in committing such crime; ...Unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future.The Department's and the Attorney for the Child's position can be summarized as follows. On November 13, 2017, Ms. G. was convicted of Manslaughter in the Second Degree pursuant to Penal Law §125.15(1) and the victim of that crime was another child of Ms. G.. Further, that continued reasonable efforts towards reunification would not be in the best interest of the child, and would not likely result in reunification in the foreseeable future. In opposition, Ms. G. does not directly dispute any of those assertions, but Ms. G. argues that FCA §1039-b(b)(2) requires that "the parent must have acted voluntarily in committing such crime"; and, that the Department's supporting papers do not satisfy this element. Neither the Department nor the Attorney for the Child submitted any reply papers addressing this argument.
Certainly, the Respondent is correct that the Petitioner must demonstrate that when the Respondent committed manslaughter in the second degree that the Respondent "acted voluntarily." In their motion papers, when Petitioner's attorney cites the applicable section of law, she omits this requirement. Furthermore, in the Department's motion papers, is it not even alleged that this statutory requirement is satisfied. The motion papers also do not particularize any facts that would demonstrate that this statutory requirement is met. Accordingly, Petitioner's motion must be denied.
Given the inadequate allegations contained in the supporting documentation, the Court need not resolve the issue of what Petitioner must demonstrate to support an allegation that the parent must have "acted voluntarily" when committing manslaughter in the second degree as that term is used in FCA §1039-b(b)(2). Nevertheless, the filing of this motion has given the Court the opportunity to consider the meaning of that statutory requirement and the answer is far from clear.
If the Court were to interpret this requirement using the common definition of voluntary, that is to act intentionally and without coercion (See, Black's Law Dictionary, [8th ed 2004]), it would render this statutory requirement meaningless. This Court cannot imagine how one could commit the crime of manslaughter in the second degree without one's acts being intentional and without coercion, even though one need not intend to cause death. Such an interpretation would violate the statutory construction rules that require, where possible, the Court to give meaning to [*3]each phrase in the statute. See, McKinney's Statutes §231. See also, Avella v City of New York, 29 NY3d 425, 434 [2017] ("'[I]t is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided' (Rocovich v Consolidated Edison Co, 78 NY2d 509, 515 [1991])"); Artibee v Home Place Corp., 28 NY3d 739 [2017]; and, Troy Sand & Gravel Co. v Town of Nassau, 80 AD3d 199 [3 Dept 2010].
Since the New York State statute was adopted to conform with the federal law and the federal law requires the commission of voluntary manslaughter, as that term is defined by 18 USCA §1112(a), the Court has considered the possibility that the term "acted voluntarily" as used in FCA §1039-b was intended to require that the parent's actions, which supported the manslaughter in the second degree conviction, constitute voluntary manslaughter as opposed to involuntary manslaughter under the federal law.[FN2] Although this alternative is at least a hypothetical possibility, the Court can find no legislative history that supports such an interpretation.
Because the Court could not identify any case law addressing this specific issue and has been unable to locate any legislative history that sheds light on this issue, further legislative [*4]guidance as to the intended meaning of this requirement would be especially welcome given the importance of this type of motion to a child's life.
ACCORDINGLY, IT IS HEREBY
ORDERED, that the Clinton County Department of Social Services' motion is hereby DENIED; 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 Attorneys for the Children upon the appellant, whichever is earliest.
Dated: March 23, 2018
Plattsburgh, New York
Hon. Timothy J. Lawliss
Family Court Judge Footnotes
Footnote 1: Placement continued as a result of the Court's Combined Dispositional and Permanency Hearing Order issued in February of 2017, Second Permanency Hearing Order issued in August of 2017 and Third Permanency Hearing Order issued in February of 2018.
Footnote 2: "In February of 1999 ... New York passed the Adoption and State Families Act (ASFA) (L. 1999, ch 7). The Legislature thereby brought New York into conformity with the 1997 Federal Law of the same name, maintaining the State's eligibility for Federal Funding for Foster Care Services." Matter of Marino Sr., 100 NY2d 361 [2003]. 42 U.S.C.A. §671, provides that in order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which provides in relevant part to the instant motion, that: (A) in determining reasonable efforts to be made with respect to the child, as described in this paragraph, and in making such reasonable efforts, the child's health and safety shall be the paramount concern; (B) except as provided in subparagraph (D), reasonable efforts shall be made to preserve and reunify families ... (D) reasonable efforts of the type described in subparagraph (B) shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that ... (ii) the parent has (II) committed voluntary manslaughter (which would have been an offense under section 1112(a) of Title 18, if the offense had occurred in the special maritime or territorial jurisdiction of the United States) of another child of the parent {emphasis provided}: Pursuant to 18 U.S.C.A. §1112: (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: Voluntary — Upon a sudden quarrel or heat of passion. Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
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