DECISION This matter comes before the Court upon the ex parte application of the Suffolk County Department of Social Services under Family Court Act section 1034 (2) for an order to obtain access to the child. The Court has reviewed the verified petition and conducted a hearing on February 14, 2019 at which Senior Caseworker Danielle Marrazzo of the Suffolk County Department of Social Services Child Protective Services division and another witness testified. The Court credits the testimony of the witnesses. The Court also reviewed the state central registry checks regarding child abuse/neglect, and domestic violence. This decision relies, in part, on the results of those results which show that the instant proceeding is the only entry.A. FactsA report was made under Title Six of Article Six of the Social Services Law. The credible evidence before this Court is that such report was made by an identified mandated reporter. The report was made on January 16, 2019 while the Respondent, who is the biological mother of the three children, was living in Suffolk County.CPS, and Senior Caseworker Marrazzo in particular, tried to connect with the Respondent at the Suffolk County residence address where the Respondent was reported to have then been residing with the subject children. The efforts to meet with the Respondent at that address and the efforts to gain access to the children and the home at that address were unsuccessful; the Caseworker found an “eviction notice” there.The Caseworker investigated further by contacting certain social workers who reported efforts those social workers had undertaken in 2018 to contact the Respondent. Based on this information, the Caseworker went to an address in Kings Park, NY where she engaged with a person representing himself to be the biological father of one of the children. That father denied access to the children. Subsequent visits to the same address yielded the same results–no contact with Respondent and no contact with any of the children. These subsequent visits also yielded the father denying access to the children, and on the final visit to that address, that father indicated that Respondent moved out with the kids.The Caseworker also sought to contact the Respondent and the children through the Respondent’s father (i.e., the maternal grandfather of the children) at an address in Selden. The paternal grandfather indicated that much of Respondent’s property was in his house. Through this contact, the Caseworker was able to leave a business card for Respondent asking that the Respondent contact the Caseworker.The Caseworker left a voice mail for Respondent on January 17, 2019. That same day, the Caseworker received a return telephone call from Respondent during which call the Respondent confirmed that Respondent had been evicted and that Respondent’s housing was unstable. Although the Caseworker offered services and offered to meet the Respondent “anywhere,” so Respondent did not have to travel to the Caseworker’s office, Respondent resisted. The Respondent said, “I am not going to do your job for you.”Further contact efforts through the children’s maternal uncle and/or the uncle’s girlfriend and through the maternal grandmother proved fruitless except that an address in Freeport was provided as the maternal grandmother’s home. At that Freeport address, the Caseworker saw a double stroller which aligned with the ages the Caseworker knew two of the subject children to be; and the Caseworker learned from what appeared to be a neighbor that Respondent was living in the upstairs of this apparent multifamily dwelling in Freeport.At the request of the Caseworker, the Nassau County Department of Social Services, Child Protective Services, took a secondary role and went to the Freeport address where on February 7, 2019, a person identifying himself as a maternal uncle denied access to the home and children.Further efforts to make contract through the maternal grandmother of the subject children were fruitless.The Caseworker left a voice mail at the cellular telephone number for the Respondent (at which the Respondent had been previously reached and from which the Respondent had previously telephoned the Caseworker) notifying the Respondent that if access to the home and children was not given, CPS would seek an order through Family Court to gain access to the children and the home. No information suggests that the Respondent or any of the subject children no longer reside or are no longer able to be found at the Freeport address.The nature of the report to the state central registry is that Respondent is medically neglectful towards at least one of the children. Specifically, one or more of the children may suffer from a serious medical condition that requires four tests to diagnose, the first two of which (at birth and at two weeks) were conducted. The medical team attending to the subject children have no report that Respondent obtained the third and fourth tests which were to be conducted when the youngest child was six weeks old and four months old. In fact, the Caseworker was present at the hospital on January 30, 2019 when the Respondent had promised to bring the youngest child for testing–the Respondent spoke by telephone with the social worker while the Caseworker was there which supports finding that Respondent is refusing medically necessary testing for Respondent’s child. This presents grave harm to the child or children if a full investigation is not completed.The children’s ages are five years old, three years old and ten months old. Each of these children is of insufficient age to care for himself or herself, and, thus, are reliant on the adults in their lives for food, clothing, shelter, care and guidance. As such, they are vulnerable.The potential harm to the child or children if a full investigation is not completed is, as noted above, grave and life-altering.The report to the state central registry comes from a disinterested party acting in compliance with a statutory duty to report. This is not a case where the report comes from someone with bias or prejudice or a hidden (or obvious) agenda. The Caseworker did testify that similar issues arose with one of the other subject children but that the medical team, including social workers and public health nurses, were able to secure cooperation and testing albeit after having to overcome resistence of Respondent.There are also allegations of educational neglect in that the eldest child is not attending school anywhere.B. Analysis of Preliminary Legal IssuesFamily Court Act §1034 (2) allows the court to grant orders designed to secure access to the home and/or the subject children. This application raises three preliminary issues before the Court reaches the ultimate substantive question of whether to grant an order–and if so, what the terms of the order should be, given that the order must be “the least intrusive to the family” (Family Court Act §1034 [2] [e]).The three preliminary issues are:1. Whether an order under Family Court Act §1034 (1) is a condition precedent to an access order under Family Court Act §1034 (2);2. Whether venue is proper in Suffolk County;3. Whether voicemail notice is sufficient notice under the statute to permit this application to be made?Conditions PrecedentThe Court need not decide this issue.The Child Protective Agency has standing to bring the instant application (Family Court Act §1034 [2]). With the matter properly before the Court through that process, and the Court having found the facts set forth above, the Court finds that good cause exists to order a 1034 report. Thus, whether or not a condition precedent exists, it would be satisfied by the order of even date herewith that directs such a report to be prepared.VenueThe proper venue for a Family Court Act §1034 (2) application requires a degree of statutory interpretation. The general venue provisions are set forth in article 5 of the CPLR which Family Court Act §165 incorporates. If the §1034 (2) application is an action, then CPLR 503 controls, and with exceptions discussed below, permits venue in the county where any party resides; If the application is a special proceeding, then CPLR 506 is the general venue provision which permits venue “in any county within the judicial district where the proceeding is triable.” Because the Tenth Judicial District includes both Nassau and Suffolk County, even if the proceeding is triable only in Nassau County, CPLR 506 allows expansion to Suffolk County. Like CPLR 503, CPLR 506 has an exception for specific venue provisions that may appear elsewhere in the law.Thus, unless a specific venue provision appears elsewhere in the law, Suffolk County is a proper venue for this Family Court Act §1034 (2) application.The only possible specific venue provision is Family Court Act §1015 which provides that “Proceedings under this article [Family Court Act article 10] may be originated in the county in which the child resides or is domiciled at the time of the filing of the petition or in the county in which the person having custody of the child resides or is domiciled.”The Family Court Act §1015 specific venue provision does not apply, so, as a matter of clear statutory interpretation, venue is proper in Suffolk County under CPLR 503 or 506.“When interpreting a statute ‘our primary consideration is to discern and give effect to the Legislature’s intention’” Matter of Avella v. City of New York, 29 NY3d 425, 434, 58 NYS3d 236, 241 [2017] quoting Matter of Albany Law School v. NYS Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, 945 NYS2d 613 [2012]). Here, the Legislature has specifically told us of its intention:This article is designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court may intervene against the wishes of a parent on behalf of a child so that [the child's] needs are properly met.(Family Court Act §1011). In addition, the §1034 (2) application arises in connection with a report of suspected child abuse or maltreatment under title six, article six of the social services law. In fact, a necessary condition for a court to act on a §1034 (2) application is that such a report has been made (Family Court Act §§1034 [2] [a] [i] [A], 1034 [2] [b] [i] [A]). The purpose of that title of the social services law is:Abused and maltreated children in this state are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment. It is the purpose of this title to encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and competently and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children and parents involved.(Social Services Law §411).Thus, the intention to which this Court must give effect is to protect children within the appropriate boundaries of due process and parental rights.Within the scope of giving effect to the Legislature’s intention, courts must look to the plain language of the statute. In Matter of Avella (supra), the introductory words to the analysis in the Court of Appeals opinion are “Beginning with the plain language” (Matter of Avella, 29 NY3d at 434, 58 NYS3d at 241 [2017]). Finally, the overall statutory scheme must be harmonized (Matter of Lemma v. Nassau County Police Officer Indem. Bd., 31 NY3d 523, 80 NYS3d 669 [2018]).Here, the plain language of Family Court Act §1015 calls for “proceedings” to be venued in a specific county or counties. While “proceedings” stands undefined in the definition sections of the Family Court Act (Family Court Act §§119, 1012), the term is used elsewhere in article 10. Family Court Act §1031 (a) provides “A proceeding under this article is originated by the filing of a petition in which facts sufficient to establish that a child is an abused or neglect child under this article are alleged.” Therefore, based on the plain language of the whole statute, the venue provisions of §1015 apply only to §1031 petitions, not to applications for §1034 (2) relief.This interpretation stands further supported by the plain language of Family Court Act §1034 (2) whose domain is pre-petition matters–both subsection (2) (a) and (2) (b) being with the words, “Before a petition is filed” (see generally, F.H. Easterbrook, Statutes’ Domain, 50 U. of Chi. L. Rev. 533). The cross-over provisions of CPL article 690 (Family Court Act §1034 [2] [c]) cannot apply because the search warrant process described therein arises only after geographical jurisdiction has been established–here, at this pre-petition (Family Court Act §1034 [2]) and investigatory (Social Services Law §424) stage, venue cannot yet be determined because no petition has been filed (Family Court Act §1015).Reliance only on the general venue provisions of the CPLR effectuates the Legislature’s intent. No one can think that the Legislature thought that a Family Court Act §1034 (2) application should be subject to the vagaries of a transient potential respondent whose residential shifting would erect venue-based barriers to completion of a statutorily required investigation (Social Services Law §424; Matter of Smith Children, 26 Misc 3d 826, 891 NYS2d 628 [Kings County Family Court 2009]). Such a construction would be absurd and must be rejected, especially when the chosen county of venue has a direct and substantial and, in fact, according to the testimony at the hearing, primary role in the investigation (McKinney’s Cons Laws of NY, Book 1, Statutes §145. Matter of DeTroia v. Schweitzer, 87 NY2d 338, 639 NYS2d 299 [1995]). Put differently, a motion to change venue under CPLR 510 (3) would have been easily rejected.Thus, by any test, venue is proper in Suffolk County.Voicemail NoticeThe provisions of Family Court Act §1034 (2) require that “the investigator has advised the parent or other persons legally responsible for the child or children that, when denied sufficient access to the child or other children in the household, the child protective investigator may consider seeking an immediate court order to gain access” (Family Court Act §§1034 [2] [a] [i] [C], 1034 [2] [b] [i] [C]). The procedural requirements for a §1034 (2) application are equivalent to those required for a search warrant under criminal procedure law article 690 where no prior notice is required (Family Court Act §1034 [2] [c]. cf. US Const 4th, 14th Amends). Thus, the issue of notice is one only of statutory dimension as opposed to the substantive analysis of the application for what is, in effect, a right to enter a dwelling to investigate a potential civil action which must comport with the Fourth Amendment (Camara v. Municipal Court of San Francisco, 387 US 523 [1967]).Using the same statutory interpretation precedents set forth above, it is clear that voicemail notice or advisement meets the statutory criterion. The statute requires only that the person be ‘advised” and does not require a writing; this Court will not write into a statute what the Legislature has chosen to omit (American Transit Ins. Co. v. Sartor, 3 NY3d 71, 781 NYS2d 630 [2004]). Similarly, the Court will not write into the statute a definitive receipt component that the Legislature chose to omit–the statute could have said, “the parent or person legally responsible for the child must have received from the investigator ….” The statute does not say that. Moreover, this interpretation prevents the absurd result of allowing an evading parent to evade the statutory remedy for evasion by evading CPS even more.On the facts of the case, the Caseworker had called a specific telephone number believed to be the Respondent’s, had received a call back from that number and was present when the Respondent called a worker at the hospital; the same telephone number was used by hospital staff to text the Respondent. These facts permitted to Caseworker to conclude that a voicemail left at that telephone number would “advise” the Respondent of the possibility of an immediate application for a court order to gain access. This Court finds that the “advised” requirement was, therefore, met.C. Analysis of the ApplicationThe Court must consider five factors to determine whether a §1034 (2) order should be made (Family Court Act §1034 [2] [d] [i]-[v]) to allow entry into the home and must find probable cause to believe that an abused or neglect child may be found on the premises (Family Court Act §1034 [2] [b] [i], [ii]).The facts set forth above establish, among other things, that the nature and seriousness of the allegations made in the report (Family Court Act §1034 [2] [d] [i]) to the state central registry involve the failure of the Respondent to have medically necessary testing of one of the children conducted; in fact, the Respondent similarly delayed testing of a different child, but that child’s urgent needs were met without court involvement. Here, the Respondent broke an appointment to have the testing done and rejected an offer of services to assist Respondent and her children.As noted above, the children are all vulnerable (Family Court Act §1034 [2] [d] [ii]).The potential harm to the child if a full investigation is not completed is that the child may suffer from a chronic and life-threatening illness and may unknowingly be a source of contagion (Family Court Act §1034 [2] [d] [iii]).The source of the report has no bias or prejudice; the source is not the biological father or any other relative of the children whom the caseworker encountered during her search and investigation for the Respondent and the children. Thus, the possibility of bias in the report to gain procedural or substantive advantage in custody litigation is absent (Family Court Act §1034 [2] [d] [iv]).Although the central registry reports show no prior CPS involvement, the testimony at the hearing showed that Respondent has previously engaged in similar child-jeopardizing behavior (Family Court Act §1034 [2] [d] [v]).This Court does NOT decide whether any one or all of the children is abused or neglected. This Court does, however, find that probable cause does exist to issue an order to enter the home in order to determine whether such child or children are present and/or to conduct a home visit and evaluate the home environment of the child or children (Family Court Act §1034 [2] [b] [ii]). In part, this probable cause determination is based on: (a) the Respondent’s demonstrated refusal to engage in the remainder of medically necessary testing for one of the children, a testing process to which Respondent has voiced no objection in respect of at least one other child and in respect of two of the four tests with the youngest child; (b) the Respondent’s apparent failure to have the school-aged child attend school; (c) the housing crisis Respondent faces which, in combination with the other stressors, indicates that Respondent is not able to meet all the essential needs of the children.Therefore, this Court will issue an order granting access and entry to the home. However, the Court limits the hours of access to 9:00 a.m. to 5:00 p.m.(Family Court Act §1034 [2] [e]).Dated: February 14, 2019Central Islip, New York
