Cases decided on: July 16, 2019
By Friedman, J.P., Gische, Webber, Kahn, Oing, JJ.In re Emmanuel B., Nonparty Appellant, A Child Under Eighteen Years of Age, etc., Administration for Children’s Services, Petitioner-Respondent, Lynette J., Respondent. Andrell B., Nonparty Respondent, Lawyers for Children, Inc., and the National Association of Counsel for Children, Amici Curiae.Emmanuel B. appeals from the order of the Family Court, Bronx County (Alma M. Gomez, J.), entered on or about March 5, 2018, which remanded his care and custody to the Administration for Children’s Services. Dawne Mitchell, The Legal Aid Society, New York (Claire V. Merkine of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (MacKenzie Fillow and Claude S. Platton of counsel), for Administration for Children Services, respondent. YU School of Law Family Defense Clinic, Washington Square Legal Services, New York (Christine Gottlieb and Amy Mulzer of counsel), for Andrell B., respondent. Mayer Brown LLP, New York (Allison Stillman of counsel), and University of South Carolina School of Law, Columbia, SC (Josh Gupta-Kagan of counsel), for amici curiae.WEBBER, J.In this appeal, we are asked to determine a matter of first impression for this Court, that is, whether the Interstate Compact for the Placement of Children (ICPC), codified in Social Services Law §374-a, applies to out-of-state noncustodial parents. For the reasons stated below, we find that the ICPC does not apply to those parents.On October 2, 2017, the Administration for Children’s Services (ACS) filed a petition alleging that Lynette J. (mother) had neglected two-year-old Emmanuel (child), born November 29, 2015, by failing to properly feed, bathe, and care for him, causing the child to become underweight and malnourished. The petition further alleged that the mother slapped and bit the child, and left him unsupervised for long periods of time. The child, who had been residing with the mother at a New York City Department of Social Services facility, was subsequently removed from the mother’s care and placed in the custody of ACS. ACS directly placed the child in the home of his paternal aunt. On or about January 10, 2018, nonparty Andrell B. (father), who resided in New Jersey, filed a petition for custody of the child. The Family Court denied custody, due to the father’s residence in New Jersey, but ordered that the father have liberal visitation with the child.On January 26, 2018, the father filed an order to show cause, seeking an order to have the child immediately released into his care. According to the father, he had resided with the mother and the child for the first six months of the child’s life, and had visited the child every weekend after he and the mother separated.On February 7, 2018, the parties appeared in Family Court. ACS conceded that it did not have any concern about the child residing with the father in that it had no reason to believe that the father was unfit or abusive or that he posed any imminent harm to the child. However, ACS stated that it believed that as the father resided in New Jersey, compliance with the ICPC was mandatory and any placement was predicated on ICPC approval.1 The Family Court denied the father’s application and issued an order remanding the care and custody of the child to the Commissioner of Social Services. The court found that the ICPC process had to be completed and the placement approved. In its written decision, dated February 26, 2018, the court concluded that the ICPC process had to be completed and the placement approved prior to granting the father custody as the child was in the legal custody of the Commissioner of Social Services, and subject to the continuing jurisdiction of Family Court. According to the court, the father “as a non-custodial, non-resident parent, does not have custody or possession of the child as a matter of parental right” and “requires parental authority to be conferred on him by the state.”
