DECISION On April 30, 2021, Respondent Jane A. gave birth to a boy named John. On that same date while the child was still in the hospital, with the consent of Ms. A., the Clinton County Department of Social Services (“CCDSS”) removed John from Ms. A.’s care without a court order. On May 3, 2021, the CCDSS filed a neglect petition pursuant to Article 10 of the Family Court Act against Ms. A. concerning John. At the time of the filing, John did not have a legally established father. On May 4, 2021, the Court issued an Order on Application for Temporary Removal of Child (After Petition Filed) which, among other things, temporarily removed the child from the child’s home and placed the child with the CCDSS. On June 8, 2021, upon Ms. A.’s admissions and consent, the Court issued an order finding that John was a neglected child, as that term is defined by Family Court Act §1012(f)(i)(B). On that same date, upon the consent of all parties, including Ms. A., the Court issued an Order of Disposition which continued John’s placement with the CCDSS until the completion of a permanency hearing scheduled for October 26, 2021. A week before the scheduled permanency hearing, this Court [Asadourian, Support Magistrate] issued an Order of Filiation establishing Robert B. as John’s father. The scheduled October 26, 2021 permanency hearing was then adjourned to give Mr. B. proper notice of the hearing and to allow Mr. B. time to arrange for counsel. To date, Mr. B. has not filed a petition pursuant to Article 6 of the Family Court Act seeking permanent custody of the subject child. At the conclusion of the permanency hearing, the Department of Social Services, Ms. A. and the Attorney for the Child advocated for continued placement of the child with the Commissioner. Mr. B. requested that the child be released to his care. The threshold question presented to the Court is what legal standard applies to a non-respondent parent’s request for release under Article 10-A of the Family Court Act. “In 2015 the Legislature enacted sweeping new provisions granting non-respondent parents a new set of rights, striking a new balance between respondent and non-respondent parents.” Merril Sobie, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Court Act §1054, 2021 Pocket Part at 40-41. These amendments to Family Court Act Article 10 have been characterized as a non-respondent’s “bill of rights.” See Merril Sobie, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Court Act §1052, 2021 Pocket Part at 25. Among other things, Family Court Act §§1035(d), 1052(a)(ii), and 1054 were amended to authorize the dispositional alternative of a release of the subject child to a non-respondent parent. The Court notes that Family Court Act Article 10-A was not similarly amended as referenced above. The word “release” or the phrase “release to a non-respondent parent” does not appear anywhere in Family Court Act §1089, the primary section governing permanency hearings. However, because permanency hearings have been held to constitute “phases” of the dispositional proceedings, the dispositional option of a release to a non-respondent parent must be a valid disposition at a permanency hearing. See In re Demetria FF., 140 AD3d 1388, 1390 [3d Dept 2016], quoting Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Court Act §1086 at 199-200, (“there is no final disposition until permanency has been ordered” [emphasis in original]); see also Merril Sobie, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Court Act §1089, 2021 Pocket Part at 149, (“[i]n recent years non-respondent parents have been granted greatly expanded rights…[t]he newly endowed rights may come into play in Section 1089 permanency hearings”). In Matter of Elizabetta C., 60 Misc 3d 603 [Fam Ct, Clinton County, June 19, 2018], this Court was faced with the same question of what standard to apply when a non-respondent parent seeks release of a child as a dispositional option. This Court, in grappling with how to treat the non-respondent parent, stated: [I]t is a fundamental principle of New York law that a parent has a claim of custody to his child superior to that of all others unless it is established that he is unfit to assume his parental duties or some other type of extraordinary circumstances exist. (Matter of Jamie J. [Michelle E.C.], 30 NY3d 275 [2017]; Matter of Bennett v. Jeffreys, 40 NY2d 543 [1976]; Matter of Perry v. Perry, 160 AD3d 1144 [3d Dept 2018]; Matter of Nevaeh MM. [Sheri MM. --- Charles MM.], 158 AD3d 1001 [3d Dept 2018]; Matter of Connie VV. v. Cheryl XX., 156 AD3d 1147 [3d Dept 2017].) This overriding principle of law has been controlling in a number of contexts. (See Matter of Jamie J., 30 NY3d at 279 [Family Court Act article 10-A permanency hearing]; Matter of Suarez v. Williams, 26 NY3d 440 [2015] [non-parent custody action]; Matter of Michael B., 80 NY2d 299 [1992] [custody of a child voluntary placed, but not freed]; Matter of Connie VV. v. Cheryl XX., 156 AD3d at 1148 [3d Dept 2017] [non-parent custody action]; Matter of Devon EE. [Evelyn EE.], 125 AD3d 1136 [3d Dept 2015] [combined Family Court Act article 6 and Family Court Act article 10 dispositional hearing]; Matter of James NN. v. Cortland County Dept. of Social Servs., 90 AD3d 1096 [3d Dept 2011] [Family Court Act article 10 non-respondent parent custody action for child in foster care]; Matter of Kevin C., 288 AD2d 311 [2d Dept 2001] [Family Court Act article 10 disposition].) Parents who are fit to raise their child are constitutionally entitled to do so. (Matter of Jamie J., 30 NY3d at 280; Matter of Bennett v. Jeffreys, 40 NY2d at 545-546; Matter of Nevaeh MM., 158 AD3d at 1002-1003; Matter of McBride v. Springsteen-El, 106 AD3d 1402 [3d Dept 2013]; Matter of Marx v. Tucker, 36 AD3d 1125 [3d Dept 2007]; Matter of Dayshaun W. [Jasmine G.], 133 AD3d 1347 [4th Dept 2015].) Matter of Elizabetta C., 60 Misc 3d at 606. Based upon the foregoing, this Court held as follows: Given a fit parent’s constitutional right to raise their children, the court holds, that once a parent intervenes in an article 10 action, the court may not place the child without the intervening parent’s consent, unless the party advocating placement demonstrates that the intervening parent is unfit to provide proper care for the child or that some other type of extraordinary circumstances exist. Id. at 606-607. There has been precious little guidance from appellate courts regarding release to a nonrespondent parent.1 In fact, there was no appellate guidance until June 9, 2021, when the Second Department decided Matter of Sabrina M.A. (Yana A.-Marcus S.), 195 AD3d 709, [2d Dept 2021]. In that case, the non-respondent father appealed from a permanency hearing order which continued the subject child’s placement, arguing that “there was no showing that he is unfit or other extraordinary circumstances and the court should have immediately released the child to his case.” Id. at 709. The Second Department explicitly rejected this argument, stating that “[c]ontrary to the father’s contention, the Family Court was not required to find the existence of extraordinary circumstances necessary to permanently deprive a parent of custody.” Id., citing Matter of Eric W. (Tyisha W.), 110 AD3d 1000, 1001 [2013]. Instead, pursuant to Family Court Act §1089(d), the Court held that the “best interests” of the child standard is applicable to the father’s request for a release of the subject child and that the non-respondent’s fitness would be a “primary factor” among others. Id. This Court has searched Third Department for cases on point, but has found none. In accordance with the doctrine of stare decisis, a Family Courts is “bound to apply the law as promulgated by the Appellate division in its own Department, [and] where the issue has not been addressed within that Department, the [Family Court] is obligated to follow the precedent set by the Appellate Division of another Department until its home Department or the Court of Appeals pronounces a contrary rule.” Maple Med., LLP v. Scott, 191 AD3d 81, 90 [2d Dept 2020]. Thus, because the Third Department has not addressed the issue, this Court is bound to apply the law as espoused by the Second Department in Matter of Sabrina M.A., and thus shall apply a simple “best interests” standard to the facts of the present case. Before doing so, the Court respectfully asserts that the Matter of Sabrina M.A. should be reconsidered. First, it should be emphasized that the Court is not selecting between two parents, but rather the Court is selecting between the State and a parent. As outlined in Matter of Elizabetta C., a number of courts have held in a number of circumstances that a parent has a claim of custody to his or her child superior to that of all others unless it is established that he or she is unfit or some other type of extraordinary circumstances exist. Second, the Matter of Eric W. was the only authority the Second Department cited in support of its holding in the Matter of Sabrina M.A. The Matter of Eric W. was decided two years before the 2015 Amendments to Article 10 of the Family Court Act were enacted which granted non-respondent parents a new set of rights. Third, the Second Department in both the Matter of Sabrina M.A. and the Matter of Eric W. failed to directly address the non-respondent parent’s constitutional rights when the State seeks to intervene in the parent-child relationship. Certainly, the statute should be construed, if possible, to avoid infringements upon a non-respondent parent’s constitutional rights. This distinction is far from academic. This case turns on which standard applies. The Court shall issue a Permanency Hearing Order consistent with this Decision. Dated: Dated: December 2, 2021
