In this protracted highly contested child protective and custody proceeding,now in the midst of its sixth pre-fact-finding hearing,the Administration for Children's Services (hereinafter "ACS"), is seeking an order directing the removal of the child Nadra from the home of the non-respondent paternal grandmother who resides in the State of Virginia. The motion is supported by the Law Guardian and opposed by respondent mother and respondent father. For the reasons set forth herein, the motion is denied without prejudice to renew in the event that the Virginia court declines to exercise jurisdiction or terminates the action currently pending in that state. A New York court may [*2]not exercise its jurisdiction if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction and Enforcement Act, unless the proceeding has been terminated or is stayed by the court of the other state because a New York court is a more convenient forum.

PROCEDURAL HISTORY

Kizwana M (hereinafter "respondent mother") and Rahiem D (hereinafter "respondent father"), are the parents of three children, Najad D, born April 25, 2006 Najaf D, born October 1, 2004 and Nadra M, born November 14, 2007. Respondent mother is also the mother of Amaru M, born March 26, 1997. Amaru's father is listed as "unknown."

On September 20, 2006, ACS filed neglect petitions pursuant to Family Court Act §§ 1012(e)(i) & (ii) against both respondents alleging that the child Amaru was a neglected child as a result of respondent mother and respondent father inflicting excessive corporal punishment against him, causing numerous marks and bruises on the child's body. The petitions allege that the child was beaten by respondent mother with an extension cord and punched by both respondents. In addition, the petitions allege that Mr. D is a "person legally responsible" for Amaru as a result of the fact that he is married to the child's mother and lived with her and the children (both of which he denies). Finally, the petitions allege that Najaf and Najad are derivatively neglected children.

On the day the petitions were filed, a hearing was conducted before Hon. Anne Feldman pursuant to FCA §1027. At the conclusion of the hearing, Justice Feldman granted the application for the remand, directing that Amaru be placed with the maternal great-grandfather and that the two younger children be placed together with kinship resources. During the months that followed the initial removal, the two younger children were moved several times and are currently in their second non-kinship foster home.

On September 27, 2006, Doreen D, the paternal grandmother of the children Najad and Najaf, filed petitions seeking custody (V-31182-3/06). Ms. D also attempted to file a custody petition for Amaru but was advised that she would not be permitted to do so since she is not his biological grandmother. At that point, Nadra had not been born.

Ms. D resides in Newport News, Virginia. Justice Feldman ordered ACS to submit and expedite an application pursuant to the Interstate Compact on the Placement for Children (hereinafter "the ICPC," see Regulation No. 7). Because the paternal grandmother was seeking custody and presumably because ACS had indicated at the outset that they would not certify the paternal grandmother's home as a foster home, Justice Feldman ordered that the home be explored for purposes of custody—not foster care. Nevertheless, for reasons that remain unclear from the record, ACS apparently directed that the home be explored for purposes of foster care only.

On October 10, 2006, the court issued temporary orders of protection against both parents on behalf of the children, directing that they not commit any family offenses against them. The original order directed that the respondent father stay away from the child Amaru and refrain from having any contact with him. Those orders, with numerous modifications, have been continued to date.

On October 5, 2006, October 10, 2006 and October 19, 2006, Justice Feldman conducted a hearing pursuant to Family Court Act §1028. At the conclusion of that hearing, Justice Feldman denied the parents' application for the return of the children and continued the remand. The court granted the mother visitation with all three children and the father was granted visitation with the [*3]two younger children. In addition, the court granted the father visitation with Amaru, if Amaru agreed. The paternal grandmother was also permitted to visit during the times scheduled for the parents' visitation.

On October 25, 2006, ACS moved by order to show cause for leave to amend the neglect petitions. That motion was opposed by the respondent parents and the Law Guardian and was denied by the court on November 16, 2006. Thereafter, ACS filed supplemental petitions (NN-35545-7/06), containing additional allegations of neglect specifically, that respondent mother had left Amaru in the care of inappropriate caretakers; that respondent father smoked marijuana in front of the children; that in the summer of 2006, while the family was staying in Virginia at the home of the paternal grandmother, respondent father struck Amaru with a belt buckle; and that during the same period, Amaru was forced to sleep outside of the house on the porch on a sheet.

On November 27, 2006, the foster parents failed to bring the children for a scheduled visit at the foster care agency, Mercy First (hereinafter "the Agency"). The mother became angry, yelling and demanding that the children immediately be produced for the visit.

The following day, the foster mother brought the two younger children for the visit with both parents. After the visit was over, the mother and the foster mother got into an argument. The mother was upset about what she perceived to be the inadequate level of care the foster mother was providing for the children. The mother screamed at and threatened to hurt the foster mother. Agency staff intervened and prevented an altercation. By that time, respondent father was outside of the building and was not involved in the argument. He later returned at the request of the mother. According to the agency case record, the respondent father kicked and broke the main door to the building and respondent mother knocked over a planter in front of the building. A police report was made as the result of the incident.

On November 29, 2006, ACS appeared before Justice Feldman and made an ex parte oral application to suspend the parents' visitation. The court granted the application "pending (an) investigation of (the) allegations (of the) respondent parents' harassing and threatening the foster parents."

Later that day, when the parents went to the agency, they were informed that their visits had been temporarily suspended. They indicated that they wished to discuss the matter with the president of Mercy First. He was unavailable and the parents were told to return the following day.

The following day, the parents returned to the agency and met with the senior vice president. During the course of the conversation, the parents became angry that their visits had been cancelled. Respondent father yelled and threatened to harm anyone who got in the way of him seeing his children. He told the vice president that he "would do anything" to get his children back. He reportedly stated that he planned "to snatch the kids" next time he saw them and that no one would ever be able to find them. After the discussion grew more heated, agency personnel placed a call to 911. Officers arrived after the parents departed. Thereafter, a police report was filed.

On December 14, 2006, Justice Feldman continued her order suspending the visits noting, "Before visitation (is) resumed birth parents (are to) have mental (health) evaluations Respondent mother threatened foster mother and respondent father destroyed property at agency—-foster mother gave 10-day notice." On December 19th and 20th, 2006, the court conducted a hearing on ACS's motion to continue the suspension of the parents' visitation and the parents' motion to resume visitation.

At the conclusion of the hearing, the court granted ACS's motion pursuant to FCA § 1030 [*4](c), continuing the suspension of visitation "pending mental health evaluations for both parents and discretion with Mercy First when/how to resume visitation for either or both parents." Nevertheless, in order to facilitate the resumption of visitation, the court directed Mercy First "to meet with respondent parents either separately or together, before January 1, 2007, to determine the conditions and time under which visitation can be resumed." For reasons that remain unclear from the record, the agency also suspended the paternal grandmother's visitation.

On January 10, 2007, the case was transferred and the matter reassigned to this Part. By that time, the mother had signed releases for her mental health evaluation, completed parenting skills and started attending therapy and anger management. Consequently, the mother's supervised agency visits were restored. The court directed that the agency provide respondent mother with a minimum of one visit each week for three hours on the condition that she attended visits without the father. The court also ordered that the agency reinstate the paternal grandmother's visitation.

The matter was then adjourned for a report from Myles Schneider, M.D., retained by ACS to conduct a mental health evaluation of the respondent father. That report was received and distributed on February 15, 2007.

In his report Dr. Schneider recommended that respondent father "be allowed supervised visitation in a secure setting." Nevertheless, ACS and Mercy First asserted that they still opposed the resumption of the father's visitation. They stated that they lacked the resources to make the visits safe. They asked for a hearing and the opportunity to call Dr. Schneider to testify and explain what he meant by his recommendation that the father be granted "supervised visitation in a secure setting." By order and decision, dated February 26, 2007, the Court granted the application of ACS and Mercy First to the extent of ordering a hearing.

Thereafter, on March 9, 2007, ACS filed a motion for summary judgment alleging that there are no genuine triable issues of fact, and requesting an order finding that the child, Amaru is a neglected child and that the children Najad and Najaf are derivatively neglected children. Respondent mother's counsel and the Law Guardian submitted affirmations in opposition to the motion. By decision and order dated June 16, 2007, that motion was denied.

On March 15, 2007, the Court conducted a hearing to determine whether respondent father's visitation should be reinstated. Dr. Schneider was called to testify. The hearing was not completed because the father angrily left the courtroom prior to the conclusion of his testimony, indicating that he did not wish to proceed. On March 22, 2007, the Court dismissed the father's petition seeking to restore his visitation based on his failure to appear for the continued hearing.

On April 24, 2007, the respondent father filed a Request for Judicial Action asking that his visitation be resumed. Thereafter, despite numerous conferences, ACS and Mercy First continued to oppose the resumption of the father's visitation. They insisted that they lacked the resources necessary to make the visits safe. They asserted that visitation could not be resumed until Dr. Schneider was permitted to complete his testimony and explain what he meant that the father should be granted "supervised visitation in a secure setting."

On the same date, approximately eight months after Justice Feldman had ordered a Regulation # 7 ICPC custody investigation, the paternal grandmother was orally informed that the ICPC had been completed and that her home had been approved for purposes of foster care. ACS and the Agency orally indicated that they would neither certify the paternal grandmother's home, [*5]nor agree to a parole of her grandchildren to her care.^[FN1] Accordingly, she requested a hearing pursuant to Family Court Act §1028-a. The Court determined that she satisfied the requirements of the statute and granted the request.^[FN2]

By Notice of Motion dated July 30, 2007, respondent father moved for an order restoring his visitation. The hearings on both matters were delayed for a number of reasons including additional motion practice, attorney scheduling conflicts and repeated requests for substitution of counsel.^[FN3] [*6]

On September 25, 2007, the date scheduled for the Family Court Act §1028-a hearing, the attorneys requested an adjournment indicating that they were engaged in settlement negotiations. On that date, the Court modified the paternal grandmother's visitation schedule, ordering that she be granted two agency supervised visits prior to the next adjourned date. In addition, the Court ordered that the Agency would have discretion to begin unsupervised visitation for the paternal grandmother without further order of the Court.

On October 3, 2007, the Court conducted a hearing to determine whether respondent father's visitation rights should be restored and if so, under what conditions. Dr. Schneider testified and repeated his recommendation that visitation should be resumed under carefully monitored conditions. After the conclusion of the hearing, over the objection of ACS and the Agency, with the support of the Law Guardian and Dr. Schneider, the Court ordered that the father's visitation with the children be resumed under closely monitored conditions, specifically outlined in the order.

On October 10, 2007, the attorneys and the parties appeared indicating that there had been no settlement and nor any agreement about unsupervised visitation. Accordingly, the Court indicated that it would commence the first day of the Family Court Act §1028-a hearing. ACS and the Agency objected. They contended that such a hearing would be futile asserting that despite the explicit provisions of Family Court Act §1028-a and §1017, the Court is without authority to direct that they certify a particular home as a foster home.^[FN4] In addition, they asserted that since the paternal grandmother's home had only been approved under the ICPC for foster care, the Court lacked the authority necessary to parole the children to her care.

Nevertheless, the Court ordered that the hearing proceed as scheduled. At the hearing, the paternal grandmother testified that she is 47 years old and the divorced mother of three grown children, two sons and one daughter. She has no history of child maltreatment.

She testified that she traveled to New York City and filed for custody of her grandchildren [*7]as soon as she learned that they had been removed from their parents' care. She testified that she has never missed a court appearance and that she has traveled to New York City on a weekly basis since September 2006, to have two to three hours supervised visitation with her grandchildren.

The paternal grandmother testified that she currently resides with her younger son (not respondent father herein) in a condominium with three bedrooms and two bathrooms. She is employed as a certified nursing assistant at Eastern State Hospital in Virginia, works the night shift and earns $26,789 annually. She testified that she has the ability to modify her work schedule to enable her to spend more time with the children.

The paternal grandmother testified about the plans she has made for Najad and Najaf to live with her. She described how she plans to use the extra bedroom in her home for the children. She also described her plans for child-care during the hours she is required to work. She testified that she lives approximately 20 miles away from the home of her own mother, the paternal great grandmother, and her adult daughter, the paternal aunt, and that they have both agreed to assist her with child care. She testified that she already has a pediatrician in place for the children and that he is the same doctor who cared for them when they spent periods of time with her in the past. She also described the school that the children will attend when they are of school age.

The paternal grandmother testified that her home is equipped with a complex security system. She said that she would gladly enforce any orders issued by this Court including orders of protection prohibiting the parents from coming to her home and directing that the parents' contact be limited to agency supervised visitation. She also testified that she would be willing to transport the children to New York City to comply with any orders concerning agency supervised visitation.

The paternal grandmother testified that she is seeking custody and that she does not need any financial assistance to care for her grandchildren. She indicated, however, that she is also willing to be certified as a foster parent and that she already completed the necessary training program. She explained that she had enrolled in and completed the program after she had been informed that the ICPC investigation was being conducted with an eye toward foster care certification.

The paternal grandmother vehemently denied the allegations that she had been aware of acts of maltreatment committed by the parents against Amaru in her home during the summer of 2006. She testified about what happened on the day Amaru started a fire in the bathroom in her home. She stated that she had already left for work when the fire was discovered. She testified that she returned home that evening at the end of her work shift. She denied that Amaru was ever deprived of food in her presence. She acknowledged that there had been numerous instances when Amaru and other family members had slept on the floor on mats, which is generally how she herself spends the night. She also acknowledged that she occasionally sleeps outside on the porch during the day, indicating that it is generally the coolest place in the house on hot summer days. Further, she testified that Amaru has occasionally joined her on these days, however, she denied that Amaru had ever spent a night on the porch, in the rain or otherwise.

After the paternal grandmother completed her direct testimony and ACS began their cross-examination, the matter was adjourned to November 8, 2007, for a continued hearing. Prior to adjourning the matter, however, the Court indicated that it would grant the paternal grandmother's previous request for unsupervised visitation to the extent of granting her fours hours of unsupervised visitation each week. The Court noted that the paternal grandmother had been visiting with her grandchildren at the Agency or the ACS office under carefully supervised and closely monitored conditions for more than one year. During that time, the Agency and ACS made numerous reports [*8]to the Court about the nature of the family interactions during the visits. Details about each participant's behavior were reported to the Court. Nevertheless, at no point throughout the entire period had there ever been a report that the paternal grandmother had acted in a manner that was anything other than loving, nurturing and caring toward her two infant grandchildren.

The paternal grandmother indicated that she planned to spend the time with her grandchildren at the home of her sister, which is where she stays when she comes to the City. Accordingly, the Court directed that ACS or the Agency conduct an SCR clearance on the maternal great aunt prior to beginning unsupervised visitation. Thereafter, by order and decision dated October 18, 2007, the Court granted the grandmother's application for unsupervised day visits.The Court based that determination on it's finding that it would be in the best interests of Najad and Najaf and not adverse to their lives or health to spend time with the paternal grandmother, without supervision, at the home of the paternal great aunt. Thereafter, by order dated November 9, 2007, the Court granted the grandmother's application for unsupervised weekend visitation.

On November 14, 2007, the child Nadra was born to the respondent parents in Virginia and has remained in Virginia in the care of her grandmother since that date. On November 21, 2007, the grandmotherfiled a petition in the Newport News Juvenile & Domestic Relations District Court seeking custody of Nadra (JJ091594-01-00).

On November 28, 2007, the Agency learned of the birth of the baby. On December 3, 2007, ACS filed petitions against the parents alleging that the child Nadra was a derivatively neglected after-born child. On that date, the Court denied the request by ACS for a removal of Nadra from the home of the grandmother and directed the grandmother to produce the child for the Law Guardian on December 7, 2007. In addition, the Court entered an order of protection against the parents directing that they stay away from the child. The Court also requested that the State of Virginia make a courtesy home visit to the grandmother's home.

On December 7, 2007, the grandmother failed to produce the child for the Law Guardian and the Court again directed her to do so on or before December 19, 2007. On December 19, 2007, the grandmother again failed to produce the child for the Law Guardian. ACS, the Agency and the Law Guardian moved to temporarily suspend the paternal grandmother's unsupervised visitation and reinstate her agency-supervised visits.

A brief hearing was conducted at which Charlene Deisch, the caseworker from the Virginia Department of Social Services who had conducted the ICPC investigation of the grandmother's home testified telephonically. Ms. Deisch testified that she had recently visited the grandmother's home and found the child to be healthy and well cared for. Nevertheless, she indicated that she had not been aware of the child protective proceeding pending against the respondent parents when she recommended that the grandmother's home be certified as a foster home. She also indicated she had not known that Amaru had asserted that the grandmother knew that his parents had deprived him of dinner and forced him to sleep on the porch during the summer of 2006.

For this reason and because the grandmother had repeatedly failed to produce the child Nadra for the Law Guardian, the Court granted the motion to temporarily suspend the grandmother's unsupervised visitation until the Law Guardian had an opportunity to see the child. In addition, the Court directed the Law Guardian to immediately forward to the Virginia ICPC worker copies of the pleadings in the custody and neglect proceeding as well as the entire case record on the neglect case. The Court also ordered ACS to submit a written report to the [*9]Court on or before December 21, 2007, regarding the current status of the Regulation # 7 custody ICPC that was originally ordered by Hon. Anne Feldman on September 29, 2006 and reordered by this Court on October 11, 2007, but never submitted to Albany.

On December 21, 2007, ACS moved by order to show cause to remove the child Nadra from the grandmother's home and remand her to the care of the Commissioner. Pending the adjourned date, ACS requested interim relief and the authority to conduct an immediate removal. The Court denied the request for interim relief and adjourned the motion to January 4, 2008.

On December 24, 2007, Hon. Ruth C. Balkin, Appellate Division, Second Department reversed this Court's order and granted the application by ACS for a remand. On December 28, 2007, Justice Balkin modified her order of December 24, 2007, vacating the remand and ordering that the grandmother produce the child Nadra in this Court on January 4, 2008.

On January 4, 2008, the paternal grandmother failed to produce the child or appear in Court. ACS and the Law Guardian renewed their application for a removal. In addition, they asked the Court to issue a warrant for the grandmother. During the conference that ensued, the respondent father stated that he would never permit the child Nadra to be produce in New York, since it would result in her removal and remand to foster care. He stated that he would ensure that the child was removed from the country if it were necessary to keep her out of foster care.

For the reasons set forth below, the Court denied the request for a remand without prejudice to renew after the Virginia court determines whether it intends to exercise jurisdiction or terminate or stay the proceedings originated in that state.

LEGAL ANALYSIS

Jurisdiction in child custody matters is governed by Domestic Relations Law Article 5-A, New York's codification of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Domestic Relations Law §76 (1) sets out all possible grounds for subject matter jurisdiction over child custody disputes, including child protective proceedings, and is the exclusive jurisdictional basis for making a child custody determination by a court of this state (DRL §76 [2]).

The primary basis for jurisdiction under the UCCJEA is "home state" jurisdiction (Domestic Relations Law §76 [1]). "Home state" is defined as the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the proceeding. In the case of a child less than six months of age, the term means "the state in which the child lived from birth with any of the persons mentioned" (Domestic Relations Law § 75-a [7]). "The persons mentioned" include a parent or a "person acting as a parent." "A person acting as a parent" is a person who "has physical custody of the child" and who "has been awarded legal custody by a court or claims a right to legal custody under the law of this state" (Domestic Relations Law § 75-a [13]).

In the instant case, either Virginia is the child's home state or she has no home state. The child was born in Virginia and has resided there continuously with her paternal grandmother. The child has never been to the State of New York. The paternal grandmother is a life-long resident of Virginia, as well as a non-respondent in the child protective proceeding pending before this Court.^[FN5] [*10]

Whether the paternal grandmother qualifies as "a person acting as a parent," sufficient to establish that Virginia is the home state, cannot be established on the basis of the motion papers submitted by the ACS and the Law Guardian. The grandmother has physical custody of the child. She has filed a petition for custody in Virginia and has asserted that there is a written agreement among the parties granting her custody, although to date no such agreement has been produced in court. Whether that agreement exists and if it does, whether it establishes that the grandmother has a claim to "a right to legal custody under the law of this state," cannot be established on the existing record.^[FN6]

If Virginia is the child's home state, a court of this state cannot exercise jurisdiction unless and until the Virginia court declines to do so on the ground that New York is the more appropriate forum. If the court in Virginia declines to exercise jurisdiction, a court of this state may do so pursuant to Domestic Relations Law §76 (1)(d), which allows for the exercise of jurisdiction where "no other state would have jurisdiction."

If Virginia is not the home state, then no state is the home state and a court of this state may exercise jurisdiction only if the child and at least one parent have a significant connection with this state other than mere physical presence, and there is substantial evidence concerning the child's care, protection, training, and personal relationships in the state (Domestic Relations Law §76 [1][b][i] and [ii]). In the instant case, the respondent parents have "significant connections" to this state beyond mere physical presence. They both reside here, the father is employed here, and their other children reside in the state. In addition, New York State has [*11]relevant current information relating to the other children's daycare, family relationships, foster homes, friends, as well as the information regarding their present and future care, protection, and schooling.

The child Nadra, however, does not have a "significant connection" to New York, nor is there anyevidence, let alone "substantial evidence," concerning her present care, protection, training and personal relationships in thisstate (Domestic Relations Law §75-d [1][b]), since she has never been in New York State, and there are no relevant records predating the filing of this petition to be found in the state. The child's connections to the State of Virginia are more substantial, since she was born there and has spent every day of her life there with a caretaker who is a permanent resident of Virginia and whose home is being monitored by Virginia authorities.

In any event, no provision of the UCCJEA allows this Court to determine that New York State is the child's home state. While it may be true that the respondent parents and/or the paternal grandmother have engaged in "unjustifiable conduct," such conduct does not permit a court of this state to assume jurisdiction where it otherwise does not exist (Domestic Relations Law § 76-g [1]). To the contrary, it allows a court of this state to decline to exercise jurisdiction if jurisdiction was obtained by "unjustifiable conduct." Nor, under these facts, may a court of this state assert "emergency jurisdiction." Title two of the UCCJEA expressly authorizes a court to exercise "temporary emergency jurisdiction if the child is present in the state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child" (Domestic Relations Law §76 c [1]). Since the child in the instant case is not presently in the state, this Court has no authority to exercise emergency jurisdiction.

In any event, a court of this state may not exercise jurisdiction under the UCCJEA where, as here, at the time this proceeding was commenced, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA. Under these circumstances, jurisdiction can only be assumed by a court of this state if that proceeding has been terminated or stayed by the court of the other state because this state is a more convenient forum (Domestic Relations Law § 76-e 1; Michael McC. v Manuela A., 2007 WL 4533431 [1st Dept 2007]). In the instant case, the Virginia proceeding was commenced first when the grandmother filed a custody petition on November 28, 2007. Virginia, having enacted the UCCJEA, is a "state having jurisdiction substantially in conformity with the UCCJEA" (see Virginia Code § §20-146.1-20-146.38). The New York action was not commenced until December 3, 2007. Accordingly, this Court may not exercise jurisdiction over the matter unless and until Virginia terminates or stays its proceeding.Moreover, having determined that a child custody proceeding was commenced in Virginia, this Court is required to stay its proceeding and communicate with the court in Virginia.^[FN7] [*12]

Where the claim of another state jurisdiction is colorable, a New York court must heed the statutory command to defer adjudicating the dispute and communicate with the other court. A unilateral decision by a New York court to exercise jurisdiction and to prevent the exercise of jurisdiction by a court of another state is contrary to the avowed purposes of the UCCJEA because rather than promote cooperation between courts, such action fosters the very jurisdictional competition sought to be avoided.

Accordingly, it is

ORDERED, that the motion is denied without prejudice to renew in the event that the Virginia court declines to exercise jurisdiction or terminates the action currently pending in that state.

DATED:January 4, 2008E N T E R:

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EMILY M. OLSHANSKY, J.F.C.