Family Court, Clinton County, June 19, 2018

Clinton County Department of Social Services, Plattsburgh (Thomas H. Webb III of counsel), for petitioner.

Matthew E. Douthat, Plattsburgh, for Kayla C., respondent.

Niles, Bracy & Mucia, Plattsburgh (Joseph R. Mucia of counsel), for Cody C., respondent.

Lauren Parnes, Plattsburgh, for Joseph C., non-respondent father.

Meredith A. Neverett, Plattsburgh, Attorney for the Children.

Joseph C. (hereinafter non-respondent father) and Kayla C. (hereinafter respondent mother) are the parents of Elizabetta C. (date of birth xx/xx/xxxx) and Shailynn C. (date of birth xx/xx/xxxx). Respondent mother is married to Cody C. (hereinafter Mr. C.).

On March 26, 2018, the Clinton County Department of Social Services filed a petition pursuant to article 10 of the Family Court Act alleging that respondent mother neglected three children including Elizabetta and Shailynn. On that same date, the Department filed a petition against Mr. C. alleging that he had neglected five children including Elizabetta and Shailynn. At the initial appearance on the petitions, non-respondent father intervened pursuant to Family Court Act § 1035 (d). On non-respondent father's application, the court assigned counsel to represent him.

On May 29, 2018, Mr. C. and respondent mother made substantial admissions to the petitions and consented to findings of neglect. Essentially, Mr. C. and respondent mother admitted that they regularly and repeatedly used marijuana and cocaine during times when they were responsible for the care of their children and that their use of these drugs placed the children's emotional, mental and/or physical well-being in imminent danger of becoming impaired. Based upon their voluntary admissions and consent, the court found that the subject{**60 Misc 3d at 605} children were neglected children as that term is defined by Family Court Act § 1012 (f) (i) (B).

Thereafter, the court conducted a dispositional hearing. During the dispositional hearing, the Department, respondent mother, Mr. C. and the Attorney for the Children advocated for placement of the children with the children's maternal grandmother, Sarah C. and her paramour, Harold M.^[FN*] The parties advocating for this disposition did not admit a scintilla of evidence regarding non-respondent father nor did they ever mention non-respondent father during their closing arguments. No evidence was admitted regarding any preexisting Family Court Act article 6 orders. During the dispositional hearing, non-respondent father, although represented by counsel, remained silent. His counsel did not make an opening statement, did not offer any evidence and did not make a closing argument. Non-respondent father did not indicate, through counsel, that he supported the Department's position.

[1] The first question presented to the court is how to interpret non-respondent father's request to intervene and subsequent silence. Family Court Act § 1035 (d) provides that a non-respondent parent has "the right to appear and participate in the proceeding as an interested party intervenor for the purpose of seeking temporary and permanent release of the child under this article or custody of the child under article six of this act." Essentially the non-respondent parent can intervene for two purposes: (1) to seek release of the child under article 10; or (2) to seek custody of the child under article 6. (See also Family Ct Act § 1052 [a] [ii], [vii].) In order to obtain custody under article 6, the non-respondent parent must file a petition under article 6. (See Family Ct Act §§ 651 [c-1]; 1052 [a] [vii].) Because section 1035 (d) provides for only two purposes to intervene and the second purpose is subject to a condition precedent, the filing of an article 6 petition, the court concludes that when an article 6 petition is not filed the non-respondent parent intervenor, may only seek the release of the child. Given non-respondent father's intervention and his failure to file an article 6 petition, the court concludes that non-respondent father intervened for purposes of seeking the release of his children to him.{**60 Misc 3d at 606}

The next question presented concerns the utter lack of evidence admitted related to non-respondent father. It has long been held that it is a fundamental principle of New York law that a parent has a claim of custody to his or her child superior to that of all others unless it is [*3]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].)

[2] 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. In this case, the Department not only failed to demonstrate unfitness or any other type of extraordinary circumstances, but failed to even allege that the non-respondent father was unfit to care for the child or that some other type of extraordinary circumstances existed.{**60 Misc 3d at 607}

This court may not rely on its own historical memory or take judicial notice of events outside of the record. (See Matter of La Bier v La Bier, 291 AD2d 730 [3d Dept 2002].) Furthermore, although this court may clarify an issue, it may not make the record. (See Matter of Kyle FF., 85 AD3d 1463 [3d Dept 2011].)

On this record, the court concludes that it has no alternative but to release the subject children to their non-respondent father and shall issue an order of disposition in accordance with this decision.