Family Court, Kings County, January 11, 2024

Administration for Children's Services, Brooklyn (Ahuva Kohanteb of counsel), for petitioner.

Brooklyn Defender Services, Brooklyn (Chas Budnick of counsel), for respondent.

Emmanuel Ntiamoah, Brooklyn, for Raquel C., nonrespondent.

Legal Aid Society, Brooklyn (Abby Finkelman of counsel), Attorney for the Child.

The contested issue before the court in this matter touches on a central question in the modern welfare state: when a child is at risk of harm from one parent, what is the proper role of the government vis-à-vis the child's other, non-offending parent in protecting her? In this case, the Administration for Children's Services (ACS) asserts that it is best positioned to ensure the safety of a vulnerable child and that the rights of the non-offending parent must be subordinated to the state's involvement. Counsel for the child's mother claims that because she has done nothing wrong, lives apart from the respondent, and is the victim of violence at his hands, she should not suffer the liberty intrusion and affront to her dignity that ACS's suggested course of action would entail. The court is called on to resolve this challenging issue, and, for the reasons that follow, rules in favor of the mother.

By petition dated January 11, 2024, ACS alleges that respondent Miguel T. neglected his child Danna, by perpetrating acts of domestic violence against Danna's mother, Raquel C. At the first appearance on the petition, ACS asked for a temporary order releasing the child to Ms. C. with court-ordered supervision and a temporary order of protection against Mr. T. Ms. C. is not being charged with any parental malfeasance and is a nonrespondent in this proceeding. Her attorney agrees the child should be in her care and that there should be an order of protection against the child's father, but on behalf of the mother, he objects to court-ordered supervision over her.

ACS concedes that prior to the filing of the petition, the child lived exclusively with Ms. C. Mr. T. lived elsewhere, and in{**82 Misc 3d at 725} fact, his whereabouts are presently unknown; Ms. C. was the child's de facto sole custodian. She has other children in her care; the respondent was not charged with being a person legally responsible for them and they are not named on the petition.

Every day in New York City, ACS files petitions pursuant to article 10 of the Family [*2]Court Act, invoking the jurisdiction of the court to authorize state intervention into the otherwise constitutionally protected realm of family life. While the government is entitled to exercise its parens patriae role to protect children (Prince v Massachusetts, 321 US 158 [1944]), that role is constrained when there is an available, fit parent. (Stanley v Illinois, 405 US 645 [1972].) Absent evidence that they are unfit or that their actions put their children at risk of harm, parents have the fundamental right to decide what is best for them; that an agent of the state might disagree with these decisions is not an entryway for valid state intervention. (Troxel v Granville, 530 US 57 [2000].)

New York law attempts to balance these interests—child protection on the one hand, and the sanctity of family life on the other—through its statutory scheme. The purpose of article 10 of the Family Court Act itself is

"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 his needs are properly met." (Family Ct Act § 1011.)

In particular, Family Court Act § 1017 provides a framework for the involvement of nonrespondent parents—those who are not charged with maltreating their children—once state intervention has been properly initiated on allegations that the other parent did commit child abuse or neglect. It is this section that ACS typically cites, and on which Family Court daily relies, for orders requiring nonrespondent parents to cooperate with ACS supervision. However, as the facts of this case illustrate, section 1017 is not applicable to every family which becomes the subject of an article 10 filing. In fact, it appears that section 1017 has been misunderstood and misapplied in countless cases.

There are three typical scenarios involving one parent who is a respondent and the other who is a nonrespondent. In the{**82 Misc 3d at 726} first, the respondent was the primary physical custodian of the child prior to the filing of the petition, and ACS seeks an order removing the child from the respondent's home and care and releasing the child to the nonrespondent instead. Under the law, this is considered a "removal" of the child from a parent, as defined by Family Court Act § 1027. (See Matter of Lucinda R. [Tabitha L.], 85 AD3d 78 [2d Dept 2011].)

In the second scenario, the two parents resided together with the child prior to the filing of the petition. In such a case, ACS seeks an order excluding the respondent parent from the home, leaving the child in the care of the second, nonrespondent parent. Though the child does not change residences, this is nevertheless also considered a "removal" of the child from a parent. (See Matter of Elizabeth C. [Omar C.], 156 AD3d 193 [2d Dept 2017].)

In the third scenario, the child lived exclusively with the nonrespondent parent prior to ACS filing a case against the noncustodial, respondent parent. In these cases, ACS seeks an order of protection against the respondent to limit his contact with the child, but does not seek any order which changes custody or the physical home where the child resides.

In all three of these scenarios, ACS typically asks for an order of protection against the [*3]respondent, and an order "releasing the child to the non-respondent parent, with ACS supervision, including announced and unannounced home visits" to the home of the nonrespondent. Family Court has the statutory authority to enter orders that nonrespondent parents cooperate with ACS supervision in the Lucinda R. and Elizabeth C. type scenarios, but it does not have this authority under the third type of case described above. Put simply, section 1017 does not apply to the third category.

The first rule of statutory construction is that words should be given their plain meaning. (McKinney's Cons Laws of NY, Statutes § 232.) And section 1017 is plain on its face: it applies "[i]n any proceeding under this article, when the court determines that a child must be removed from his or her home, pursuant to part two of this article." (Family Ct Act § 1017 [1].) Part 2 of article 10 includes section 1027, and as noted above, the meaning of "removed" under section 1027 has been defined by cases such as Lucinda R. and Elizabeth C.

However, there is no sensible reading of sections 1017 or 1027 which could make the third scenario—the one at issue in this particular case—one in which the child has been "removed" {**82 Misc 3d at 727}from a parent. On January 5, 2024, the child Danna was living with her mother, when her father allegedly came to the mother's home and violently assaulted her. On January 11, 2024, ACS filed a petition against Mr. T. ACS's request, at the end of the first appearance, is for the child to continue living with her mother, in the same residence as always. This is not a removal from the nonrespondent parent, and it is not a removal from the home. Nor is it a removal from the respondent parent. The child did not live with her father. The child is not being moved from one parent's home to another, as was the case in Lucinda R. The child is not being deprived of the daily care of her father through an order of exclusion, as was the case in Elizabeth C. At most, the child is experiencing a limitation on her visitation with her noncustodial parent, but visitation restrictions—made pursuant to Family Court Act §§ 1029 and/or 1030—are not removals.

The language ACS typically seeks in all one-respondent cases in which there is a suitable nonrespondent available to care for the child originates from subdivision (3) of section 1017. Even in those cases where section 1017 is applicable, the type of order which ACS requests is optional, not mandatory.

"An order temporarily releasing a child to a non-respondent parent . . . may not be granted unless the person . . . to whom the child is released . . . submits to the jurisdiction of the court with respect to the child. The order shall set forth the terms and conditions applicable to such person . . . and may include, but may not be limited to, a direction for such person or persons to cooperate . . . with . . . visits by the child protective agency, including visits in the home." (Family Ct Act § 1017 [3].)

Quite clearly, however, as noted above, section 1017 is not applicable at all to cases such as the one presently before the court. And therefore, the court has no authority to require Ms. C. to submit to its jurisdiction, or even to "release" the child to her. The child has not been removed, so there is no cause to "release." The status quo ante regarding custody and care remains in effect, limited only by an order of protection against Mr. T. In this case, the sole focus of the court, as limited by statute, is on the respondent and the child, not the nonrespondent.

ACS may be concerned that this reading of section 1017 hampers its child protective mission. However, all other statutory{**82 Misc 3d at 728} provisions that might apply generally would still apply in this case [*4]and others like it. For example, if Ms. C. does not voluntarily cooperate in making the child available for reasonable, periodic assessments—to verify that Mr. T. is not violating the order of protection, for example—then the provision of Family Court Act § 1034 (requiring a parent to produce a child to ACS for an interview) remains available. Fundamentally, however, because Ms. C. is not alleged to be unfit, and because the child has not been removed from a parent or her home, the only person responsible under the law for protecting Danna is her mother. That her father is alleged to have harmed the child does not give the state carte blanche to make demands on her mother. The proper balance is reached by giving section 1017 its plain meaning, and leaving Ms. C. as the primary protector of her child.

Therefore, for the foregoing reasons, it is hereby ordered that ACS's application for an order directing Ms. C. to cooperate with ACS supervision is denied.