Constitutional Law - Right to Bear Arms - Red Flag Law - Application for Temporary Extreme Risk Protection Order against 10-Year-Old Child

Guardian and Ward - Guardian Ad Litem - Costs and Fees Paid for by Government Entity

Parties - Necessary Parties - Department of Social Services Necessary Party in Extreme Risk Protection Order Proceeding against Child

Letitia James, Attorney General, Poughkeepsie (Suzette Corinne Merritt of counsel), for petitioner.

On or about February 4, 2025, an application for a temporary extreme risk protection order (TERPO) was filed by the New York State Police against R.J.B., a 10-year-old child; and after consideration of the allegations set forth in the petition, this court having denied the request for a temporary extreme risk protection order; and the matter having appeared before this court on February 14, 2025, wherein the court inquired of petitioner regarding the allegations in the petition; and the petition alleging that this 10-year-old child resides in his home with three additional minor children, who are 11, 4 and 3 years old; and this court having inquired on the record and having been advised that despite the fact that petitioner is a mandated reporter, and despite the allegation that this child is at risk of extreme harm and that he poses a risk to others, presumably including the additional three minor children in the home, petitioner has not taken steps to report these allegations to Child Protective Services (hereinafter referred to as CPS) pursuant to the provisions of the Social Services Law; and this court having issued an order, sua sponte, which directed that petitioner show cause why an order should not be entered appointing a guardian ad litem (hereinafter referred to as GAL) to represent the child at petitioner's expense, an order finding the Department of Social Services (hereinafter referred to as DSS) to be a necessary party to these proceedings, and an order staying all proceedings pending a report regarding the services that are necessary to [*2]address the risk of harm articulated in the petition; and this court having directed that the order to show cause be served on the Legal Department of DSS and directed submissions on or before February 19, 2025, and submissions having been received from petitioner and DSS.

Now, it is hereby ordered, by separate order issued contemporaneously with this writing, a GAL is hereby appointed to represent R. The GAL will be compensated by petitioner in an amount determined by the court, consistent with the compensation paid to an attorney for the child (hereinafter referred to as AFC) appointed pursuant to section 249 of the Family Court Act; and it is further ordered that the DSS is deemed a necessary party insofar as any factual determinations rendered in this proceeding regarding the existence, nature and cause of the risk of harm to the respondent and his siblings would be binding on DSS at such time as DSS investigates and/or acts to address said risk in the course of their statutory responsibilities;{**87 Misc 3d at 406} and by separate order, these proceedings are hereby stayed pending further proceedings and a report from the GAL regarding the status and recommendations regarding necessary services and orders to ameliorate any risk of harm to the child and his siblings.^[FN1]

Findings of Fact

R.J.B. (hereinafter referred to as R) was born to S.V. on XX XX, 2014. He resides with his mother and three additional children, P., DOB XX XX, 2013, J., DOB XX XX 2020, and M., DOB XX XX, 2021. According to the petition, R has been diagnosed with severe attention deficit hyperactivity disorder (hereinafter referred to as ADHD) and is on the autism spectrum and R's doctor has discontinued his medication.

The petition does not provide any information regarding services that are in place in the home. When questioned, the State Trooper indicated that he had no information regarding these issues. According to the submission received from DSS, the family is in receipt of extensive preventive services through DSS. While these services are outlined in the written communication to the court, counsel for DSS indicates that "[t]his information concerning Preventive Services is confidential and shall not be further redisclosed."

The petition attaches copies of five incident reports from the New York State Police commencing on September 13, 2024, and continuing through December 2, 2024.

According to the petition,

"On Tuesday, February 4, 2025, at approximately 11:00 A.M., UC-911 dispatched Ellenville Troopers . . . for a reported 10-year-old male acting out of control. Trooper[s] . . . responded and interviewed . . . S.V., who stated her son . . . has been acting out of control and threatened to stab S. as well as kill everyone else in the house. S. also stated that last night R. broke a glass and today he attempted to break his tablet but was unable to because his sister P. B. took the tablet before he could break it . . . R. is on the autism [*3]spectrum and has been{**87 Misc 3d at 407} diagnosed with severe ADHD although his doctor has discontinued his medication. R has multiple outbursts in the past where the State Police have responded to his residence. On 5 separate occasions . . . police have responded, and he has threatened harm to himself or his family by threatening to kill them. In the past R. has also harmed himself by stabbing his leg with a pencil and hitting his head against a wall. S. informed Troopers on the scene that R.'s behavior is becoming too much for her to handle and wanted him to be transported . . . for a mental health evaluation. While Troopers were interviewing R.'s mother . . . he was continuing to act extremely agitated and at points began screaming at her . . . Trooper G. transported R. to Health Alliance Hospital for further mental health evaluation."

Notably absent from the petition is any indication that this 10-year-old child has access to a firearm or that he has threatened to obtain or use a firearm. Moreover, the petition does not explain how an order that directs that a 10-year-old child cannot purchase or possess a firearm serves any legitimate purpose when such purchase or possession is already unlawful.

As noted above, this court denied the application for a TERPO and explained that the respondent is 10 years old and on the autism spectrum and there is no basis in the petition to find even a remote possibility that the child can acquire a firearm in or out of the home or that he could purchase a firearm. The court further noted that the matter appears to belong in Family Court where the court has the ability to direct and monitor necessary services to address the child's behavior and where the court is best equipped to address and protect the child's best interests.

As noted above, given this court's concerns and in consideration of the provisions of the Social Services Law and article 10 of the Family Court Act, on February 14, 2025, this court issued an order to show cause as outlined above.

Petitioner submitted its response outlining arguments against the relief stated in the order to show cause. With regard to the appointment of a GAL at petitioner's expense, petitioner argued that there is no statutory authority in article 63-A of the CPLR to order a government entity to pay costs and/or fees. They further argued that ordering petitioner to pay the{**87 Misc 3d at 408} cost of a GAL "violates the separation of powers doctrine by encroaching upon the Legislature's exclusive authority over appropriations."^[FN2] In presenting this argument, petitioner failed to recognize that while article 63-A is silent regarding the imposition of costs for a GAL, CPLR 1202 and 1204 apply to all actions brought pursuant to the CPLR and specifically authorize this court to appoint a GAL at the expense of any party to the action.

Petitioner further argued that DSS is not a necessary party because it lacks primary responsibility over extreme risk protection order (ERPO) proceedings, and the court has no authority to assign it a role the legislature deliberately excluded.^[FN3] Again, in presenting this argument, counsel disregarded that the primary allegation in the petition is that the respondent and his siblings are at risk of extreme harm, nor did they address that DSS is the specific government entity charged by the [*4]legislature to investigate and address situations where minor children are potentially at risk.^[FN4]

Applicable Law

Contrary to petitioner's argument, the determination on this order to show cause is not dependent on the provisions of article 63-A of the CPLR nor the provisions of Mental Hygiene Law § 83.25. An extensive number of intertwined statutes and regulations dictate how this court must proceed given that the gravamen of the petition is that four young children are at extreme risk of harm. This court's analysis of the issues presented includes consideration of the provisions of the CPLR, Mental Hygiene Law, Social Services Law and Family Court Act, as well as the principles that are set forth in the New York State Constitution regarding the general equity responsibility of the Supreme Court.

This court's function to act as parens patriae

"remains available despite the active existence of {**87 Misc 3d at 409}social service organizations. Nor can this traditional function be abrogated by statute, since it is founded in the equity powers of the court, as derived from the chancery . . .

"In exercising their traditional equity powers, courts have been guided by the principle that the paramount, if not the sole, determining factor is the best interests of the child . . .

"[A] mere determination that an authorized agency has not acted unreasonably, is insufficient. Instead, the more difficult determination as to what is in the child's best interests must be resolved. That highly sensitive and, at times, most difficult determination must be made on the basis of no criteria other than the furtherance of the child's welfare and best interests" (Matter of Alan D.M. v Nassau County Dept. of Social Servs., 58 AD2d 111, 116-117 [2d Dept 1977]).

As noted, the application before this court is brought pursuant to article 63-A of the CPLR which is silent with regard to the right of an indigent respondent to the appointment of counsel. It is also silent with regard to its application to minor children; it does not include any procedures to appoint an AFC to protect the due process rights of the minor child nor does it include any other provisions regarding the potential representation of a minor child who is the subject of an ERPO.^[FN5]

With regard to the appointment of a GAL, CPLR 1202 (a) provides that "[t]he court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative" and section 1204 provides that "[a] court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party." The statute does not exclude any particular type of civil proceeding.

"The manner of compensation for a guardian ad litem appointed under CPLR 1202 is dictated by CPLR 1204, which provides, in [*5]relevant part: '[a] court may allow a guardian ad litem a reasonable compensation for his [or her] services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other{**87 Misc 3d at 410} property' " (Matter of Baby Boy O., 298 AD2d 677, 679 [3d Dept 2002]).

With regard to necessary parties, CPLR 1001 (a) provides in relevant part that "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." CPLR 1003 provides that the nonjoinder of parties "is . . . ground[s] for dismissal of an action without prejudice unless the court allows the action to proceed without that party" and that "[p]arties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just."

CPLR 1001 requires joinder of a government agency or official where the court's judgment may infringe on the agency's or official's rights and powers. "The rule . . . insures fairness to third parties who ought not to be prejudiced or embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard" (City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475 [1979] [internal quotation marks omitted]; see also Matter of Hofstra Univ. v Nassau County Planning Commn., 231 AD3d 1025 [2d Dept 2024]). "Dismissal of an action or proceeding for nonjoinder of a necessary party is only a last resort. . . . When a necessary party has not been made a party and is subject to the jurisdiction of the court, the proper remedy is not dismissal of the complaint, but rather for the court to order that the necessary party be summoned" (Matter of Cuomo v East Williston Union Free Sch. Dist., 227 AD3d 897, 901 [2d Dept 2024] [internal quotation marks omitted]).

Social Services Law § 411 provides that

"[a]bused and maltreated children in this state are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment. It is the purpose of this title to encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and competently and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children and parents involved."{**87 Misc 3d at 411}

In accordance with the State's interest in protecting vulnerable children, individuals identified in Social Services Law § 413 (1) (a) are

"required to report or cause a report to be made . . . . when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child . . . or . . . where the parent . . . comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."

According to Social Services Law § 412 (2) (a), a maltreated child is a child under the age of 18 years who is "defined as a neglected child by the family court act." According to Family Court Act § 1012 (f) (i), a neglected child is a child "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care."

Discussion/Conclusions

While petitioner has chosen to file this matter pursuant to CPLR article 63-A, this court cannot ignore the true nature of the allegations brought before the court and would be remiss in [*6]its duties if it addressed the matter strictly within the confines of an application for an ERPO. If this court accepted petitioner's implicit argument that this court must merely decide the limited issue of whether an ERPO is warranted, this court would be left in the untenable position of potentially dismissing the petition and ignoring an allegation brought by a law enforcement agency that four young children are at extreme risk of harm.

This court has considered counsel for petitioner's argument that "[t]he Legislature carefully structures law enforcement procedures to balance efficiency, due process, and public safety, ensuring agencies fulfill their mandates without undue financial or administrative burdens." This court finds that this argument is belied by the applicable legislation's failure to limit its application to situations where there are specific allegations regarding the potential possession and/or use of firearms, and the virtually unfettered authority granted to law enforcement to seek orders without sufficient supporting facts. The argument that this legislation is "carefully structured" is {**87 Misc 3d at 412}also belied by the failure of the legislature to include age limits or to reconcile the statute with preexisting laws regarding the possession, sale or use of firearms. The legislature also failed to address the overlap with the extensive preexisting statutory process whereby allegations of potential risks of harm to minors are reported by mandated reporters, investigated by CPS and, if appropriate, addressed in child protective proceedings in Family Court.

Given the stated legislative intent of article 63-A, this court cannot accept that the legislature intended for this court to address the allegations raised by petitioner in a vacuum without addressing the potential risk of harm to these children in a more substantive and wholistic manner. Clearly, given this court's responsibility as parens patriae, ignoring the far ranging and multifaceted risk of harm that petitioner has brought to the court's attention would be an abdication of this court's responsibility. In consideration of the above, this court rejects petitioner's argument that the applicable statute must be read as to limit the court's options in the manner advanced by petitioner.

Under the circumstances, it is the responsibility of this court to fashion a remedy that addresses the allegations brought forward and ensures that the matter is addressed according to the appropriate statutory frameworks set forth by the legislature. In so doing, this court recognizes the lack of applicable case law regarding the issues herein. This court must engage in the difficult task of crafting a procedural mechanism to protect the due process rights of the parties and that also serves the numerous compelling interests at stake. Most importantly, this court must fashion a remedy that ensures that four minor children are protected from the risk of harm that petitioner has brought before the court. In this regard, DSS has submitted a brief summation of preventive services that are in place, and based upon that submission, this court is satisfied that DSS is now aware of and is addressing the situation in the home. Nevertheless, the written communication from DSS is not a substitute for evidence in this proceeding. The probative and likely controlling evidence that is necessary for this court to address the relief requested by petitioner is in the possession and control of DSS.

With regard to the argument that relies on the legislative intent of article 63-A, it is the finding of this court that there is no reading of the statute or the legislative history that would{**87 Misc 3d at 413} support a claim that the petitioner acted in accordance with or in furtherance of the intent of the legislature. According to the sponsor's memorandum, the purpose of the ERPO statute is to "prevent individuals determined by a court to be likely to engage in conduct that would result in serious harm to themselves or others from purchasing, possessing or attempting to purchase or possess a [*7]firearm, rifle, or shotgun." (Assembly Mem in Support of 2019 NY Assembly Bill A2689, enacted as L 2019, ch 19.) The memorandum further explains that the justification for the statute is that "New York currently lacks a procedure permitting a court to issue an order to temporarily seize firearms from a person who is believed to pose a severe threat of harm to himself, herself or others unless that person has also been accused of a crime" and that "[t]his bill would provide all of the necessary procedural safeguards to ensure that no firearm is removed without due process while ensuring that tragedies like the school shooting[s] . . . do not occur in New York" (id.).

Considering the specific allegations raised in the petition, it seems apparent that this proceeding does not further the legislative purpose of article 63-A in any significant way. In this regard, this court cannot envision any circumstance where this 10-year-old child would be able to purchase a firearm. This court also cannot envision any circumstances where R could possess a firearm that would not be the result of the failure of his parent to exercise a minimum degree of care and/or a proper degree of supervision.

As noted above, petitioner has brought a petition under a law intended to address concerns related to firearms when there is no allegation regarding the use, possession, or attempted possession of a firearm. In so doing, petitioner seemingly ignored its responsibility as a mandated reporter and did not take appropriate and necessary steps to ascertain and report suspicions of an extreme risk of harm to four minor children. Had petitioner reported these incidents to CPS, the incidents before this court could have been properly investigated. In this regard, during a preliminary appearance before this court, the testifying trooper indicated that he has not undergone training as a mandated reporter,^[FN6] he was unaware of whether the family has any open investigations or active{**87 Misc 3d at 414} involvement with Child Protective Services, he had no information on whether preventive services were in place nor any information as to whether there were current orders of supervision in place from Family Court.^[FN7] The witness was also unable to clearly answer questions from this court regarding why no report was made.^[FN8]

In this regard, it is important to note that this court is not, in any way, implying or finding that these children have been maltreated or placed at risk of harm. That determination would properly be made after a report was made and duly investigated and after DSS made a determination as to whether court intervention is warranted. If needed, such intervention would properly be sought in the Family Court in accordance with the extensive procedural processes outlined in the Family Court Act. The Family Court judge would then act within his or her specific statutory authority and utilize the mechanisms in place to address the family situation, whether pursuant to [*8]a child protective proceeding, a person in need of supervision proceeding pursuant to article 7 of the Family Court Act or another applicable proceeding.

In this regard, the court also notes the provisions of Family Court Act § 233 which

"broadly declares that [w]henever a child within the jurisdiction of the court appears to the court to be in need of medical, surgical, therapeutic, or hospital care or treatment, a suitable order may be made therefor. The statute provides Family Court with the authority to do whatever is necessary and appropriate to ensure a child's welfare" (Matter of Athena Y. [Ashleigh Z.], 201 AD3d 113, 118 [3d Dept 2021] [internal quotation marks omitted]).

While the Supreme Court has general equity authority, there are no comparable provisions that pertain to ordering appropriate services to address a child's welfare in a civil action filed in the Supreme Court.{**87 Misc 3d at 415}

Appointment of GAL

This court has reviewed the submissions from the Attorney General and finds that their arguments in opposition to such an appointment are without merit. Specifically, the Attorney General argues that "New York law explicitly prohibits courts from assessing fees, cost or expenses against the state absent express statutory authorization" and argues that "the appointment and compensation of a GAL are entirely statutory." Petitioner cites to, inter alia, Mental Hygiene Law § 83.25 and Matter of Green (Potter) (51 NY2d 627 [1980]) in support of their argument. This court notes that this proceeding has not been brought pursuant to the Mental Hygiene Law. Contrary to counsel's argument, CPLR 1202 and 1204 clearly and unambiguously authorize the imposition of the cost of a GAL on the moving party, in this case, the New York State Police.

In determining this application, this court must follow the well accepted rules of statutory construction. In this regard, it is well accepted that as

"the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof . . . Additionally, [w]here a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 56 [2011] [internal quotation marks omitted]).

"A fundamental rule of statutory construction is that the Legislature is presumed to mean what it says and when the language of a statute is unambiguous, it is to be construed according to its natural and most obvious sense, without resorting to an artificial or forced construction . . . Stated otherwise, when a statute is free of ambiguity, a court should construe it so as to give effect to its plain meaning" (Matter of Giello v Providence Fire Dist., 57 AD3d 1294, 1296 [3d Dept 2008] [internal quotation marks omitted]).

This court has considered the provisions of CPLR 1202 and 1204 and has considered the proper interpretation of these statutes in light of the provisions of article 6, title 6 of the Social Services Law and article 10 of the Family Court Act.{**87 Misc 3d at 416} This court has also considered the legislative intent underlying Family Court Act § 249 which requires the court to appoint an AFC to a minor child in the majority of proceedings in Family Court. It provides that in making such an appointment, "the court shall, to the extent practicable and appropriate, appoint the same attorney who has previously represented the child." (Id.) This court has also considered that the Supreme Court has the authority to appoint an AFC "in a proceeding over which the Family Court might have exercised jurisdiction had such action or proceeding been commenced in Family Court or referred thereto" (22 NYCRR 7.2 [a]). This court has further considered that in adopting article 63-A, the legislature specifically articulated its intention to "provide all of the necessary procedural safeguards" and to ensure that actions are not taken without due process.[*9]

Clearly, the New York State Police, as the petitioner in this proceeding, is a party to the action and the statute authorizes this court to require that they pay the costs of the GAL. Moreover, given the seemingly specious allegations in the petition, most notably the fact that the petition does not allege any facts related to the potential use of a firearm or the threat to acquire a firearm, it is the finding of this court that it is just and appropriate to require that the GAL be compensated by petitioner. In this regard, it should be beyond argument that a 10-year-old child cannot purchase a firearm and any allegation that a 10-year-old child with R's special needs has access to a firearm would, in the view of this court, raise child protective concerns.

This court has also considered petitioner's argument that this court cannot impose costs on a government entity and their citation to Matter of Green and its progeny. In considering counsel's argument, this court notes that children are routinely represented by counsel in matrimonial proceedings in Supreme Court and in all types of proceedings in Family Court and that the cost of the AFC is paid by the State. This court has also considered that the assignment of a GAL in this proceeding would have been unnecessary if petitioner had followed the proper protocol as outlined by DSS in its submission. In this light, it is the petitioner who chose to file a proceeding in this court that clearly falls outside the scope of the applicable statute and, in the context of this petition, has alleged that a 10-year-old child and potentially his three siblings are at extreme risk of harm.

Upon consideration of these numerous statutory provisions, applicable case law regarding a child's right to representation,{**87 Misc 3d at 417} and applicable rules and regulations, it is the finding of this court that this court has the statutory authority to appoint a GAL to represent the best interests of the child and that the expense of said representation will be borne by petitioner. In this regard, the court finds authority in the clear and unambiguous terms of CPLR 1202 and 1204 which describes particular situations where it is to apply, and no qualifying exception have been included.^[FN9] As such, there is an irrefutable inference that "what is omitted or not included was intended to be omitted or excluded." As such, counsel's argument that government entities are somehow excluded from the general and unqualified use of the term "party" in CPLR 1204 is without merit. This court has considered the cases cited by petitioner in opposition to the proposed appointment and finds that these cases are all distinguishable from the facts herein and they are not persuasive.

DSS as Necessary Party

While this proceeding has been filed as an ERPO, it is the finding of this court that given the age of the respondent, and the allegations set forth in the petition, the true nature of this proceeding and the critical and controlling issue brought before this court relate to potential risk of harm to four minor children. In this regard, given the court's general equity powers and its responsibility to act as parens patriae, petitioner's choice to file this proceeding as an ERPO is of minimal consequence.

This court finds that proceeding in this ERPO without the participation of the Department will lead to findings of fact and conclusions regarding the existence and nature of [*10]any risk of harm to these children and further findings regarding whether this risk is the result of the parent failing to exercise a minimum degree of care. In the context of this proceeding, the court will also necessarily address the underlying mental health issues that are set forth in the petition (see Maxwell v D.L., 84 Misc 3d 1225[A], 2024 NY Slip Op 51526[U] [Sup Ct, Ulster County 2024]). Given the Department's participation in the delivery of these services, as outlined in the communication received by the court, any evidence regarding this critical{**87 Misc 3d at 418} issue is in the control of DSS. Moreover, as the agency monitoring and coordinating the services, DSS must be given the opportunity to control the dissemination of information regarding the services and must be allowed to raise objections in the event the fact-finding process in this matter could interfere with the relationship the family has with the litany of providers. Petitioner presenting evidence, and this court rendering findings, without the participation of DSS would potentially compromise their ability to properly address the child protective issues within the statutory framework set forth in the Social Services Law and Family Court Act.

It is the further finding of this court that contrary to petitioner's argument, DSS is precisely the government agency that is charged with addressing allegations regarding children at risk of harm. Arguing to the contrary demonstrates the specific misunderstanding of the applicable processes that led to this court's issuance of the order to show cause.

As such, it is the finding of this court that DSS is a necessary party. Complete relief regarding the allegation that the respondent and his siblings are at risk of extreme harm cannot be accomplished without the participation of DSS and DSS might be inequitably affected by any findings or judgment in this action. Petitioner is therefore ordered to join and serve DSS with a copy of the petition in order to secure jurisdiction over this necessary party.

"[w]e would oppose any joinder of our agency as a necessary party in these proceedings, counsel does not articulate any legal argument regarding this issue, nor do they explain how this Court can address the allegation that this child and/or his siblings are at risk of harm without their participation."