New York Family Law Blog
The Facts:
The subject child was born on 30 October 2000 and was placed in the care and custody of the Administration for Children’s Services (hereinafter ACS) in February 2002 as a result of neglect allegations against her mother, the appellant (hereinafter the mother). Sometime in June 2002, the mother also gave birth to a son who is not the subject of this proceeding but was also placed in a separate foster care home soon after his birth.
A New York Family Lawyer said after the commencement of the aforesaid neglect proceeding, ACS placed the subject child with New Alternatives for Children, Inc. (hereinafter NAC), a New York-authorized foster care agency. NAC placed the child in the non-kinship foster home of a foster mother (hereinafter the foster mother).
On 16 May 2003, by order of fact-finding and disposition, the Family Court, inter alia, adjudicated the subject child a neglected child. As a disposition, the Family Court suspended judgment against the mother for 12 months. In January 2004 ACS changed its permanency goal from “return to parent” to “adoption.” Upon learning of this change, the foster mother informed ACS of her desire for adoption of the child and relocate to the State of Florida at the end of the 2003-2004 school year.
Sometime in April 2004, ACS filed a petition to terminate the mother’s parental rights based on the mother’s failure to plan and her inability to care for her children because of mental retardation. On 10 June 2004, the Family Court approved the modification of the permanency plan. Shortly thereafter, the mother, without the advice of counsel, executed a written consent allowing the child to accompany the foster mother to Florida from 14 June 2004 until 29 July 2004. After the child had arrived in Florida, ACS initiated a placement application pursuant to the ICPC. Although the mother had consented to the child remaining in Florida only until 29 July 2004, neither the foster mother nor the child returned to New York.
A New York Custody Lawyer said that on 30 July 2004, after the child’s return from Florida was overdue, ACS moved by order to show cause in the Family Court, Kings County, to suspend the mother’s visits with the child. On 4 August 2004, the Family Court granted ACS the interim relief it sought but also directed ACS to arrange and pay for a one-week visit by the mother with the child in Florida. This visit occurred in late August of 2004.
On 8 September 2004, the mother’s attorney wrote to ACS requesting that the child be returned to New York. On 17 September 2004, after receiving no response, the mother filed a petition for a writ of habeas corpus, seeking the child’s return to New York and her placement in a New York foster home. On 20 September 2004 and 30 September 2004, the Family Court heard oral argument on the mother’s petition and on ACS’s motion for a suspension of visitation rights. A Nassau County Family Lawyer said the Family Court dismissed the habeas petition on the grounds that the mother lacked standing; that there was no illegal detention; ICPC approval was pending; New York law permitted the foster mother to relocate to another jurisdiction pending such approval; and placement of the subject child was proper. At that point in time, the mother’s parental rights had not been terminated.
Thereafter, the ICPC application for the child’s placement with the foster mother was not approved by Florida authorities. As a consequence, the child has spent nearly two years with the foster mother in Florida, and continues to live there at this time, notwithstanding Florida’s refusal to approve the foster mother as an appropriate placement resource.
The Ruling:
Here, the mother has surrendered her parental rights and in light of this, a dismissal of the appeal from the order which dismissed the mother’s habeas petition, reduced her visitation, and recognized as valid the out-of-state placement of the child would ordinarily be appropriate, as academic. However, an exception to the mootness doctrine is warranted here.
Under the rules, a mootness doctrine precludes courts from considering questions which, although once active, have become academic by the passage of time or by a change in circumstances. A Queens Family Lawyer said an appeal is not to be determined unless it falls within the exception to the doctrine that permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would otherwise be non-reviewable. The exception to the mootness doctrine requires the existence of three common factors: a likelihood that the issue will repeat, either between the same parties or among other members of the public; an issue or phenomenon typically evading appellate review; and a showing of significant or important questions not previously passed upon.
All the aforesaid factors are present here. Issues involving alleged noncompliance with the requirements of Social Services Law have been raised on appeals with increasing frequency. The pattern of alleged ICPC violations has now become manifest. Moreover, ICPC violation issues have often evaded appellate disposition, as the experience of this Court is that cases involving contested out-of-state placements pursuant to the ICPC are frequently settled by the parties, and appeals are withdrawn before the appellate process is concluded. The noncompliance with Social Services Law, whether urged by parties or placement agencies or ordered by courts, presents a significant issue where, as here, a child is prematurely placed with an out-of-state resource that the receiving state later decides is not suitable.
It must be noted that the subject child was permitted to vacation in Florida with her foster mother from 14 June 2004 to 29 July 2004 with the written consent of the biological mother procured without benefit of the advice of counsel. ACS did not initiate an ICPC application until after the child had been taken to Florida, an apparent violation of Social Services Law. The mother, in consenting to the child’s six-week vacation in Florida in June and July 2004 could not have anticipated that the child would not be returned to New York after 29 July 2004. Her visitation with the child was adversely affected by the order of the Family Court dated 4 August 2004, which granted ACS’s application, made after the child was due back in New York, to suspend the mother’s visitation with the child in Florida, and the order dated 30 September 2004, which ultimately reduced the mother’s earlier visitation rights from weekly to monthly. To make matters worse, the receiving state, upon processing ACS’s ICPC application, did not approve the subject child’s placement with the foster mother. Under the facts, the purpose of the ICPC, as embodied by Social Services Law, has been thwarted. ACS knew of the foster mother’s plan to permanently relocate to Florida as early as January of 2004 and in June of that year when its ICPC application was initiated. The child was physically transferred to Florida in June 2004, ostensibly for a limited vacation, with the mother’s consent, and then not returned. As a result, the child has remained with the foster mother in Florida pursuant to a placement that Florida authorities never approved. This blatant violation of the ICPC would have provided a basis for voiding the child’s placement in Florida on appeal. Were this matter not rendered academic by the mother’s execution of a judicial surrender of parental rights, this Court would have reversed the order appealed from, granted the habeas corpus petition, directed a return of the child from Florida to New York for placement in an appropriate foster home, and reinstated the mother’s weekly visitation.
Nonetheless, in light of the mother’s judicial surrender, the Court merely reverses the order insofar as appealed from, dismisses the petition and motion as academic, and affords no relief.
Moreover, Social Services Law is a protective statute designed to assure that out-of-state foster placements are made to appropriate resources. The curious circumstances surrounding the procurement of the mother’s consent to the child’s initial travel to Florida, coupled with the Florida authorities’ subsequent failure to approve the ICPC application, distinguish this matter from cases that have overlooked technical violations of Social Services Law as in the best interests of children. Well-intentioned efforts of law guardians, placement agencies, and courts to match children with suitable foster care, particularly for children whose placements are rendered more difficult by virtue of special needs, must nevertheless comply with the procedural mandates of Social Services Law to fully protect the best interests of foster children departing the state.
In sum, the order is reversed insofar as appealed from, on the law, without costs or disbursements; the petition and motion are dismissed as academic.
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