Peggy RR. v. Jenell RR.

80 Misc.3d 714

196 N.Y.S.3d 843

In the Matter of a Custody/Visitation Proceeding Pursuant to Article 6 of the Family Court Act, PEGGY RR., Petitioner,

v.JENELL RR., Respondent, Saratoga County Department of Social Services, Interested Party.

Docket No. V-00435-23

Family Court, New York, Saratoga County.

Decided on April 7, 2023

Peggy RR., petitioner pro se.

Andrew C. Blumenberg, Public Defender (Elizabeth Parizh of counsel), for respondent.

Kimberly Craig, Attorney for the Child.

Michelle W. Granger, County Attorney (Jacqualine Lombardo of counsel), for Saratoga County Department of Social Services, interested party.

George P. Conway, Conflict Defender (Neil Weiner of counsel), for Joel QQ., interested party.

Michael J. Hartnett, J. WHEREAS , Petitioner Peggy RR. having filed a Petition under Article 6 of the Family Court Act on February 21, 2023, seeking an Order of Custody/Visitation pursuant to Family Court Act Article 6 concerning the minor child, to wit: Evelyn QQ. (dob: xx/xx/xxxx); and

WHEREAS , the Saratoga County Department of Social Services having filed a Petition under Article 10 of the Family Court Act on March 3, 2023, naming Jenell RR. as a Respondent; and

WHEREAS , the Court having previously issued a Corrective Temporary Order of Custody and Parenting Time on February 24, 2023; and the Court having issued an

Amended Temporary Order of Custody and Parenting Time on March 8, 2023; and

WHEREAS , Petitioner Peggy RR. having appeared, Pro Se ; and Respondent Jenell RR. having appeared with counsel, Elizabeth Parizh, Esq. (Saratoga County Public Defender's Office); and Interested Party Joel QQ. having appeared with counsel, Neil Weiner, Esq. (Saratoga County Conflict Defender's Office); and Saratoga County Department of Social Services having appeared through counsel, Jacqualine Lombardo, Esq. (Saratoga County Attorney's Office) and Caseworker Taylor G. and Senior Caseworker Jordan R.; and Attorney for the Child, Kimberly Craig, Esq., having appeared; and

WHEREAS , it appearing that there is no legal establishment of paternity indicating that Joel QQ. is a parent of the subject child, and upon the consent of counsel for Joel QQ., that Joel QQ. has been removed from the caption of the proceeding herein; and

WHEREAS , the parties having been provided an opportunity to be heard on the applicability of the Interstate Compact on the Placement of Children ("ICPC"), see generally Social Services Law § 374-a, to this case; and

DISCUSSION AND ANALYSIS OF ICPC APPLICABILITY

For purposes of this discussion it should be noted that the following is undisputed by any of the parties to this proceeding; (a) that Petitioner (maternal grandmother) filed a petition under Article 6 of the Family Court Act prior to the initiation of any application or petition being filed under Article 10 of the Family Court Act; (b) that the subject child was born in, and has since resided in the State of New York from the time of her birth; (c) that Peggy RR. resides and is otherwise domiciled in the State of West Virginia; and (d) that the subject child has never been placed in foster care or in the custody of the Department of Social Services or any other agency; and (e) that the Department of Social Services attempted to submit a referral to the New York State Office of Children and Family Services - ICPC office to initiate a home study under the ICPC, and the NYS OCFS - ICPC office refused to accept the referral citing their position that the circumstances and procedural history of this case do not invoke the provisions of the ICPC.

The question before the Court is whether the Court can issue a Temporary (or final) Custody Order providing custody to a relative who does not reside in the State of New York without invoking the provisions of the Interstate Compact on the Placement of Children where the child has not been placed in foster care. The Court answers the question in the affirmative.

Petitioner and the Attorney for the Children have taken the position that the ICPC provisions do not apply to this case based on the circumstances wherein the child has never been placed in a foster care or pre-adoptive setting through the Department of Social Services or another agency. Respondent Jenell RR. and counsel for Interested Party Joel QQ. have taken the position that the ICPC does apply because the Department of Social Services has filed an application under Article 10 of the Family Court Act, and therefore, the child by extension is "under the supervision" of the Department and thus the ICPC would apply. Notably, neither Respondent Jenell RR. or Respondent Joel QQ. object to Petitioner having custody and returning to West Virginia.

"The ICPC is an agreement among the 50 States, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is "construed as state law" in each adopting state."

McComb v. Wambaugh , 934 F.2d 474, 479 (3d Cir. 1991). Notably the ICPC provides that it applies "when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption." Social Services Law § 374-a[1] (Article III) ; see also, D.L. v. S.B. , 39 N.Y.3d 81, 181 N.Y.S.3d 154, 201 N.E.3d 771 (2022). "The case law interpreting the ICPC is limited and is complicated by both the interplay between related and often (as is the case here) contemporaneous proceedings brought under Family Ct. Act articles 6 and 10 and the overarching desire to effectuate an appropriate placement for a child—particularly in those situations where the relevant statutory scheme may be more of an impediment than an aid in achieving a placement that is consistent with the child's best interests." Dawn N. v. Schenectady County Dept. of Social Services , 152 A.D.3d 135, 58 N.Y.S.3d 701 (3d Dept. 2017).

As provided by the Court of Appeals in D.L. v. S.B. , 39 N.Y.3d 81, 86, 181 N.Y.S.3d 154, 201 N.E.3d 771 (2022) :

The Appellate Division Departments have disagreed regarding the applicability of the ICPC to noncustodial parents who reside outside New York. The Second Department has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that "[w]here the custody of a child who is under the supervision of the Commissioner [of Social Services] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply" ( Matter of Alexus M. v. Jenelle F., 91 A.D.3d 648, 650–651, 937 N.Y.S.2d 257 [2d Dept. 2012] ) (internal citations omitted) (internal quotes in original decision).

The Court in D.L. went on to further state:

By contrast, the First Department has expressly declined to follow the Second Department's interpretation of the ICPC and, instead, has held that the ICPC "does not apply" to out-of-state noncustodial parents, reasoning that the plain language of the ICPC limits its application to placements in foster care or adoptive settings ( Matter of Emmanuel B. [Lynette J.], 175 A.D.3d 49, 52, 106 N.Y.S.3d 58 [2019], lv dismissed 34 N.Y.3d 1036, 115 N.Y.S.3d 222, 138 N.E.3d 1104 [2019] ). The Third Department has recently endorsed the First Department's approach, albeit in dicta (see Matter of David Q. v. Schoharie County Dept. of Social Servs., 199 A.D.3d 1179, 1181, 159 N.Y.S.3d 155 [3d Dept. 2021], lv denied 38 N.Y.3d 901 [2022 WL 806690] [2022]. D.L. v. S.B. , 39 N.Y.3d 81, 86-87, 181 N.Y.S.3d 154, 201 N.E.3d 771 (2022) (internal quotes in original decision).

The Third Department decision in Dawn N. v. Schenectady County Dept. of Social Services , 152 A.D.3d 135, 58 N.Y.S.3d 701 (3d Dept. 2017), although factually distinguishable¹ , is instructive. In the Dawn N. v. Schenectady County Dept. of Social Services case, the Third Department held that if a child is in placement, the Court is required to comply with ICPC if the child is being sent out of state, even under an FCA Article 6 Custody Order. The Court finds that the case at bar is distinguishable because Evelyn has not been in a placement at any point during the proceedings. Rather, this Court finds that the provisions of the ICPC would only be invoked when, and if, the child were placed under Article 10 of the Family Court Act. The Court declines to adopt the position of Respondent Jenell RR. and Interested Party Joel QQ. that any filing of any Article 10 Petition or other application by the Department results in the child being "under the supervision" of the Department, where the ICPC must be invoked.

Although provided in dicta , the Third Department provided in the Dawn N. case that:

Although the ICPC does not apply to ‘[t]he sending or bringing of a child into a receiving state by his [or her] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his [or her] guardian and leaving the child with any such relative or non-agency guardian in the receiving state’ ( Social Services Law § 374—a

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