State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 26, 2017 521559 

_____________________________________

In the Matter of ANGELA F.,

Appellant,

v

MEMORANDUM AND ORDER

ST. LAWRENCE COUNTY DEPARTMENT

OF SOCIAL SERVICES,

Respondent.

(And Five Other Related Proceedings.)

_____________________________________

Calendar Date: November 16, 2016

Before: Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Cynthia Feathers of counsel), for appellant.

David D. Willer, St. Lawrence County Department of Social

Services, Canton, for respondent.

Reginald Bedell, Elizabethtown, attorney for the children.

__________

Clark, J.

Appeals from two orders of the Family Court of St. Lawrence

County (Morris, J.), entered August 6, 2015, which dismissed

petitioner's applications, in proceedings pursuant to Family Ct

Act articles 10 and 6, to, among other things, enforce a prior

order of visitation.
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These appeals present the Court with a tragic situation in

which Family Court's repeated judicial errors have contributed to

the prolonged separation of petitioner (hereinafter the mother)

and two of her children (born in 2003 and 2005) (Matter of

Desirea F. [Angela F.], 137 AD3d 1519 [2016]; Matter of Desirea

F. [Angela F.], 136 AD3d 1074 [2016]; Matter of Dakota F. [Angela

F.], 110 AD3d 1151 [2013], lv denied 22 NY3d 1015 [2013]; Matter

of Dakota F. [Angela F.], 92 AD3d 1097 [2012]). The mother's son

and daughter were adjudicated to have been neglected in 2004 and

2006, respectively. The children were removed from the mother's

care and placed in foster care in December 2007 and they were

again adjudicated to be neglected in 2008. While the children

were initially placed in several different foster homes, they

have continuously resided together with the same foster parents

since 2011. In September 2009, respondent submitted a permanency

hearing report recommending that the permanency goal be changed

to placement for adoption, and, after a hearing, Family Court

(Potter, J.) erroneously imposed the concurrent and inherently

contradictory permanency goals of return to parent and free for

adoption (Matter of Dakota F. [Angela F.], 92 AD3d at 1098-1099). 

In 2010, respondent commenced permanent neglect proceedings

against the mother, but the underlying permanent neglect

petitions were subsequently withdrawn and replaced with petitions

seeking to terminate the mother's parental rights to the children

based on mental illness (see Social Services Law § 384-b [4]

[c]). In September 2011, following a hearing, Family Court

adjudicated the mother to be a mentally ill parent unable to

parent her children, and terminated her parental rights to the

children. In October 2011, the mother last visited with the

children.

In October 2013, upon the mother's appeals, this Court

reversed the orders terminating the mother's parental rights and

dismissed the underlying petitions (Matter of Dakota F. [Angela

F.], 110 AD3d at 1154). Shortly thereafter, the mother commenced

the instant Family Ct Act article 6 and article 10 proceedings

seeking, in essence, to reestablish contact with the children. 

In January 2014, notwithstanding the mother's request that she be

permitted contact – in any form – with the children pending a

hearing on her petitions, Family Court (Morris, J.) refused such

request on the basis that the mother had not had contact with the
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children "in excess of two years" and did not allow any form of

contact. 

Meanwhile, during the pendency of these proceedings,

respondent commenced permanent neglect proceedings against the

mother seeking to again terminate her parental rights to the

children.1 A permanency hearing was held in February 2014 and,

in June 2014 orders, Family Court changed the permanency goal

from return to parent to free for adoption and such goal was

continued in permanency orders issued in September 2014. 

Emphasizing the inadequacy of the record, the absence of

meaningful efforts on the part of respondent and Family Court's

failure to even inquire as to the mother's current situation,

this Court ultimately reversed so much of the June 2014 and

September 2014 permanency orders that modified the permanency

goal (Matter of Desirea F. [Angela F.], 136 AD3d at 1076-1077).

In September 2014, roughly eight months after the mother

had commenced the instant proceedings, Family Court began hearing

proof on the petitions relating to the children.2 The hearing

continued piecemeal over the course of seven months and, on March

16, 2015, the proof was closed. However, the parties were given

time to submit written summations. On June 26, 2015, roughly 20

months after the mother filed the instant petitions, Family Court

dismissed the petitions in a bench decision, and, on August 6,

2015, orders were entered thereon. The mother appeals.3

1 At the time of oral argument, the permanent neglect

proceedings were still pending.

2 In June 2014, Family Court began hearing proof on other

pending petitions relating to two of the mother's other children;

one of these children resides with the mother and her husband,

while the other child resides with her paternal grandmother, with

whom the mother and the child's father share joint legal custody.

3 The mother's notices of appeal purport to appeal from

Family Court's June 2015 bench decision, from which no appeal

lies (see CPLR 5512 [a]; Family Ct Act § 1112). Nevertheless, in

an exercise of our discretion, we will view the appeals as having
-4- 521559 

The mother argues that Family Court should have permitted

her some form of contact with the children following this Court's

October 2013 determination reversing the orders that terminated

her parental rights to the children.4 At the outset, we must

address Family Court's flawed understanding of the legal effect

of our October 2013 order reversing the orders that terminated

the mother's parental rights to the children. Inexplicably,

Family Court incorrectly and repeatedly stated on the record that

there was no declaration by this Court that the mother's parental

rights or any prior orders were reinstated and that the mother

was mistaken that her parental rights had been restored.

It is fundamental that the reversal of an order upon

appellate review restores the party who prevailed on appeal to

the position that he or she enjoyed prior to entry of the order

appealed from (see Taylor v New York Life Ins. Co., 209 NY 29, 34

[1913]; Doomes v Best Tr. Corp., 126 AD3d 629, 630 [2015]; 5 NY

Jur 2d, Appellate Review § 834; 10A Carmody-Wait 2d § 70:504). 

Contrary to Family Court's statements, this Court's October 2013

order did reinstate the mother's parental rights and restored her

to the position that she was in prior to the erroneous

termination of her parental rights. It appears from the record

that, at such time, the mother had been afforded supervised

visitation with the children once a week. Accordingly, upon the

reinstatement of her parental rights, the mother was, at a

minimum, entitled to the restoration of the visitation that she

was afforded prior to the termination, unless it could be

demonstrated by respondent that there were "'compelling reasons

and substantial evidence that such visitation would be

detrimental or harmful to the child[ren]'s welfare'" (Matter of

Victoria X., 34 AD3d 1117, 1118 [2006], lv denied 8 NY3d 806

been validly taken from the August 2015 orders (see CPLR 5520

[c]; Smith v State of New York, 121 AD3d 1358, 1358 n [2014]).

4 The mother raises no arguments on appeal with respect to

the dismissal of her violation and custody petitions and, as

such, has abandoned any challenges with respect thereto (see

Matter of Lynn TT. v Joseph O., 143 AD3d 1089, 1091 [2016];

Matter of Iyanna KK. [Edward KK.], 141 AD3d 885, 886 [2016]).
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[2007], quoting Matter of Sullivan County Dept. of Social Servs.

v Richard C., 260 AD2d 680, 682 [1999], lv dismissed 93 NY2d 958

[1999]; see Matter of Paige WW. [Charles XX.], 71 AD3d 1200, 1204

[2010]).

Although the mother commenced these proceedings shortly

after this Court's October 2013 order reinstating her parental

rights,5 Family Court improperly imposed upon the mother the

burden of proving that visitation would be in the children's best

interests. Visitation with a noncustodial parent is presumed to

be in a child's best interests (see Matter of Duane FF. [Harley

GG.], 135 AD3d 1093, 1094 [2016], lv denied 27 NY3d 904 [2016];

Matter of Luka OO. [Travis PP.], 114 AD3d 1056, 1057 [2014]). 

Rather than imposing the burden of proof on the mother, Family

Court should have placed the burden on respondent to demonstrate

that visitation would be detrimental or harmful to the children

(see generally Family Ct Act §§ 1030 [c]; 1082 [4]). Together,

Family Court's many procedural missteps and misapplications of

law, including its failure to apply the proper burden of proof

(see Matter of Lonobile v Betkowski, 261 AD2d 829, 829 [1999])

and its reluctance to promptly adjudicate the mother's

applications for visitation over the 20 months in which the

mother's parental rights remained intact, require that the matter

be remitted for a new hearing.

Even if we were to reach the merits of the mother's

petitions, we would still find remittal necessary. Family Court

improperly based its denial of visitation, in part, on the length

of time that had passed since the mother had contact with the

children. However, the separation was not the result of the

mother's lack of interest or effort (cf. Matter of Male Infant

L., 61 NY2d 420, 429 [1984]; Matter of Dickson v Lascaris, 53

5 Although not expressly stated in this Court's October

2013 order, because the mother's parental rights were reinstated

and the children remained in the care and custody of respondent,

the matter should have been restored to Family Court's calendar

immediately after this Court's October 2013 order so that Family

Court could address, among other things, the issue of the

mother's visitation.
-6- 521559 

NY2d 204, 209-210 [1981]; Matter of Sanjivini K., 47 NY2d 374,

381-382 [1979]; Matter of Burghdurf v Rogers, 233 AD2d 713, 714-

715 [1996], lv denied 89 NY2d 810 [1997]). In fact, the mother

has fought to have contact with the children since their

placement in the care and custody of respondent. Regrettably, as

the history recited above reflects, the absence of contact was in

part a consequence of repeated judicial error, starting with the

erroneous termination of the mother's parental rights in

September 2011 and continuing with Family Court's January 2014

directive barring the mother's contact with the children pending

resolution of her petitions6 and the roughly 20 months in which

it took the court to adjudicate the issue of whether the mother

should be afforded any type of contact, whether that be by phone,

electronic means, therapeutic visitation or any other form of

contact.7

Moreover, although Family Court correctly acknowledged that

the best interests of the children were of paramount concern (see

Matter of Paige WW. [Charles XX.], 71 AD3d at 1204; Matter of

Kathleen OO. [Karen OO.], 232 AD2d 784, 786 [1996]), it made no

6 The permanency goal was changed to return to parent

following this Court's October 2013 order. However, Family

Court's January 2014 directive resulted in respondent making no

real efforts toward the then-goal of return to parent, which goal

was later improperly modified by Family Court from return to

parent to free for adoption (Matter of Desirea F. [Angela F.],

136 AD3d at 1076-1077).

7 The Court was advised at oral argument that the first

time that the mother was permitted to speak with the children

since October 2011 was almost five years later in Family Court in

the summer of 2016, when the children apparently appeared

telephonically for the required age-appropriate consultation at

the remittal hearing following this Court's February 2016 order

(Matter of Desirea F. [Angela F.], 136 AD3d at 1076-1077). At

the time of oral argument, Family Court had yet to issue a

determination on that remittal hearing. The Court was further

advised at oral argument that the children and their foster

parents no longer live in Pennsylvania, but now live in Iowa.
-7- 521559 

express finding that supervised visitation, or any other contact,

would be detrimental or harmful to the children's welfare. While

the record contained some evidence that the mother suffered from

medical and/or mental health issues that could impact her

interactions with the children, medical or mental health issues

do not necessarily preclude supervised visitation, therapeutic

visitation or other contact (see generally e.g. Matter of Walter

TT. v Chemung County Dept. of Social Servs., 132 AD3d 1170, 1171

[2015]; Matter of Sean K., 50 AD3d 1220, 1222-1223 [2008]). The

record did not establish that the mother's medical or mental

health issues rose to such a level that an award of supervised

visitation or other contact would endanger the welfare of the

children, particularly given that Family Court considered, upon

the parties' consent, evidence presented in other pending

proceedings relating to two of the mother's other children and

permitted the mother to have supervised visitation with those

other children upon consideration of the same evidence.8 Thus,

even if we were to reach the merits, we would find that the

denial of contact lacked a sound and substantial basis in the

record.

This Court cannot possibly make the required determination

on the record before us. Regrettably, the matter must be

remitted for a new hearing on the issue of whether visitation or

other contact would be detrimental or harmful to the children's

welfare. Given the extraordinary history of this saga, we

further conclude that, upon remittal, this matter, as well as any

other related proceedings, should be assigned to a new judge.

As a final matter, we deny the mother's request for an

order directing that the assigned attorney for the children be

removed and replaced upon remittal. We do, however, urge the

newly assigned judge to ensure that, upon remittal, there is

8 Family Court's June 2015 bench decision also resolved the

petitions relating to two of the mother's other children. The

mother has appealed from the resulting orders and those appeals

are decided herewith (Matter of Angela F. v Gail WW., ___ AD3d

___ [decided herewith]; Matter of Abigail QQ. [Angela F.], ___

AD3d ___ [decided herewith]).
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sufficient and recent attorney-client contact between the

children and the attorney for the children so as to ensure the

protection of the children's interests (see Family Ct Act § 241). 

To the extent that any of the parties' remaining contentions have

not been addressed, we have reviewed them and find them to be

without merit.

Egan Jr., J.P., Lynch, Rose and Aarons, JJ., concur.

ORDERED that the orders are modified, on the law, without

costs, by reversing so much thereof as dismissed the petitions

seeking visitation with the children; matter remitted to the

Family Court of St. Lawrence County for further proceedings not

inconsistent with this Court's decision before a different judge,

and said proceedings are to be commenced within 30 days of the

date of this decision; and, as so modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court