This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 118 

In the Matter of Jamie J.

Wayne County Department of Social 

Services,

 Respondent;

Michelle E.C.,

 Appellant.

Katharine F. Woods, for appellant.

Gary Lee Bennett, for respondent.

James S. Hinman, for interested parties James R. et al.

Sean D. Lair, for the child.

Lawyers for Children, Inc. et al., amici curiae.

WILSON, J.:

This case presents the novel question of whether Family

Court retains subject matter jurisdiction to conduct a permanency

hearing pursuant to Family Court Act (FCA) article 10-A once the

underlying neglect petition brought under article 10 of that

statute has been dismissed for failure to prove neglect. We hold

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that it does not. Instead, the dismissal of a neglect petition

terminates Family Court's jurisdiction.

 * * *

As Chief Judge Kaye explained, 

"New York's foster care scheme is built

around several fundamental social policy

choices that have been explicitly declared by

the Legislature and are binding on this Court

. . . A biological parent has a right to the

care and custody of a child, superior to that

of others, unless the parent has abandoned

that right or is proven unfit to assume the

duties and privileges of parenthood, even

though the State perhaps could find 'better'

parents. A child is not the parent's

property, but neither is a child the property

of the State. Looking to the child's rights

as well as the parents' rights to bring up

their own children, the Legislature has found

and declared that a child's need to grow up

with a normal family life in a permanent home

is ordinarily best met in the child's natural

home" (Matter of Michael B., 80 NY2d 299,

308-309 [1992] [internal quotation marks and

citations omitted]).1 

1 According to amici, those legislative findings are further

substantiated by amici's experience and by recent works of social

science (see e.g. Kristin Turney and Christopher Wildeman, Mental

and Physical Health of Children in Foster Care, 138 Pediatrics 5

[2016] [documenting "vast" differences between the physical and

mental health of those children placed in foster care and those

in general population, many of which persist even after adjusting

for child and household characteristics]; Diane Mastein, Sania

Metzger, and Jane Golden, Foster Care and Disconnected Youth: A

Way Forward for New York [2013], available at

http://www.fysany.org/reports [accessed Oct. 25, 2017] [finding

young adults who age out of foster care face particularly poor

chances of achieving educational objectives, gaining employment,

or developing strong family relations and stable housing

arrangements]; Joseph J. Doyle Jr., Child Protection and Child

Outcomes: Measuring the Effects of Foster Care, 97 American

Economic Review 5:1583 [2007] [suggesting that children on the

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Those rights are among our oldest and most fundamental and are

not only provided by statute, but also guaranteed to parents and

children by our state and federal constitutions (Matter of Brooke

S.B. v Elizabeth A.C.C., 28 NY3d 1, 26 [2016]; Matter of Marie

B., 62 NY2d 352, 358-359, 465 [1984]; Santosky v Kramer, 455 US

745, 760 [1982]; Bennett v Jeffreys, 40 NY2d 543, 546 [1976];

Stanley v Illinois, 405 US 645, 651 [1972] [collecting cases]).

Here, the rights at issue are those of the subject

child, Jamie J., and her mother, Michelle E.C. Jamie J. was born

in November 2014. A week later, at the request of the Wayne

County Department of Social Services (the Department), Family

Court directed her temporary removal from Michelle E.C.'s custody

pursuant to an ex parte pre-petition order under FCA § 1022.2

Four days after that, the Department filed its FCA article 10

neglect petition. More than a year later, on the eve of the

fact-finding hearing held to determine whether it could carry its

burden to prove neglect, the Department moved to amend its

petition to conform the pleadings with the proof. Family Court

denied that eleventh-hour motion as unfairly prejudicial to

Michelle E.C. and to the attorney for Jamie J. After hearing

evidence, Family Court found that the Department failed to prove

neglect, and therefore dismissed the petition. The Department

margin of placement tend to have better outcomes when they remain

at home]).

2 Jamie J.'s father's parental rights have subsequently been

terminated upon consent.

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did not appeal that decision.

Family Court, however, did not release Jamie J. into

her mother's custody when it dismissed the article 10 neglect

petition. Instead, at the Department's insistence and over

Michelle E.C.'s objection, it held a second permanency hearing,

which had been scheduled as a matter of course during the

statutorily required first permanency hearing in the summer of

2015. Family Court and the Department contended that, even

though the Department had failed to prove any legal basis to

remove Jamie J. from her mother, article 10-A of the FCA gave

Family Court continuing jurisdiction over Jamie J. and entitled

it to continue her placement in foster care. 

Family Court held the second permanency hearing on

January 19, 2016. There, Michelle E.C. argued, as she does here,

that the dismissal of the neglect proceeding ended Family Court's

subject matter jurisdiction and should have required her

daughter's immediate return. Solely to expedite her appeal of

that issue, Michelle E.C. consented to a second permanency

hearing order denying her motion to dismiss the proceeding and

continuing Jamie J.'s placement in foster care. The Appellate

Division, with two Justices dissenting, affirmed the second

permanency hearing order (145 AD3d 127 [4th Dept 2016]) and

Michelle E.C. appealed that decision as of right under CPLR 5601

(a). Her appeal presents a straightforward question of statutory

interpretation: does FCA article 10-A provide an independent

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grant of continuing jurisdiction that survives the dismissal of

the underlying article 10 neglect petition?

Before turning to that question, we first consider

whether mootness and preservation issues prevent us from reaching

it. During the pendency of this appeal, the second permanency

hearing order was superseded by a third, a fourth permanency

hearing was scheduled, a proceeding to terminate Michelle E.C.'s

parental rights was commenced and stayed pending the result of

this appeal, and a second neglect petition was filed. The

Department argues this appeal has been rendered moot by those

occurrences. However, none of them resolved the conflict between

the parties, and each permanency hearing -- docketed under the

first neglect petition -- remains subject to the same

jurisdictional objection as its predecessor (see Matter of New

York State v Michael M., 24 NY3d 649, 657 [2014]). Moreover,

even if the appeal were moot, the exception to that doctrine

would plainly apply (see generally Matter of Hearst Corp. v

Clyne, 50 NY2d 707, 714-715 [1980]). As to preservation, the

jurisdictional objection, which may be raised at any time and may

not be waived (Lacks v Lacks, 41 NY2d 71, 75 [1976]), was

preserved in Michelle E.C.'s letter to Family Court, through her

proposed order to show cause, and at the second permanency

hearing. Her eventual consent to the second permanency order was

expressly understood by all parties and by the court as a means

of expediting appellate review, not a waiver of the alleged

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defect. Finally, her due process argument is properly

apprehended not as a stand-alone challenge requiring notice to

the Attorney-General, but as an invocation, in service of her

jurisdictional challenge, of the canon of constitutional

avoidance: that is, we should construe the statute, if possible,

to avoid the due process infirmity to which she points (see

Matter of Jacob, 86 NY2d 651, 668 n 5 [1995]). On that basis, we

proceed to the heart of the parties' disagreement: the interplay

between FCA articles 10 (§§ 1011-1085) and 10-A (§§ 1086-1090-a).

Article 10, titled "Child Protective Proceedings," is

designed to "establish procedures to help protect children from

injury or mistreatment and to help safeguard their physical,

mental, and emotional well-being" and "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 [or her] needs are properly met" (FCA § 1011). A

child is "neglected" if that child's "physical, mental or

emotional condition has been impaired or is in imminent danger of

becoming impaired as a result of the failure of [a] parent or

other person legally responsible for his [or her] care to

exercise a minimum degree of care" (id. § 1012 [f] [i]).

An article 10 proceeding is commenced by the filing of

a neglect and/or abuse petition by the relevant child protective

agency or another person (id. §§ 1031 [a], 1032). However, even

before a petition is filed, Family Court may temporarily remove a

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child who, inter alia, "appears so to suffer from the abuse or

neglect of his or her parent or other person legally responsible

for his or her care that his or her immediate removal is

necessary to avoid imminent danger to the child's life or health"

and if there is not enough time to hold a preliminary

post-petition hearing (id. § 1022 [a] [i]). In making this

determination, Family Court "shall consider and determine in its

order whether continuation in the child's home would be contrary

to the best interests of the child" (id. § 1022 [a] [iii]). It

must also determine that "reasonable efforts were made prior to

the date of application for the order directing such temporary

removal to prevent or eliminate the need for removal" or that

"the lack of such efforts was appropriate under the

circumstances" (id.). If a child is removed under this section,

a neglect petition must be filed within three days, except for

good cause shown, and a permanency hearing scheduled (id. §§ 1022

[b]; 1027 [h]). 

For that neglect petition to be sustained, the child

protective agency must prove neglect by a preponderance of the

competent, material, and relevant evidence (id. §§ 1046 [b]; 1051

[a]). If the petition contains allegations that do not conform

to the proof of neglect, Family Court may amend the petition

provided the parent retains reasonable time to prepare an answer

to the amended allegations (id. § 1051 [b]). If the agency

carries its burden, Family Court must sustain the petition and

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hold a dispositional hearing, at the conclusion of which it may,

inter alia, suspend judgment, release the child to parental

custody under an order of supervision, enter an order of

protection, or place the neglected child in foster care (id. §§

1052-1057). If the agency fails to carry its burden, Family

Court must dismiss the petition (id. § 1051 [c]).

Article 10-A, "Permanency Hearings for Children Placed

Out of Their Homes," exists "to provide children placed out of

their homes timely and effective judicial review that promotes

permanency, safety and well-being in their lives" (id. § 1086). 

Enacted in 2005, it establishes a system of "permanency hearings"

for children who have been removed from parental custody. Prior

to each hearing, scheduled at six-month intervals beginning at

the expiration of an initial eight-month window (id. § 1089 [a]

[i] [2]), the child protective agency proffers a sworn report

that recommends a "permanency goal" for the child, which may be

reunification with the parent, adoption, or another goal (id. §§

1087 [e]; 1089 [c]). At the conclusion of each hearing, Family

Court enters an order of disposition, schedules a subsequent

hearing, and may also consider whether the permanency goal should

be approved or modified (id. § 1089 [d]). Those determinations

must be made "in accordance with the best interests and safety of

the child, including whether the child would be at risk of abuse

or neglect if returned to the parent" (id.). Regardless of the

determination, once a child has been placed in foster care

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pursuant to certain sections of the Social Services Law or of FCA

articles 10 and 10-C (Destitute Children), "the case shall remain

on the court's calendar and the court shall maintain jurisdiction

over the case until the child is discharged from placement and

all orders regarding supervision, protection or services have

expired" (id. § 1088). 

Here, the Department seizes on a hyperliteral reading

of section 1088, divorced from all context, to argue that Family

Court's pre-petition placement of Jamie J. under section 1022

triggered a continuing grant of jurisdiction that survives the

eventual dismissal of the neglect petition. In other words, even

if the Family Court removes a child who has not been neglected or

abused, it has jurisdiction to continue that child's placement in

foster care until and unless it decides otherwise. Section

1088's place in the overall statutory scheme, the legislative

history of article 10-A, and the dictates of parents' and

children's constitutional rights to remain together compel the

opposite conclusion: Family Court's jurisdiction terminates upon

dismissal of the original neglect or abuse petition. 

Section 1088 and article 10-A must be construed not in

isolation, but (as the "-A" implies) together with the other

provisions of the FCA on which their triggering facially depends

(see id.; Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]

[courts should not adopt "vacuum-like" readings of statutes in

"isolation with absolute literalness" if such interpretation is

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"contrary to the purpose and intent of the underlying statutory

scheme and would conflict with other operative features of the

statute's core overview procedures"]). Article 10 erects a

careful bulwark against "unwarranted state intervention into

private family life," for which its drafters had a deep concern

(Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]; see FCA § 1011),

and is particularly adamant that reasonable efforts be made to

prevent the need for the removal of a child (id. § 1052 [b] [i]

[A]). Neglect findings cannot be casually issued, but require

proof of actual or imminent harm to the child as a result of a

parent's failure to exercise a minimum degree of care (id. § 1012

[f]). "This prerequisite . . . ensures that the Family Court, in

deciding whether to authorize state intervention, will focus on

serious harm or potential harm to the child, not just on what

might be deemed undesirable parental behavior. 'Imminent danger'

. . . must be near or impending, not merely possible" (Nicholson,

3 NY3d at 369).

As the dissenting Appellate Division justices correctly

noted, adopting the Department's interpretation of section 1088

would permit a temporary order issued in an ex parte proceeding

to provide an end-run around the protections of article 10. 

Permanency hearing determinations are based not on the elevated

"imminent harm" standard of article 10, but "in accordance with

the best interests and safety of the child" under article 10-A

(FCA § 1089 [d]). Allowing a separate jurisdictional expressway

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for the placement of a child to substitute for the manner in

which article 10 expects that threshold determination to be

reached would subvert the statutory scheme.3

As we held in Matter of Tammie Z., "if abuse or neglect

is not proved, the court must dismiss the petition . . . at which

time the child is returned to the parents" (66 NY2d 1, 4-5

[1985]). Nothing in the legislative history of article 10-A

suggests that its drafters intended to overturn the

long-established rule, promulgated by pre-2005 decisions of this

Court and of the Appellate Division, that the dismissal of a

neglect petition divests Family Court of jurisdiction to issue

further orders or impose additional conditions on a child's

release (see id.; Matter of Edwin SS., 302 AD2d 754 [3d Dept

2003]; Matter of Amanda SS., 284 AD2d 588 [3d Dept 2001]; Matter

3 The Department's interpretation would create a further anomaly:

according to the Department, Family Court's continuing

jurisdiction under article 10-A turns on the fortuity of whether

the neglect petition is adjudicated before or after the

statutorily required first permanency hearing. Under that

interpretation, Family Court has continuing jurisdiction here

only because it failed to hold the fact-finding hearing for more

than a year after removal; had it held that hearing during the

first seven months following Jamie J.'s removal, the Department

concedes no continuing jurisdiction would exist under its

interpretation of section 1088. Having the court's jurisdiction

and a family's welfare turn on the vagaries of a court's

congested calendar would be not only arbitrary and unlikely to

comport with legislative intent, but also out of step with our

precedents (see Matter of Sanjivani K., 47 NY2d 374, 381 [1979]

[holding a neglect finding could not be based on a prolonged

separation when that separation was due to the slow pace of

litigation commenced by the child protective agency]). 

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of Brandon C., 237 AD2d 821 [3d Dept 1997]; Matter of Melissa B.,

225 AD2d 452 [1st Dept 1996]; Matter of Anthony YY., 202 AD2d 740

[3d Dept 1994]; Matter of Maria L., 152 AD2d 466 [1st Dept 1989];

Matter of Rasha B., 139 AD2d 962 [4th Dept 1988]); Matter of Dina

V., 86 AD2d 875 [2d Dept 1982]; see also Matter of Adoption of

L., 61 NY2d 420, 427 [1984] ["For once it is found that the

parent is fit . . . the inquiry ends and the natural parent may

not be deprived of the custody of his or her child"]). 

Instead, that history demonstrates that the drafters

intended only to correct a technical issue that plagued article

10 and threatened the State's continued access to federal funding

under Title IV of the Social Security Act: Family Court's need to

constantly reassert jurisdiction after a child had been

determined to be the victim of neglect or abuse. As the

Sponsor's Memorandum noted, under then-current law,

"After the initial finding of abuse or

neglect, even where the child is placed in

foster care and orders are issued regarding

the respondent parents, the Court's

jurisdiction over the parties ends with the

order of disposition. Any other action

necessary to pursue return of the child home,

including holding permanency hearings for

court review of the permanency plan for the

child, requires the filing of a new petition

and delay occasioned by the calendaring of

that petition . . . [S]ervice upon the

respondents must be effected for each new

petition before the Court may address the

gravamen of the petition, although the Court

previously established jurisdiction over

those parties at the initiation of the

original proceeding" (NY Sponsors Memorandum,

Statement in Support of 2005 SB S5805

[2005]).

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That technical fix served a practical goal: to "reduce by months

the time a child spends in foster care" (id.). Far from

accomplishing this goal, the Department's interpretation of

section 1088 would instead indefinitely prolong a child's

placement outside the home.

Finally, the state intrusion into family matters

licensed by the Department's interpretation of section 1088 would

infringe the constitutional rights of both parents and children. 

As Justice Marshall explained, "[w]e have little doubt that the

Due Process Clause would be offended if a State were to attempt

to force the breakup of a natural family, over the objections of

the parents and their children, without some showing of unfitness

and for the sole reason that to do so was thought to be in the

children's best interest" (Quilloin v Walcott, 434 US 246, 255

[1978] [citations omitted]). Sensitive to that concern, this

Court has provided a list of the constitutionally permissible

showings of "overriding necessity" that would justify the removal

of a child from a parent or parents (Matter of Marie B., 62 NY2d

at 358). That list includes "abandonment, surrender, persisting

neglect, unfitness or other like behavior evincing utter

indifference and irresponsibility to the child's well-being" --

and excludes the child's best interests (id.). Here, application

of the canon of constitutional avoidance leads us to reject the

Department's interpretation of section 1088 as providing Family

Court jurisdiction when the Department has failed to prove

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neglect or abuse. 

Taken together, those arguments from the statutory

scheme, legislative history, and canon of constitutional

avoidance demonstrate that Family Court cannot continue with an

article 10-A permanency hearing once it has dismissed the

underlying article 10 neglect petition. Accordingly, we hold

that the dismissal of a neglect petition operates to discharge a

child from placement, terminate all orders regarding supervision,

protection or services docketed thereunder, and extinguish the

court's jurisdiction over the matter.

That result harms neither Jamie J. nor future children

in equally tragic circumstances. As to Jamie J., the Department

remains free to take steps to place her in foster care, if

warranted, including pursuing a section 1027 order under the

second neglect petition. As to future children, the Department

and those children's attorneys remain free to take all the steps

the petitioners abjured or belatedly pursued here, including

moving more quickly to conform the pleadings to the proof,

appealing the petition's dismissal, or filing an additional

petition.

Accordingly, the Appellate Division order should be

reversed, without costs, and the January 26, 2016 permanency

order vacated.

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* * * * * * * * * * * * * * * * *

Order reversed, without costs, and the January 26, 2016

permanency order vacated. Opinion by Judge Wilson. Chief Judge

DiFiore and Judges Rivera, Stein, Fahey, Garcia and Feinman

concur. 

Decided November 20, 2017

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