In this case, after the domestic violence incident, child welfare only brought the abuse and neglect case against the abusive father but still wanted the victim mother involved with them
MATTER OF SAPPHIRE W., 2025 NY Slip Op 662 – NY: Appellate Div., 2nd Dept. 2025:
“VENTURA, J.
APPEAL by the nonrespondent mother, in a proceeding pursuant to
Family Court Act article 10, from an order of the Family Court (Robert
D. Hettleman, J.), dated August 31, 2023, and entered in Kings County.
The order, insofar as appealed from, placed the nonrespondent mother
under the supervision of the Administration for Children’s Services and
the Family Court, and directed her to cooperate with the Administration
for Children’s Services in certain respects.
This appeal presents this Court with the opportunity to decide an
issue of first impression in New York involving the rights of
nonrespondent parents in child neglect proceedings, to wit: whether the
Family Court may place a nonrespondent custodial parent under the
supervision of the Administration for Children’s Services (hereinafter
ACS) and the court, and direct the parent to cooperate with ACS in
various ways, in circumstances where the respondent parent resides
elsewhere and the child has not been removed from the nonrespondent
parent’s home. Considering, inter alia, the well-established “interest
of a parent in the companionship, care, custody, and management of his
or her children” (Stanley v. Illinois, 405 US 645, 651)
and the lack of any statutory authority permitting the challenged
directives, we answer this question in the negative. Therefore, we
conclude that, in this case, the Family Court improperly placed the
mother under the supervision of ACS and the court, and directed her to
cooperate with ACS in certain respects.
I. Background of the Proceeding
The father and the mother are the parents of a child born in 2022. In
August 2023, ACS commenced this proceeding pursuant to Family Court Act
article 10 against the father, alleging that he neglected the child by
committing acts of domestic violence against the mother at her home in
the presence of the child. In the petition, ACS asserted that the mother
had previously contacted the police concerning domestic violence
perpetrated against her by the father, and that the police returned to
her home at a later date to conduct a wellness check. After the police
left, the father, who was present in the home while the police were
there, allegedly became physically and verbally aggressive with the
mother, including by calling her names, slapping her, and forcibly
ripping out some of her hair. In response to the mother’s demand that he
leave the home, the father allegedly urinated in a bathtub before
departing. Shortly thereafter, the mother discussed the incident with a
therapist, who reported it to ACS.
On the date ACS filed the petition, the Family Court held an initial
conference. The mother, who was not named as a respondent, appeared at
the conference, while the father did not. During the conference, ACS
advised the court that the father “did not reside in the home” with the
mother and the child, although he “would occasionally sort of show up.”
ACS requested that the court issue a temporary order of protection in
favor of the mother and the child and against the father, while also
seeking the child’s “release[ ]” to the mother’s custody under ACS’s
supervision. The attorney for the child objected to so much of ACS’s
request as sought supervision of the mother, who, by counsel, joined in
the objection. The court advised the mother that she was “not accused of
anything” but nonetheless granted ACS’s request in full. By order dated
August 31, 2023, the court, inter alia, placed the mother under the
supervision of ACS and the court, and directed the mother to cooperate
with ACS in certain respects. Specifically, the court required the
mother to “maintain[ ] contact with ACS, permit[ ] [ACS’s staff members]
to make announced and unannounced visits to the home, and accept[ ] any
reasonable referrals for services.” The mother appeals.
II. The Issue Presented Falls Within the Exception to the Mootness Doctrine and Was Preserved for Our Review
Initially, although we agree with ACS’s contention that the issues
raised on this appeal have been rendered academic, we reject ACS’s
assertion that this appeal should be dismissed on that basis. On January
22, 2024, months after issuing the order appealed from, the Family
Court issued an order of fact-finding and disposition that, among other
things, awarded the mother sole legal and physical custody of the child.
“It is a fundamental principle of our jurisprudence that the power of a
court to declare the law only arises out of, and is limited to,
determining the rights of persons which are actually controverted in a
particular case pending before the tribunal” (C.F. v. New York City Dept. of Health & Mental Hygiene, 191 AD3d 52, 61
[internal quotation marks omitted]). “Under the mootness doctrine, a
court is ordinarily precluded from considering questions which, although
once live, have become moot by passage of time or change in
circumstances” (Matter of Angel S. [Sadetiana J.], 173 AD3d 1188, 1189
[internal quotation marks omitted]). Since the order of fact-finding
and disposition resolved this proceeding and effectively terminated the
directives challenged by the mother (see Family Ct Act § 1088), the issues raised on this appeal have been rendered academic (see Matter of Abbygail G. [Christine Y.—Karen M.], 177 AD3d 878, 880; Matter of Angel S. [Sadetiana J.], 173 AD3d at 1189; Matter of Raven K. [Adam C.], 130 AD3d 622, 624).
Nonetheless, we agree with the mother and the attorney for the child
that the exception to the mootness doctrine applies here. “If academic,
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 nonreviewable” (Matter of Abbygail G. [Christine Y.—Karen M.], 177 AD3d at 880
[internal quotation marks omitted]). In other words, “[t]he exception
to the mootness doctrine permits judicial review where the case presents
a significant issue which is likely to recur and evade review” (Matter of Darcy M. [Gethylee C.], 195 AD3d 719, 720). Specifically,
“[t]he exception to the mootness doctrine is properly applied where
there is `(1) a likelihood of repetition, either between the parties or
among other members of the public; (2) a phenomenon typically evading
review; and (3) a showing of significant or important questions not
previously passed on, i.e., substantial and novel issues'” (Matter of Chang v. Maliq M., 154 AD3d 653, 654, quoting Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715).
Here, the issue presented—whether certain provisions of the Family
Court Act authorize a court in an article 10 proceeding to subject a
nonrespondent custodial parent to supervision by a child protective
agency when the respondent parent resides elsewhere and the child is not
removed from the home—is “capable of repetition” in other cases (Matter of Lucinda R. [Tabitha L.], 85 AD3d 78, 84; see Matter of Carmen R. v. Luis I., 160 AD3d 460, 461).
The Family Court, Kings County, recently considered the issue and
observed that, in article 10 proceedings, ACS regularly seeks “an order
of protection against the respondent, and an order releasing the child
to the non-respondent parent, with ACS supervision,” in circumstances
where “the child [resides] exclusively with the nonrespondent parent
prior to ACS filing a case against the noncustodial, respondent parent” (Matter of Danna T. [Miguel T.], 82 Misc 3d 723, 726 [Fam Ct, Kings County] [internal quotation marks omitted]; see Matter of A.B. [B.F.],
74 Misc 3d 1229[A], 2022 NY Slip Op 50251[U], * 1 [Fam Ct, Oswego
County]). Although the issue was decided against ACS in that case, the
court noted that, in its opinion, the relevant statute “ha[d] been
misunderstood and misapplied in countless cases” (Matter of Danna T. [Miguel T.], 82 Misc 3d at 725).
Further, this appeal involves a phenomenon that will typically evade
appellate review, since the type of temporary ACS supervision at issue
will ordinarily only remain in effect for a limited time period (see Matter of Emmanuel B. [Lynette J.]., 175 AD3d 49, 54; Matter of Elizabeth C. [Omar C.], 156 AD3d 193, 202; Matter of Anthony H. [Karpati], 82 AD3d 1240, 1241).
We note that, contrary to the suggestion of ACS, “[t]he correct
standard is whether the issue `typically’—not `necessarily’—evades
review” (Matter of Crawford v. Ally, 197 AD3d 27, 32, citing Matter of Hearst Corp. v. Clyne, 50 NY2d at 715). The mother’s argument also presents “a substantial and novel issue of statewide importance” (Matter of Elizabeth C. [Omar C.], 156 AD3d at 202), which “has not been the subject of prior appellate review” (Matter of Anthony H. [Karpati], 82 AD3d at 1241; see Cellular Tel. Co. v. Village of Tarrytown, 209 AD2d 57, 64).
Moreover, contrary to ACS’s contention, the mother’s argument is preserved for appellate review (see Matter of Victoria B. [Jonathan M.], 164 AD3d 578, 581).
Under the circumstances presented, the attorney for the child’s
objections to ACS’s proposed directives, which the mother adopted, “were
sufficient to alert [the Family] Court to the relevant question and
[thus] sufficiently preserved the legal issue for appellate review” (Geraci v. Probst, 15 NY3d 336, 342). We therefore reach the merits of this appeal.
III. The Family Court Improperly Imposed Supervision and Cooperation Directives upon the Mother
A. The Plain Text of Family Court Act § 1017 Did Not Authorize the Family Court’s Directives
“[The] Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” (Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366; see Matter of Capruso v. Kubow, 226 AD3d 680, 682).
Stated otherwise, the Family Court may not issue a directive or decide a
particular issue “in the absence of any express grant of authority by
statute” (Matter of Donald QQ. v. Stephanie RR., 198 AD3d 1155, 1157; see Matter of Haber v. Strax, 136 AD3d 911, 913).
Similarly, the Family Court’s “general parens patriae responsibility to
do what is in the best interests of the children . . . cannot create
jurisdiction . . . not provided by statute” (Matter of Zavion O. [Donna O.], 173 AD3d 28, 35 [citation and internal quotation marks omitted]).
Here, although the Family Court did not set forth the statutory basis
for its challenged directives, the parties focus on Family Court Act §§
1017 and 1027(d), disagreeing as to whether these statutes provided the
court with authority to subject the mother to supervision by ACS and
the court, or authority to require her to cooperate with ACS in various
ways. As a result, we consider whether those statutes expressly
authorized the court to issue those directives (see Matter of Zavion O. [Donna O.], 173 AD3d at 35; Matter of Haber v. Strax, 136 AD3d at 913).
“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Patrolmen’s Benevolent Assn. of City of N.Y. v. City of New York, 41 NY2d 205, 208).
“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 thereto” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583; see Matter of Lisa T. v. King E. T., 30 NY3d 548, 552).
“[W]here the statutory language is clear and unambiguous, the court
should construe it so as to give effect to the plain meaning of the
words used” (Matter of D.L. v. S.B., 39 NY3d 81, 87
[internal quotation marks omitted]). However, “[a]n examination of the
legislative history is proper `where the language is ambiguous or where a
literal construction would lead to absurd or unreasonable consequences
that are contrary to the purpose of the enactment'” (Saul v. Cahan, 153 AD3d 951, 952, quoting Matter of Auerbach v. Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198, 204).
Indeed, “[a]ny statute or regulation . . . must be interpreted and
enforced in a reasonable . . . manner in accordance with its manifest
intent and purpose” (Matter of Sabot v. Lavine, 42 NY2d 1068, 1069).
Thus, “`[a] court should avoid a statutory interpretation rendering the
provision meaningless or defeating its apparent purpose'” (Matter of Carver v. Nassau County Interim Fin. Auth., 142 AD3d 1003, 1008, quoting Miglino v. Bally Total Fitness of Greater N.Y., Inc., 92 AD3d 148, 157, affd 20 NY3d 342).
“Finally, it is well settled that a statute must be construed as a
whole and that its various sections must be considered with reference to
one another” (Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120).
“Family Court Act § 1017 sets out the steps to be followed in
determining the appropriate placement of a child when the child is
initially removed from his or her home” (Matter of Paige G. [Katie P.], 119 AD3d 683, 684; see Matter of Lucinda R. [Tabitha L.], 85 AD3d at 86-87).
Specifically, upon “determin[ing] that a child must be removed from his
or her home” and securing a report from “the local commissioner of
social services,” the court must consider “whether there is a
non-respondent parent, relative or suitable person with whom such child
may appropriately reside” (Family Ct Act § 1017[1][a], [c][i]; see Matter of Timothy GG. [Meriah GG.], 163 AD3d 1065, 1068; Matter of Paige G. [Katie P.], 119 AD3d at 684).
Upon finding “that the child may appropriately reside with a
non-respondent parent,” the court may “temporarily release the child
directly to such non-respondent parent” so long as he or she “submits to
the jurisdiction of the court with respect to the child” (Family Ct Act
§ 1017[2][a][ii]; [3]; see Matter of Emmanuel B. [Lynette J.], 175 AD3d at 59; Matter of Angel S. [Sadetiana J.], 173 AD3d at 1188).
The order releasing the child to the nonrespondent parent “shall set
forth the terms and conditions” that apply, which, as relevant to this
appeal, “may include . . . a direction for [the nonrespondent parent] to
cooperate in making the child available . . . for appointments with and
visits by the child protective agency, including visits in the home and
in-person contact with the child protective agency” (Family Ct Act §
1017[3]; see Matter of D.L. v. S.B., 39 NY3d at 90-91).
Contrary to ACS’s contention, Family Court Act § 1017 did not provide
the Family Court with authority to subject the mother to supervision by
ACS and the court, or to require her to “cooperate” with ACS in the
manner directed in the order appealed from (see Matter of Danna T. [Miguel T.], 82 Misc 3d at 726-728).
Considering the “plain meaning” of the text and construing the
statute’s “various sections . . . with reference to one another” (Matter of Jefry H., 102 AD3d 132, 136
[internal quotation marks omitted]), the relevant provisions of Family
Court Act § 1017 apply only when a court orders the removal of a child
from his or her home and releases the child to the home of a
nonrespondent and “noncustodial parent” (Matter of D.L. v. S.B., 39 NY3d at 91).
By the plain language of the statutory text, the provisions requiring
the nonrespondent parent, inter alia, to “submit[ ] to the jurisdiction
of the court with respect to the child” and “to cooperate” with “the
child protective agency” in various ways (Family Ct Act § 1017[3]) are
only triggered “[a]fter [the] child is removed from the home” (Matter of Emmanuel B. [Lynette J.], 175 AD3d at 59; see Matter of Paige G. [Katie P.], 119 AD3d at 684).
Here, since the court never “determin[ed] that [the] child must be
removed from . . . her home” (Family Ct Act § 1017[1]), it did not have
authority pursuant to Family Court Act § 1017 to impose the challenged
directives upon the mother, no matter how “well-intended” the court’s
“goals” may have been (Matter of Zavion O. [Donna O.], 173 AD3d at 35).
B. The Legislative History Supports the Conclusion that the Family Court’s Directives Were Improper
Although we need not review the legislative history of Family Court
Act § 1017 because the statutory text is unambiguous and a “literal
construction” thereof does not “lead to absurd or unreasonable
consequences that are contrary to the purpose of the [statute]” (Saul v. Cahan, 153 AD3d at 952 [internal quotation marks omitted]), the legislative history nonetheless supports our conclusion.
Since “the institution of the family is deeply rooted in this
Nation’s history and tradition,” and it is the vehicle through which “we
inculcate and pass down many of our most cherished values, moral and
cultural” (Moore v. East Cleveland, 431 US 494, 503), it has long been recognized “that freedom of personal choice in matters of family life is a fundamental liberty interest” (Santosky v. Kramer, 455 US 745, 753).
Indeed, “a parent’s interest `in the care, custody, and control of
their children . . . is perhaps the oldest of the fundamental liberty
interests'” (Matter of F.W. [Monroe W.], 183 AD3d 276, 280, quoting Troxel v. Granville, 530 US 57, 65; see Matter of Elizabeth C. [Omar C.], 156 AD3d at 203). “Similarly, . . . children have a parallel right to be reared by their parent” (Matter of F.W. [Monroe W.], 183 AD3d at 280
[alteration and internal quotation marks omitted]). Nonetheless, a
parent’s “interest in . . . family integrity . . . is counterbalanced by
the compelling governmental interest in the protection of minor
children, particularly in circumstances where the protection is
considered necessary as against the parents themselves” (Wilkinson v. Russell, 182 F3d 89, 104 [2d Cir] [internal quotation marks omitted]).
Against those background principles, article 10 of the Family Court
Act, which includes Family Court Act § 1017 and which pertains to child
protective proceedings, “erects a careful bulwark against unwarranted
state intervention into private family life, for which its drafters had a
deep concern” (Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 284
[internal quotation marks omitted]). Therefore, “the child protective
statutes of Family Court Act article 10 have a twofold purpose: ` to
establish procedures to help protect children from injury or
mistreatment and to help safeguard their physical, mental, and emotional
well-being,'” while also “`provid[ing] . . . 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'” (Matter of Elizabeth C. [Omar C.], 156 AD3d at 204,
quoting Family Ct Act § 1011). Stated more succinctly, the “purpose of
article 10 [is] to provide a mechanism to protect children while
preserving parental rights” (id. at 209).
The competing purposes of article 10 make clear that the Legislature
sought to strike a balance between protecting children through “state
intervention” while simultaneously shielding “private family life” from
such intervention when it is “unwarranted” (Matter of Jamie J. [Michelle E.C.], 30 NY3d at 284 [internal quotation marks omitted]; see Matter of Elizabeth C. [Omar C.], 156 AD3d at 204).
This makes sense, among other reasons, because a child protective
agency’s involvement with a family may itself have a negative impact on
the parent or the child, even if it may be necessary in some
circumstances to prevent or repair the effects of abuse or neglect. An
ACS investigation, by its nature, intrudes upon the private lives of the
parent and child to one degree or another (see Matter of Isabela P. [Jacob P.], 195 AD3d 722, 723; Matter of Anthony JJ. v. Joanna KK., 182 AD3d 743, 744) and, at least on occasion, may be traumatic for both the child and the parent (see Matter of Duran v. Contreras, 227 AD3d 1068, 1070; Matter of Daniel D. [Diana T.], 183 AD3d 727, 728).
Indeed, in testimony to a New York City Council committee in 2020, the
then Commissioner of ACS acknowledged that, while the agency’s work in
responding to reports of abuse and neglect “may be an essential lifeline
for children when they are being seriously harmed or at imminent risk
of harm, the child protective response and investigation by its nature
can be intrusive and traumatic for families” (Written Testimony of David
A. Hansell, NY City Council, Comm on General Welfare, Oct. 28, 2020, at
6, available at
https://www.nyc.gov/assets/acs/pdf/testimony/2020/GWCommitteeHearing.pdf
[last accessed Dec. 27, 2024]). Considering the intrusive and
potentially traumatic impact of ACS involvement in a family’s life, the
disproportionate involvement of Black and Hispanic children in the child
welfare system cannot be ignored (see id. at 2-6).
In any event, in furtherance of the goal of “safeguard[ing] the
[child’s] physical, mental and emotional well-being,” Family Court Act §
1017 “help[s] the child . . . maintain[ ] family ties and reduc[es] the
trauma of removal” by placing him or her with a nonrespondent parent or
“suitable relative” (Matter of Harriet U. v. Sullivan County Dept. of Social Servs., 224 AD2d 910, 911; see Matter of Richard HH. v. Saratoga County Dept. of Social Servs., 163 AD3d 1082, 1083).
Notably, in 2015, the Legislature enacted sweeping legislation that
amended various statutes, including Family Court Act § 1017, in order to
provide nonrespondent parents with “greater participation in abuse or
neglect proceedings,” while “also expand[ing] the options available to
Family Court judges” when “craft[ing] appropriate orders respecting the
rights of non-respondent parents [and] assuring the safety and well
being of children who are the subjects of the proceedings” (Assembly
Memo in Support, Bill Jacket, L 2015, ch 567 at 7). Among other things,
the legislation “clarifie[d] the language of Family Court Act § 1017 by
referring specifically to `non-respondent parent, relative or suitable
person’ as potential resources a court may consider after determining
that a child must be removed from his or her home” (id. at 8).
Here, considering that article 10 serves, in part, to enact
procedures preventing unwarranted state intervention in family life, and
that the relevant provisions of Family Court Act § 1017, in particular,
serve to help the child maintain family ties while respecting the
rights of parents (see Matter of Jamie J. [Michelle E.C.], 30 NY3d at 284; Matter of Harriet U. v. Sullivan County Dept. of Social Servs., 224 AD2d at 911;
Assembly Memo in Support, Bill Jacket, L 2015, ch 567 at 7), ACS’s
position is necessarily at odds with the statute’s legislative purpose.
The challenged directives constitute precisely the type of state
intervention that the Legislature sought to avoid in circumstances when
it is not warranted, particularly considering the impact ACS involvement
can have on a child or a parent. It is also unclear how a nonrespondent
custodial parent’s rights would be respected by placing his or her
parenting of a child under ACS supervision. Nor does interpreting Family
Court Act § 1017 in a manner that permits ACS supervision of a
nonrespondent custodial parent in the circumstances presented help a
child to maintain family ties, since the child is necessarily already in
the custody of that parent in such circumstances.
C. Family Court Act § 1027(d) Did Not Authorize the Challenged Directives
Further, the relevant provisions of Family Court Act § 1017 did not
apply indirectly to the circumstances presented by way of the reference
within Family Court Act § 1027(d) to Family Court Act § 1017(2)(a)(ii).
Pursuant to Family Court Act § 1027(a)(i), (ii), and (iii), a hearing
to determine “whether the child’s interests require protection” must be
held, or may be held, depending upon the circumstances. “Upon such
hearing, the court may, for good cause shown, release the child to his
or her parent or other person legally responsible for his or her care,
pending a final order of disposition, in accord with [Family Court Act §
1017(2)(a)(ii)]” (id. § 1027[d]).
Contrary to ACS’s contention, even assuming the initial conference at
issue constituted such a hearing, Family Court Act § 1027(d) does not
provide an independent basis for a court to place a nonrespondent
custodial parent under ACS supervision when the child has not been
removed from that parent’s home and the respondent parent resides
elsewhere. Instead, by expressly referring to a subparagraph of Family
Court Act § 1017, which, as previously stated, only applies to a
nonrespondent parent in such circumstances “[a]fter [the] child is
removed from the home” (Matter of Emmanuel B. [Lynette J.], 175 AD3d at 59),
Family Court Act § 1027(d) similarly only applies in such
circumstances. This is not only the plain meaning of the statutory text,
but it is also consistent with the Legislature’s recognition that the
reference to Family Court Act § 1017 within Family Court Act § 1027(d)
serves to establish the former statute as the “authority” for permitting
a court to “release a child to his or her parent” during the pendency
of an article 10 proceeding (Assembly Memo in Support, Bill Jacket, L
2015, ch 567 at 9).
D. This Court’s Decision in Matter of Elizabeth C. (Omar C.) Does Not Support ACS’s Position
This Court’s determination in Matter of Elizabeth C. (Omar C.) (156 AD3d 193)
does not warrant a different result. In that case, ACS accused the
respondent father, who resided in a home with his children and the
nonrespondent mother, of abusing and neglecting the children (see id.
at 196-197). The father sought a hearing pursuant to Family Court Act §
1028 to contest a temporary order of protection issued on the same day
that ACS filed the petitions, which required him to stay away from the
family home (see Matter of Elizabeth C. [Omar C.], 156 AD3d at 196-197).
Although Family Court Act § 1028 sets forth standards for conducting
hearings to determine whether to “return[ ] [a] child” after his or her
“removal . . . from the home” (id. § 1028[a], [b]), the father
asserted “that his loss of the physical care and custody of the children
incidental to his exclusion from the family home was the functional
equivalent of a removal of the children, thereby entitling him to the
heightened due process afforded by a section 1028 hearing” (Matter of Elizabeth C. [Omar C.], 156 AD3d at 197).
The Family Court disagreed, concluding that such a hearing is “only
appropriate where . . . children have been physically removed from their
residence” (id. at 198). On appeal, this Court reversed (see id.
at 205-210). While recognizing “that the statutes within part 2” of
article 10 of the Family Court Act “generally employ the term `removal’
in the context of physically removing the child from his or her home,”
this Court also noted that there was “no language in any of the statutes
[that] expressly limit[ed] the due process protections they contain . .
. only [to] situations involving . . . physical removal” (id. at
205-206). “Since the removal of a child from the family home and the
exclusion of a parent from that same home require equal showings of
imminent risk, and both result in similar infringements on the
constitutionally protected parent-child relationship,” this Court
“conclud[ed] that both trigger the same due process protections” (id. at 207).
Contrary to ACS’s contention, our holding in that case does not lead
to the conclusion that, in this case, the child was “removed” for
purposes of Family Court Act § 1017, thereby permitting the Family Court
to impose the challenged directives upon the mother. In Matter of Elizabeth C. (Omar C.),
this Court was focused on a different question than the one presented
here: whether a custodial parent’s exclusion from the family home
triggers the hearing and due process requirements set forth in Family
Court Act § 1028, even when the child is still residing at, and has not
been removed from, the home. In this case, the question is instead
whether Family Court Act § 1017—the relevant provisions of which require
a noncustodial nonrespondent parent to, among other things, cooperate
with a child protective agency upon assuming temporary custody after the
child has been removed from the child’s home—can be utilized to impose
the type of directives at issue upon a custodial nonrespondent parent
when an order of protection has been issued against a respondent parent
who resides elsewhere, and when the child has not been removed from the
nonrespondent parent’s home. Notably, in Matter of Elizabeth C. (Omar C.),
this Court did not state that the circumstances presented involved an
actual “removal” of the child, as that term is utilized in Family Court
Act § 1028. Instead, we reasoned that
“[t]he issuance of a full stay away order of protection excluding the
father from the family home . . . [wa]s for all practical purposes akin
to a physical removal of the children from his care and custody, . . .
produc[ing] the same cessation in his contact with the children, and the
same severance of his relationship with them, that an order removing
the children from the family residence would bring about,”
thereby involving the “same constitutional considerations” (Matter of Elizabeth C. [Omar C.], 156 AD3d at 208-209).
IV. The Issue of the Due Process Protections Available to Respondent Parents Is Not Before Us
To be clear, our conclusion that Family Court Act §§ 1017 and 1027(d)
did not authorize the Family Court to impose the challenged directives
upon the mother under the circumstances presented should not be
construed as indicating that certain hearing and due process provisions
of Family Court Act article 10 were unavailable to the father. That
issue is not before us on this appeal, and we do not decide it.
V. Conclusion
Accordingly, the Family Court improperly placed the mother under the
supervision of ACS and the court, and directed her to cooperate with ACS
in certain respects.
In light of our determination, we need not reach the remaining contentions of the parties and amici curiae.
Accordingly, the order is reversed insofar as appealed from, on the law.
CHAMBERS, J.P., BRATHWAITE NELSON and DOWLING, JJ., concur.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements.”