Patricia HH. v. Laura II.

OPINION OF THE COURT Mikoll, J. P. The issue presented on this appeal concerns the authority of Family Court in ordering respondent Chemung County Department of Social Services (hereinafter DSS) to commence a termination of parental rights proceeding intended to free a child for adoption by the unrelated person with whom the child was placed by Family Court. In January 1991, DSS commenced a neglect proceeding pursuant to Family Court Act article 10 against respondents Laura II. and Mark II. (hereinafter collectively referred to as respondents) alleging that they had neglected their son, William (born in August 1990). Petitioner, who is a friend of William’s family, commenced a proceeding pursuant to Family Court Act article 6 seeking custody of William. By order entered February 1, 1991, Family Court granted petitioner and her spouse temporary legal and physical custody of William pending further hearings on the neglect petition (see, Family Ct Act § 1027), and DSS was granted an order of supervision (see, Family Ct Act § 256). Respondents thereafter consented to a finding of neglect and, apparently, to the placement of William with petitioner and her spouse. At the conclusion of the dispositional phase of the proceedings, Family Court ordered that custody of William continue with petitioner and her spouse for an additional period of up to one year (see, Family Ct Act § 1052 [a] [iii]; § 1055 [a], [b] [i]). Additionally, Family Court ordered that DSS’ order of supervision remain in effect for the same period of time and, based upon DSS’ recommendations, imposed certain conditions upon respondents. Family Court subsequently granted orders extending both William’s placement with petitioner and her spouse and DSS’ order of supervision. In October 1992, petitioner commenced the instant proceeding seeking an order permitting her to commence a perma [117] nent neglect proceeding against respondents or, in the alternative, directing DSS to do so. Family Court granted petitioner’s application and ordered, inter alia, that DSS institute a proceeding pursuant to Family Court Act § 1055 (d)1 to free William for adoption. This appeal by DSS followed.2 The issue involved here was recently addressed by the Second Department in Matter of Dale P. (189 AD2d 325, lv granted 82 NY2d 661) in a factual situation not unlike the instant matter. The Court in Matter of Dale P. (supra) held that Family Court had the authority to place the child outside his family pursuant to Social Services Law § 374, Family Court Act § 1052 (a) (iii) and § 1055 (a). The Second Department opined that because Family Court possessed the authority to place the child outside its family, the court is an "authorized agency” pursuant to Social Services Law § 371 (10) (b), and that there is no reason to differentiate between a foster child who is not placed by or with a social welfare agency and one directly placed by the court in a home not certified under applicable State and Federal law. The Second Department held that a child placed privately nonetheless became a "foster child” in law as well as in fact, and the unrelated person became the child’s "foster parent” as those terms are defined in Social Services Law § 371 (19). While Family Court concluded in the instant case that the "authorized agency” caring for William was in fact DSS by virtue of the order of supervision granted to it by Family Court and the extensions thereof, we agree with the reasoning of Matter of Dale P. (supra) in concluding that Family Court figured more accurately as the "authorized agency” and that Family Court Act § 1055 provides the statutory authority needed to support Family Court’s order directing DSS to proceed in termination of parental rights on the child’s behalf. In so holding, we reject the dissent’s narrow definitional approach as to whether William was ever in the "care” of an [118] authorized agency and its conclusion that the relevant statutory law never contemplated the broad interpretation employed by Family Court in holding that William was in fact in the care of an "authorized agency”. We find, as did the Second Department, that because the court was clearly empowered to place William and to continue such custody, it also was authorized to direct the initiation of proceedings to free the child for adoption under Family Court Act § 1055 (d). Footnotes [1] Family Court Act § 1055 (d) provides, in relevant part, that "[i]n addition to or in lieu of an order of extension or continuation of a placement * * * the court may make an order directing a social services official or other duly authorized agency to institute a proceeding to legally free the child for adoption, if the court finds reasonable cause to believe that grounds therefor exist”. In the event the official or agency fails to proceed with such a proceeding within a specified time period, the foster parent(s) with whom the child resides may, under certain circumstances, institute the proceeding (see, Family Ct Act § 1055 [d]). [2] DSS’ motion for a stay pending appeal was granted by a Justice of this Court.