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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                               - 3 -                         No. 118

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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                                - 4 -                        No. 118

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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