        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

936
CAF 10-00834
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF BRIDGET Y., KELLY Y.,
COLLEEN Y., AND MICHAELA Y.
-------------------------------------------------
CHAUTAUQUA COUNTY DEPARTMENT OF SOCIAL SERVICES,     OPINION AND ORDER
PETITIONER-RESPONDENT;

KENNETH M.Y. AND RITA S., RESPONDENTS-APPELLANTS.
(APPEAL NO. 1.)


LAW OFFICE OF ROBERT D. ARENSTEIN, NEW YORK CITY (RICHARD T. SULLIVAN
OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

JANE E. LOVE, MAYVILLE, FOR PETITIONER-RESPONDENT.

ANDREW T. RADACK, ATTORNEY FOR THE CHILDREN, SILVER CREEK, FOR KELLY
Y. AND COLLEEN Y.

MICHAEL J. SULLIVAN, ATTORNEY FOR THE CHILDREN, FREDONIA, FOR BRIDGET
Y. AND MICHAELA Y.


     Appeal from an order of the Family Court, Chautauqua County
(Judith S. Claire, J.), entered March 5, 2010 in a proceeding pursuant
to Family Court Act article 10. The order, among other things,
determined the subject children to be neglected.

     It is hereby ORDERED that said appeal insofar as it concerns
Colleen Y. and Kelly Y. is dismissed and the order is affirmed without
costs.

     Opinion by PERADOTTO, J.: The primary issue raised in these
appeals is whether Family Court properly exercised temporary emergency
jurisdiction over the subject children pursuant to Domestic Relations
Law § 76-c (3). Kenneth M.Y. and Rita S., the parents of the subject
children (hereafter, parents), are the respondents in appeal No. 1 and
two of the four respondents in appeal No. 2. In appeal No. 1, the
parents appeal from an order of fact-finding and disposition
determining, following a fact-finding hearing, that their children are
neglected and placing the children in the custody of petitioner
Chautauqua County Department of Social Services (DSS), the petitioner
in appeal No. 1 and one of the four petitioners in appeal No. 2. In
appeal No. 2, the parents appeal from a corrected order that, inter
alia, denied their motion to vacate the order of fact-finding and
disposition in appeal No. 1. The parents contend in both appeals that
Family Court, Chautauqua County (hereafter, Family Court), lacked
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                                                          CAF 10-00834

subject matter jurisdiction because New Mexico is the home state of
the children, the neglect took place in New Mexico, and the parents
are neither domiciliaries of nor otherwise significantly connected to
New York State. Under the unique circumstances of this case, we
conclude that the court properly exercised temporary emergency
jurisdiction pursuant to section 76-c (3) inasmuch as the children are
in imminent risk of harm, and we therefore conclude that both orders
should be affirmed.

              Factual Background and Procedural History

     This matter involves multiple proceedings commenced in New York
and New Mexico by various and overlapping parties, substantial motion
practice, and numerous orders entered in New York and New Mexico.
Although the appeals are limited to the neglect proceeding commenced
by DSS in New York, an overview of the factual background and
procedural history is necessary in order to assess the propriety of
Family Court’s assertion of temporary emergency jurisdiction pursuant
to Domestic Relations Law § 76-c (3).

     Respondent Kenneth M.Y. (hereafter, father), the biological
father of the children, married respondent Rita S. (hereafter,
stepmother), after the children’s biological mother died in September
2001. The stepmother subsequently adopted the children. At some time
between February 2007 and November 2007, the parents moved with the
children from Pennsylvania to New Mexico.

     On August 7, 2008, the parents were arrested and were each
charged with seven counts of child abuse with respect to the children.
The charges stemmed from allegations that the parents left Kelly and
Colleen, then 15 years old, and Michaela, then 12 years old,
unsupervised in a bug-infested trailer miles away from the family
residence, with limited supplies and inadequate food for a period of
six to eight weeks. It was further alleged that the parents, as a
form of discipline, had confined each of the children to their
bedrooms or to the garage for days, weeks, or months at a time. While
confined to the garage, the children received only water, bread,
peanut butter and a sleeping bag, and they were permitted to use the
bathroom once or twice a day.

     As a result of the criminal charges, a Magistrate Court in New
Mexico ordered the parents to avoid all contact with the children. In
light of the no-contact order, on August 11, 2008 the parents placed
the children in the care of their “maternal step-aunt and uncle”
(hereafter, aunt and uncle), Robin S. and Paul S., who are respondents
in appeal No. 2. Robin S. signed a “safety contract” with the New
Mexico Children, Youth and Families Department (CYFD), which states
that the parents voluntarily placed the children in the care of the
aunt and uncle and that the parents were “still legally responsible
for the [children’s] well-being.” Robin S. agreed to prohibit any
contact between the parents and the children and to advise the Dona
Ana County District Attorney’s Office in the event that the parents
attempted to remove the children from her care or otherwise to contact
the children in any way. Robin S. transported the children to her
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                                                         CAF 10-00834

home in Chautauqua County, New York.

     By letter dated September 22, 2008, CYFD notified the parents
that it had closed its file concerning the children. The letter
further stated that

          “[t]he Department believes that the voluntary
          placement of the children with Robin S[.] was in
          the best interests of the children. However, [the
          parents] are free to make changes in that
          voluntary placement if they choose to as they
          remain the legal custodians of their children.
          The Department has no legal authority with respect
          to the children at this time. The safety contract
          between the Department and Robin S[.] was for
          placement purposes and does not prevent [the
          parents] from making changes to the children’s
          placement.”

     According to the parents, they provided a copy of that letter to
the aunt and uncle and notified them of their “intent to revoke the
temporary placement of the minor children in their care and place the
minor children with an appropriate guardian.” The aunt and uncle
refused to return the children, however, and instead filed a petition
in Family Court seeking custody of the children.

     On October 1, 2008, the parents were indicted in New Mexico on
six counts each of felony abuse of a child in violation of New Mexico
Statutes Annotated § 30-6-1 (D). Pursuant to the statute, “[a]buse of
a child consists of a person knowingly, intentionally or negligently,
and without justifiable cause, causing or permitting a child to be:
(1) placed in a situation that may endanger the child’s life or
health; (2) tortured, cruelly confined or cruelly punished; or (3)
exposed to the inclemency of the weather.”

     On November 5, 2008, the parents filed a “Petition to Determine
Custody Pursuant to the [Uniform Child Custody Jurisdiction and
Enforcement Act]” (hereafter, UCCJEA) in District Court in New Mexico
(hereafter, New Mexico court) against the aunt and uncle. The
petition alleged, inter alia, that the parents have resided in New
Mexico since February 2007, that New Mexico is the home state of the
children, and that the parents had placed the children with the aunt
and uncle on a temporary basis “until a more suitable placement could
be made or until [the parents’] conditions of release were modified or
disposed of so that the children could be reunited with them.” By
their petition, the parents sought to place the children in the care
and custody of a different temporary guardian. The parents thus
sought an order confirming that they are the legal guardians of the
children, and appointing a temporary guardian for the minor children
until the criminal charges against them were resolved or their
conditions of release were modified.

     Two days later, Family Court issued a temporary order of custody
asserting temporary emergency jurisdiction pursuant to Domestic
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                                                         CAF 10-00834

Relations Law § 76-c and granting temporary custody of the children to
the aunt and uncle. DSS thereafter commenced the instant neglect
proceeding in Family Court by petition filed November 13, 2008,
alleging that the parents had neglected each of the children. At a
Family Court appearance on November 24, 2008, an attorney for the
parents appeared for the limited purpose of contesting jurisdiction,
asserting that the parents are residents of New Mexico, that the
alleged neglect took place in New Mexico, and that the children remain
residents of New Mexico. Family Court continued to assert temporary
emergency jurisdiction over the matter.

     On December 10, 2008, the New Mexico court issued an “Order
Assuming Jurisdiction.” The New Mexico court determined that it had
jurisdiction over the parties and the subject matter, i.e., the
children, noting that the children had resided with the parents in New
Mexico since February 2007 and expressly stating that New Mexico is
the home state of the children. With respect to the merits, the New
Mexico court ruled that the parents “remain the sole legal custodians
of the minor children, which includes the right to decide the
temporary placement of the minor children with an appropriate guardian
of their choosing.” According to the New Mexico court, the parents
wished to nominate Jim L. and Angela L., residents of Ohio (hereafter,
Ohio guardians), as temporary guardians of the children. To that end,
the New Mexico court ordered the parents to arrange for a home study
of the Ohio guardians, and to pay for the cost of the home study.
Finally, the New Mexico court ruled that “[t]he issue of permanent
custody is hereby reserved pending resolution of the criminal charges.
Following resolution of the criminal proceeding, the Court may appoint
a guardian ad litem herein and may conduct in camera interviews of the
minor children.” The parents sought to register the above New Mexico
order in Family Court. At a December 15, 2008 appearance, Family
Court indicated that it had some concerns relative to relinquishing
jurisdiction to the New Mexico court. Specifically, the Family Court
judge indicated that

          “[w]hat concerns me is, apparently, there is no
          neglect proceeding in the State of New Mexico.
          There are criminal proceedings against these
          parents, but for whatever reason, there was no
          neglect proceeding . . . [W]ith criminal charges
          pending, and the children being the ones who would
          be put in the position of testifying, should there
          be a criminal trial, . . . the children are left
          with no legal remedies. There hasn’t even been a
          law guardian appointed . . . for these children in
          the State of New Mexico. And the parents are
          given full authority to do whatever, and place
          these children wherever they so choose.”

     By order entered January 9, 2009, the New Mexico court approved
the home study and ordered the immediate transfer of the children to
the Ohio guardians. The New Mexico court reiterated that the parents
“are the sole legal guardians of the minor children and maintain their
constitutional right to management and control of their minor
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                                                         CAF 10-00834

children,” and approved “[t]he parents’ selection of placement
guardian for their minor children.” In light of that order, the
parents requested that Family Court issue an order (1) registering and
enforcing the New Mexico order assuming jurisdiction; (2) dismissing
the New York custody proceeding; (3) dismissing the New York neglect
proceeding; (4) vacating the temporary order of custody; and (5)
enforcing the New Mexico transfer order.

     DSS thereafter sought an award of temporary custody of the
children. In support thereof, DSS submitted an affidavit of a
psychologist who had counseled each of the children. The psychologist
averred that the children “have related very credible stories of child
abuse and neglect,” and that the parents demonstrated a “disturbing
pattern of isolating these children from each other, from children
their age, and from their mother’s relatives.” With respect to the
proposed move to Ohio, the psychologist averred that

          “[a]ny change in placement for the [children] that
          is instigated by their father or adoptive mother
          carries the implicit message to these girls that
          they are still under the control of their father,
          and therefore still at risk for abuse and
          maltreatment . . . Removing them from an
          emotionally secure family environment, the friends
          they have recently established, and a school
          environment which has been affirming for them,
          must be considered a further emotional deprivation
          for these girls, and a demonstration to the girls
          that they remain at risk of capricious, abusive
          and insensitive treatment by their father.
          Accordingly, by generating a constant state of
          anxiety and uncertainty for them, such a move
          would result in a perpetuation of the emotional
          abuse and deprivation that these children suffered
          under the care of their father and adoptive
          mother.”

     Family Court granted temporary custody of the children to DSS,
concluding that the basis for asserting emergency jurisdiction
continued to exist. Family Court explained that, “[w]hen there is a
placement out of state in a situation where parents are facing
criminal charges, and there is no underlying custody order, and no law
guardian appointed for the children, . . . then the children are left
without protection, plain and simple.”

     At the fact-finding hearing on the neglect petition, DSS
introduced testimony from each of the children as well as from the
maternal step-aunt, Robin S., and the children’s psychologist, and
Family Court received in evidence records from the New Mexico Police
Department and financial records relative to the father. Of note, the
financial records reflect that the father, an orthopedic surgeon, had
an annual income in excess of $280,000. The parents failed to appear
at the hearing and subsequently moved to dismiss the neglect
proceeding for lack of personal and subject matter jurisdiction.
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                                                         CAF 10-00834

     By the order in appeal No. 1, Family Court implicitly denied the
parents’ motion to dismiss the neglect proceeding by issuing an order
of fact-finding and disposition, which determined that the parents
neglected each of the four children, ordered that the children be
placed in the custody of DSS, and adopted the permanency plan proposed
by DSS. By the corrected order in appeal No. 2, Family Court, inter
alia, denied the parents’ motion to vacate the order of fact-finding
and disposition.

                              Discussion

     We note at the outset that the two older children have attained
the age of 18 during the pendency of these appeals, and we therefore
dismiss as moot the appeals insofar as they concern those two children
(see Matter of Anthony M., 56 AD3d 1124, lv denied 12 NY3d 702).

     Initially, we agree with the parents that, absent the exercise of
temporary emergency jurisdiction, Family Court would lack subject
matter jurisdiction over the neglect proceeding. Pursuant to New
York’s version of the UCCJEA (Domestic Relations Law art 5-A),
Domestic Relations Law § 76 (1) “is the exclusive jurisdictional basis
for making a child custody determination by a court of this state” (§
76 [2]). A “[c]hild custody determination” is defined as “a judgment,
decree, or other order of a court providing for the legal custody,
physical custody, or visitation with respect to a child. The term
includes a permanent, temporary, initial, and modification order” (§
75-a [3]).

     Domestic Relations Law § 76 (1) provides in relevant part that,

          “[e]xcept as otherwise provided in section [76-c]
          of this title [pertaining to temporary emergency
          jurisdiction], a court of this state has
          jurisdiction to make an initial child custody
          determination only if: (a) this state is the home
          state of the child on the date of the commencement
          of the proceeding, or was the home state of the
          child within six months before the commencement of
          the proceeding and the child is absent from this
          state but a parent or person acting as a parent
          continues to live in this state . . . .”

A child’s “[h]ome state” is “the state in which a child lived with a
parent or a person acting as a parent for at least six consecutive
months immediately before the commencement of a child custody
proceeding” (§ 75-a [7]). The UCCJEA broadly defines “[c]hild custody
proceeding” as “a proceeding in which legal custody, physical custody,
or visitation with respect to a child is an issue,” including “a
proceeding for divorce, separation, neglect, abuse, dependency,
guardianship, paternity, termination of parental rights, and
protection from domestic violence, in which the issue may appear” (§
75-a [4] [emphasis added]).

     Here, the neglect proceeding commenced by DSS falls within the
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                                                         CAF 10-00834

UCCJEA’s expansive definition of a child custody proceeding (see
Domestic Relations Law § 75-a [4]). Further, there is no question
that New Mexico, not New York, was the home state of the children at
the time of commencement of the neglect proceeding. When the neglect
proceeding was commenced in November 2008, the children had been
living in New York for only three months. Prior to that time, the
children lived with the parents in New Mexico for at least 10
consecutive months, i.e., from November 2007 until August 2008. Thus,
New Mexico remained the home state of the children when the neglect
proceeding was commenced in New York, and Family Court lacked
jurisdiction to make an initial child custody determination (see § 76
[1] [a], [2]; see also Matter of Gharachorloo v Akhavan, 67 AD3d
1013).

     In addition, Domestic Relations Law § 76-e states that, “[e]xcept
as otherwise provided in section [76-c] of this title[, i.e.,
temporary emergency jurisdiction], a court of this state may not
exercise its jurisdiction under this title if, at the time of the
commencement of the proceeding, a proceeding concerning the custody of
the child[ren] has been commenced in a court of another state having
jurisdiction substantially in conformity with this article . . . .”
Here, at the time of commencement of the neglect proceeding in New
York, the parents had already commenced a custody proceeding in New
Mexico. Thus, inasmuch as a custody proceeding was pending in the
children’s home state when the neglect petition was filed, New York
was precluded from exercising jurisdiction except in an emergency (see
§ 76-e [1]; see generally Sobie, Practice Commentaries, McKinney’s
Cons Laws of NY, Book 14, Domestic Relations Law § 76-e).

     We conclude, however, that Family Court properly exercised
temporary emergency jurisdiction pursuant to Domestic Relations Law §
76-c. In the absence of subject matter jurisdiction pursuant to
section 76 (1), section 76-c provides that a New York court has
“temporary emergency jurisdiction if the child[ren are] present in
this state and the child[ren] ha[ve] been abandoned or it is necessary
in an emergency to protect the child[ren], a sibling or parent of the
child[ren]” (§ 76-c [1]; see Matter of Hearne v Hearne, 61 AD3d 758,
759). There is no question that the children were present in New York
at all relevant times in which Family Court exercised temporary
emergency jurisdiction. We are of course mindful that “the mere
physical presence of the child[ren] in this [s]tate is not a
sufficient basis per se for the exercise of jurisdiction . . . There
must, in addition, be an emergency that is real and immediate, and of
such a nature as to require [s]tate intervention to protect the
child[ren] from imminent physical or emotional danger” (Matter of
Severio P. v Donald Y., 128 Misc 2d 539, 542; see generally Matter of
Vanessa E., 190 AD2d 134, 137; Matter of Michael P. v Diana G., 156
AD2d 59, 66, lv denied 75 NY2d 1003; De Passe v De Passe, 70 AD2d 473,
474-475).

     The duration of an order rendered pursuant to temporary emergency
jurisdiction depends upon whether there is an enforceable child
custody determination or a child custody proceeding pending in a court
with jurisdiction (see Matter of Callahan v Smith, 23 AD3d 957, 958 n
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                                                         CAF 10-00834

2; compare Domestic Relations Law § 76-c [2], with [3]). Here, a
child custody proceeding had been commenced in New Mexico when Family
Court first asserted temporary emergency jurisdiction. Thus, Family
Court’s exercise of temporary emergency jurisdiction is governed by
section 76-c (3), which provides that

          “any order issued by a court of this state under
          this section must specify in the order a period
          that the court considers adequate to allow the
          person seeking an order to obtain an order from
          the state having jurisdiction under sections [76]
          through [76-b] of this title. The order issued in
          this state remains in effect until an order is
          obtained from the other state within the period
          specified or the period expires, provided,
          however, that where the child who is the subject
          of a child custody determination under this
          section is in imminent risk of harm, any order
          issued under this section shall remain in effect
          until a court of a state having jurisdiction under
          sections [76] through [76-b] of this title has
          taken steps to assure the protection of the
          child.”

     In this case, Family Court first exercised temporary emergency
jurisdiction on November 7, 2008, when it issued a temporary order of
custody in the proceeding commenced by the aunt and uncle. In our
view, there is no question that an emergency existed at that point in
time. On September 22, 2008, CYFD notified the parents’ attorney that
it had closed its file concerning the children and that the parents,
as the “legal custodians of their children,” were “free to make
changes in th[eir] voluntary placement.” Shortly thereafter, the
parents sent the stepmother’s father, who lived with them, to New York
in an attempt to take the children to an undisclosed address in New
Mexico. On November 5, 2008, the parents commenced a custody
proceeding in New Mexico seeking, inter alia, to place the children in
the care and custody of yet another temporary guardian. According to
the aunt and uncle, the parents also made “a threat . . . immediately
before the [New Mexico] Grand Jury Proceedings where the children were
told that they would be taken to an unknown location.” The parents
initially sought to appoint the father’s office manager as temporary
guardian for the children. They then nominated the Ohio guardians,
allegedly “long time and close friends of the family,” as the
temporary guardians of the children. The children told their
attorneys and Family Court that they had never met the Ohio guardians.
We thus conclude that Family Court properly acted to protect the
children from imminent danger, i.e., the likelihood of returning the
children to the home at which the abuse and neglect occurred or to
another guardian under the control of the parents. At that point in
time, no New Mexico court had issued an order protecting the children,
and CYFD – the New Mexico equivalent of DSS – had determined that it
had “no legal authority with respect to the children.”

     The orders challenged on appeal, however, were issued after the
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parents had obtained two orders in New Mexico: (1) the December 10,
2008 order assuming jurisdiction, and (2) the January 9, 2009 order
approving the home study and ordering the immediate transfer of the
children. The propriety of Family Court’s orders thus depends upon
whether this case falls within the narrow exception set forth in
Domestic Relations Law § 76-c (3), which provides that, “where the
child[ren] who [are] the subject of a child custody determination
under this section [are] in imminent risk of harm, any order issued
under this section shall remain in effect until a court [of the home
state] has taken steps to assure the protection of the child[ren].”
The Practice Commentaries caution that courts “should invoke the
exception only rarely and in the most compelling circumstances”
(Sobie, Practice Commentaries, § 76-c, at 517), and that “[t]he
authority granted by the exception is best . . . reserved for the most
egregious, unusual case” (id. at 519). We conclude that this case
falls within that category.

     Here, the parents have each been indicted for six counts of
felony child abuse in New Mexico as a result of their conduct in,
inter alia, locking the children in a garage for days or weeks at a
time and abandoning three of the four children in a trailer miles from
the family residence for six to eight weeks in the summer of 2008.
The police report filed in New Mexico states that the trailer was “not
suitable for teenagers to be living in” and contained only a single
chair and no beds. The father locked the trailer door from the
outside so that the children had to climb out of a window to exit the
trailer. When the police arrived at the scene, there was no food in
the refrigerator or the pantry, and there was a single jar of peanut
butter on the counter.

     Confining the children to the trailer was the culmination of what
appears to have been years of escalating abuse and neglect following
the father’s marriage to the stepmother in 2003. Colleen testified at
the fact-finding hearing that, before their mother’s death, the
children were enrolled in public school, regularly attended church,
and engaged in activities such as sports, ballet and Girl Scouts.
Upon the father’s remarriage, the activities ceased and the children
were enrolled in parochial schools. After frequently changing schools
for no reason apparent on the record before us, the children were
removed from school and were home-schooled by the stepmother. During
their time in New Mexico, the children had no friends and did not
participate in any sports or other extracurricular activities outside
the home.

     The children were routinely punished by being confined to their
bedrooms and/or the garage. The garage contained a table, a lamp, and
a “bean bag” chair. While so confined, the children were fed only
water, peanut butter, and bread, and they were permitted to leave only
once or twice a day when their father arrived to take them to the
bathroom. On one occasion, Michaela was confined to the garage for
“about three months” because she failed to complete her home-school
work assignment. Michaela testified that, if she could not wait to
use the bathroom, she used a “dog pen” on the side of the house.
Kelly testified that her father left her in an unoccupied townhouse
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                                                         CAF 10-00834

for “a couple of weeks.” The townhouse was unfurnished, and Kelly
slept on the carpet. The father only allowed her to bring some
clothes, peanut butter and bread, and a piece of cloth that she used
as both a blanket and a towel. When the father brought Kelly back to
the house, he placed her in the garage for another two weeks.

     At some point, the parents informed Colleen, Kelly and Michaela
that they were going back to school, but that they would have to wear
“uniforms,” i.e., “a pair of sweatpants and a T-shirt” in colors that
their father had selected. The three girls then began taking money
out of their stepmother’s purse to purchase school clothes. When the
parents discovered what the girls were doing, they called the police
and the girls were arrested. About a week later, the father moved
Colleen, Kelly and Michaela into the trailer in the middle of the
night. The father brought peanut butter, bread, flour, and a bag of
dried pinto beans as food for the children, and gave them a cellular
telephone that was programmed to call only the parents. When the
bread ran out, the children mixed flour and water to make “flat
bread.” The children testified that the trailer had broken windows
and was infested with cockroaches, ants, beetles, and spiders, and
that its only furnishings were one or two sleeping bags, two blankets,
and a single chair. According to Family Court, photographs of the
trailer depicted “a very bleak looking trailer, broken tiles, exposed
nails, no furniture, and [a] mostly empty refrigerator, and totally
empty freezer above, in sharp contrast to the house.”

     After the parents were arrested, CYFD completed an intake report
concerning the children, which lists emotional and physical neglect,
inadequate food, and close confinement. CYFD, however, apparently
closed its file on the children without taking any further action
after the aunt and uncle assumed physical custody of the children
pursuant to the August 2008 “safety contract.” Indeed, the aunt
testified at the neglect hearing that she never heard from CYFD after
the children moved to New York.

     With respect to the first of the two New Mexico orders issued
before the orders challenged on appeal, we note that, despite the
criminal charges, the substantial evidence of abuse and neglect, and
the no-contact order, the New Mexico court allowed the parents to
select new guardians for the children and ruled that it would not
address the issue of permanent custody until after the criminal
charges had been resolved. The order provided that the New Mexico
court “may appoint a guardian ad litem herein and may conduct in
camera interviews of the minor children” following resolution of the
criminal proceeding (emphasis added). The order further provided that
the parents “shall not in any manner communicate with the minor
children or cause any third party or their agent to communicate in any
manner with the minor children regarding this matter or the criminal
matter” (emphasis added). The New Mexico court thus left open the
possibility of communication or contact between the parents and the
children on other subjects. Although the New Mexico court ordered the
parents to “continue to abide by the no[-]contact order or any further
order” issued in the criminal proceeding, the court noted that
“[t]here is no other order limiting [their] parental rights to the
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                                                         CAF 10-00834

minor children.” With respect to the second of the two New Mexico
orders, the New Mexico court, after reviewing a home study arranged
and paid for by the parents, reiterated that the parents “maintain
their constitutional right to management and control of their minor
children,” approved the parents’ “selection of placement guardian[s]
for their minor children,” and ordered the immediate transfer of the
children to the Ohio guardians. Thus, without any input from CYFD or
any other agency charged with the protection of children, an attorney
for the children, or the children themselves, the New Mexico court
ordered that the children be transferred from family members to non-
relatives who were strangers to them and who resided in a state with
which they had no connection, all at the behest of the parents who had
abused them.

     We find it particularly troubling that CYFD failed to commence an
abuse or neglect proceeding against the parents and that the New
Mexico court failed to appoint an attorney for the children to
advocate on their behalf pursuant to New Mexico law. The Children’s
Code of the New Mexico statutes provides that its overriding purpose
is to “provide for the care, protection and wholesome mental and
physical development of children coming within [its] provisions,” and
specifies that “[a] child’s health and safety shall be the paramount
concern” (NM Stat Ann § 32A-1-3 [A]). The Children’s Code further
articulates as one of its purposes “the cooperation and coordination
of the civil and criminal systems for investigation, intervention, and
disposition of cases, to minimize interagency conflicts and to enhance
the coordinated response of all agencies to achieve the best interests
of a child victim” (§ 32A-1-3 [F] [emphasis added]). As relevant to
this case, New Mexico Statutes Annotated § 32A-4-4 (A) provides that
abuse and neglect complaints shall be referred to CYFD, which “shall
conduct an investigation and determine the best interests of the
child[ren] with regard to any action to be taken.” Upon completion of
its investigation, CYFD is required either to “recommend or refuse to
recommend the filing of [an abuse and/or neglect] petition” (§ 32A-4-4
[C]). The Children’s Code further provides that, “[a]t the inception
of an abuse and neglect proceeding, the court shall appoint a guardian
ad litem for a child under fourteen years of age. If the child is
fourteen years of age or older, the court shall appoint an attorney
for the child” (§ 32A-4-10 [C] [emphasis added]). The New Mexico
Court of Appeals has stated that, “[a]s a general rule, the court,
upon being apprised that a minor is unrepresented by counsel, has a
duty to appoint a guardian ad litem or an attorney to protect the
interests of such child” (State of New Mexico ex rel. Children, Youth
& Families Dept. v Lilli L., 121 NM 376, 378, 911 P2d 884, 886), and
that “a failure to appoint either counsel or a guardian ad litem to
protect the interests of a minor may constitute a denial of due
process, thereby invalidating such proceedings” (121 NM at 379, 911
P2d at 887).

     Here, as noted above, CYFD apparently failed to conduct the
statutorily mandated investigation into the abuse and neglect
allegations against the parents (see NM Stat Ann § 32A-4-4 [A]), and
the agency also failed either to recommend or to refuse to recommend
the filing of an abuse or neglect petition against them (see § 32A-4-4
                                 -12-                          936
                                                         CAF 10-00834

[C]). Instead, CYFD simply transferred the children to New York and
closed its file, leaving the children’s fate to the wishes of their
alleged abusers. In addition, upon asserting jurisdiction over the
case, the New Mexico court failed to appoint a guardian ad litem or
attorney for the children to “represent and protect the best interests
of the child[ren] in [the] court proceeding” (§ 32A-1-4 [J]; see §
32A-4-10). The New Mexico court then proceeded to change the
children’s placement at the request of the parents without enabling
the children to have a voice in the courtroom and without any
consideration, let alone determination, of the children’s best
interests.

     As previously noted herein, the children’s psychologist averred
in an affidavit presented to Family Court that the parents displayed a
“disturbing pattern of isolating these children from each other, from
children their age, and from their mother’s relatives,” and he opined
that moving the children to Ohio at the behest of the parents “would
result in a perpetuation of the emotional abuse and deprivation that
the[] children suffered under the care of their father and adoptive
mother”.

     Notably, the Ohio guardians were the parents’ second choice, and
thus both their first and second choices for guardians were non-
relatives, the first being the father’s office manager. As the
Attorney for the Children argued in Family Court, the parents’ actions
in attempting to remove the children from their New York placement
constituted “a continuing pattern of abuse to isolate [the children]
from family members,” and she and the psychologist similarly concluded
that the parents’ actions communicated to the children that they
remain under the control of their abusers.

     In light of the above-described circumstances, including the
absence of a neglect proceeding in New Mexico and the refusal of the
New Mexico court to act to protect the children pending the resolution
of the criminal charges against the parents, we conclude that Family
Court properly continued to exercise temporary emergency jurisdiction
of the children after the issuance of the two New Mexico orders. In
our view, the children remained “in imminent risk of harm,” namely,
emotional abuse inflicted by the parents, and it appears from the
record before us that New Mexico has not acted to “assure the
protection of the child[ren]” (Domestic Relations Law § 76-c [3]; see
generally Matter of Maureen S. v Margaret S., 184 AD2d 159, 165;
Matter of Janie C., 31 Misc 3d 1235[A], 2011 NY Slip Op 51007[U], *2-
3; Severio P., 128 Misc 2d at 545).

     The parents further contend that, even if Family Court properly
exercised temporary emergency jurisdiction in the neglect proceeding,
such jurisdiction did not permit Family Court to enter an order of
disposition. We reject that contention. Domestic Relations Law § 76-
c (2), which applies when a child custody proceeding has not been
commenced in the home state, expressly contemplates that an order
entered pursuant to the exercise of temporary emergency jurisdiction
may become a final child custody determination. Pursuant to section
76-c (2), “[i]f a child custody proceeding has not been or is not
                                 -13-                          936
                                                         CAF 10-00834

commenced in a court of a state having jurisdiction under . . . this
title, a child custody determination made under this section becomes a
final determination, if it so provides and this state becomes the home
state of the child.” Domestic Relations Law § 76-c (3), however,
which is previously quoted herein and governs the instant case in
light of the custody proceedings in New Mexico, contains no such
provision. Thus, orders issued pursuant to section 76-c (3) are
required to expire at a date certain unless the “imminent risk of
harm” exception applies, in which case the order applies “until [the
home state] has taken steps to assure the protection of the child.”

     The parents contend that the absence of language pertaining to a
final determination in Domestic Relations Law § 76-c (3) implies that
a court exercising temporary emergency jurisdiction pursuant to that
section is unable to issue final determinations. Even assuming,
arguendo, that the parents are correct, we conclude that Family Court
is not thereby precluded from issuing the order of disposition in
appeal No. 1. Although an order of fact-finding and disposition is a
final order for purposes of appellate review (see Ocasio v Ocasio, 49
AD2d 801; see generally Matter of Gabriella UU., 83 AD3d 1306; Matter
of Mitchell WW., 74 AD3d 1409, 1411-1412), it is not a final or
permanent “child custody determination” (§ 76-c [2], [3] [emphasis
added]). Rather, the order in appeal No. 1 here simply placed the
children in the custody of DSS, scheduled a permanency hearing, and
approved a proposed plan for the children. Indeed, a placement with
DSS is never intended to be a final or permanent custodial
relationship. In cases such as this in which a child is placed with
DSS pursuant to Family Court Act § 1055, the court retains continuous
jurisdiction over the case (see § 1088), and the child’s placement is
reviewed at permanency hearings conducted every six months (see § 1089
[a] [2], [3]). Such jurisdiction continues until the child is
“discharged from placement” (§ 1088), i.e., until permanency is
achieved (see Sobie, Practice Commentaries, McKinney’s Cons Laws of
NY, Book 29A, Family Ct Act § 1086, at 193). As the Practice
Commentaries explain, Family Court “maintains complete continuing
jurisdiction whenever a child has been placed outside his [or her]
home. Accordingly, the case remains on the Court’s calendar — there
is no final disposition until permanency has been ordered — and the
Court may hear the matter upon motion at any time. There is no need
or requirement to wait until the next scheduled hearing date” (Sobie,
Practice Commentaries, Family Ct Act § 1088, at 199-200 [emphasis
added]). The parents therefore may at any time petition for the
return of their children and/or move to vacate or terminate the
children’s placement with DSS (see Sobie, Practice Commentaries,
Family Ct Act § 1086; see generally § 1088).

     Thus, the order of fact-finding and disposition in appeal No. 1,
which concerns placement rather than custody of the children, does not
conflict with New Mexico’s order, which provides that the “issue of
permanent custody is hereby reserved pending resolution of the
criminal charges” against the parents. Upon resolution of the
criminal charges or when the emergency abates, i.e., when the New
Mexico court ensures that the children are not “in imminent risk of
harm” (Domestic Relations Law § 76-c [3]), the children’s placement
                                 -14-                          936
                                                         CAF 10-00834

with DSS may be revisited and the issue of permanent custody
addressed. Until then, the order of fact-finding and disposition
simply maintains the status quo – placement in the custody of DSS –
with periodic judicial review to assess any changed circumstances.
Inasmuch as the order of fact-finding and disposition does not
constitute a final custody determination, it cannot be said that
Family Court exceeded the scope of its temporary emergency
jurisdiction in issuing the order in appeal No. 1.

                              Conclusion

     We have reviewed the parents’ remaining contentions and conclude
that they are without merit. Accordingly, we conclude that both
orders should be affirmed.

     FAHEY and SCONIERS, JJ., concur with PERADOTTO, J.; SMITH, J.P.,
dissents in part and votes to reverse in accordance with the following
Opinion, in which LINDLEY, J., concurs: We respectfully dissent in
part because we cannot agree with the majority that Family Court
properly exercised temporary emergency jurisdiction over the subject
children. Initially, we agree with the majority that the appeal must
be dismissed with respect to the two older children because they are
no longer under the age of 18, and thus that is the basis for our
dissenting only in part. We also agree with the majority that this
proceeding falls within the expansive definition of a child custody
proceeding set forth in the Uniform Child Custody Jurisdiction and
Enforcement Act ([UCCJEA]; see Domestic Relations Law § 75-a [4]), and
that there is no question that New Mexico, not New York, was the home
state of the children at the time of commencement of the neglect
proceeding at issue in this appeal. In addition, we agree with the
majority’s further conclusion that, “inasmuch as a custody proceeding
was pending in the children’s home state when the neglect petition was
filed, New York was precluded from exercising jurisdiction except in
an emergency,” as defined in section 76-c. We cannot agree, however,
that such an emergency existed here.

     We begin with the proposition that “section 76 of the Domestic
Relations Law forms the foundation of the UCCJEA and governs virtually
every custody proceeding. It is designed to eliminate jurisdictional
competition between courts in matters of child custody” (Matter of
Michael McC. v Manuela A., 48 AD3d 91, 95, lv dismissed 10 NY3d 836;
see Matter of Felty v Felty, 66 AD3d 64, 69-70). Even under the
UCCJEA’s predecessor statute, jurisdiction could be established by
demonstrating that the state at issue was the children’s home state,
but the “UCCJEA elevates the ‘home state’ to paramount importance in
both initial custody determinations and modifications of custody
orders” (Michael McC., 48 AD3d at 95). Under the pertinent section of
the UCCJEA, a New York court “has temporary emergency jurisdiction if
the child is present in this state and . . . it is necessary in an
emergency to protect the child, a sibling or parent of the child” (§
76-c [1]; see Matter of Santiago v Riley, 79 AD3d 1045). Thus, we may
uphold the orders on appeal only if the children require protection as
the result of a qualifying emergency.
                                 -15-                          936
                                                         CAF 10-00834

     Although there is scant case law under the UCCJEA, the case law
with respect to the predecessor statute to the UCCJEA provides that
“New York can exercise jurisdiction [only] in an emergency situation
‘vitally and directly’ affecting the health, welfare, and safety of
the subject child” (Matter of D’Addio v Marx, 288 AD2d 218, 219,
quoting Martin v Martin, 45 NY2d 739, 742, rearg denied 45 NY2d 839).
New York enacted the UCCJEA, revising the preexisting statute, to
promote uniformity concerning child custody disputes regarding
children who move from one state to another (see Felty, 66 AD3d at 69-
70; Stocker v Sheehan, 13 AD3d 1, 4), and thus a finding of emergency
jurisdiction under the UCCJEA requires a similar showing as that
required under the predecessor statute. Indeed, the majority also
relies upon cases decided under the predecessor statute, and it
therefore appears that we are in agreement with the majority that
those cases are still controlling with respect to the definition of an
emergency for jurisdictional purposes.

     Pursuant to that case law, it is settled that, although “the word
‘emergency’ may, arguably, be construed in a flexible manner so as to
furnish a predicate for jurisdiction, in practice an emergency
situation is extremely difficult to demonstrate. Thus, in order to
establish an emergency, there must, in effect, be evidence of imminent
and substantial danger to the child[ren] in question” (Matter of
Michael P. v Diana G., 156 AD2d 59, 66, lv denied 75 NY2d 1003; see
Matter of Hernandez v Collura, 113 AD2d 750, 752). Therefore, New
York courts may assert temporary emergency jurisdiction only “if the
immediate physical and mental welfare of children require[s], vitally
and directly,” that they do so (Martin, 45 NY2d at 742; see Matter of
Vanessa E., 190 AD2d 134, 137). Furthermore, the UCCJEA Practice
Commentaries continue to caution that courts “should invoke the
exception only rarely and in the most compelling circumstances”
(Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14,
Domestic Relations Law § 76-c, at 517). “The authority granted by the
exception is best left unused, or at least reserved for the most
egregious, unusual case” (id. at 519).

     In general, a risk of imminent harm arises when the children are
to be returned to the custody of a person who abused them, raising a
strong possibility that the abuse would recur (see e.g. Matter of
Woods v Woods, 56 AD3d 789; Matter of Callahan v Smith, 23 AD3d 957;
Vanessa E., 190 AD2d at 137-138). If this were such a case, then the
majority’s decision would be proper. As the majority points out, the
children’s parents are charged with bizarre and dangerous acts of
abuse, and any action that would require that the children be returned
to them would place the children in imminent risk of harm. The
reality of this situation, however, is that there is no imminent
danger that the children will be returned to the parents or placed
under their control.

     As the majority correctly notes, prior to the issuance of the
orders on appeal by the New York Family Court, the New Mexico court
issued several orders, including one that assumed jurisdiction over
custody of the children and another that transferred custody of them
to a family in Ohio. The majority fails to note, however, that the
                                 -16-                          936
                                                         CAF 10-00834

latter order contained an order of protection prohibiting the parents
from communicating with the children in any manner, including through
third parties, regarding the custody case or the criminal proceedings.
The New Mexico court also ordered the parents to attend a court-
approved Parent Education Workshop, approved a home study of the Ohio
family by a licensed social worker and, most importantly, ordered that
the children shall not be removed from the care of that family, or
from a 100-mile radius of the Ohio family’s residence without the
prior approval of the New Mexico court. Consequently, there is no
imminent risk that the parents will continue their alleged abuse of
the children, and the majority’s conclusion that the New Mexico court
acted “without any consideration, let alone determination, of the
children’s best interests” is simply incorrect.

     Similarly, the other risk upon which the majority relies in
determining that Family Court properly exercised emergency
jurisdiction, i.e., its conclusion that there is an imminent risk that
the children will suffer further emotional abuse inflicted by the
parents, does not “vitally and directly” impact the immediate physical
or mental welfare of the children (Martin, 45 NY2d at 742). That
conclusion is based upon the testimony of psychological experts that
the children will suffer stress from having to move to a state with
which they are not familiar and from living with people that they do
not know, thus causing them to feel that they are under the control of
their abusive parents. Although the move to Ohio may be stressful for
the children, permitting Family Court to exercise temporary emergency
jurisdiction under these circumstances would eviscerate the statute
because any interstate jurisdiction question necessarily involves the
likelihood of an interstate relocation. Inasmuch as there is no
imminent danger that the children will be under the control of their
parents, and in view of the fact that the New Mexico court retains
control over any possible future contact that the parents will have
with the children, we conclude that there is no imminent danger of
abuse within the meaning of the statute.

     Finally, we conclude that Family Court has issued an order that
is in conflict with an order of the children’s home state, and which
has no provision for the eventual transfer of jurisdiction to the home
state. Family Court has thereby created a jurisdictional competition
rather than eliminating such a competition, the latter of which is
required by the UCCJEA. “The best interest[s] of the children is, of
course, the prime concern . . . That the children’s best interest[s]
must come first, however, does not mean that the courts of this State
should disregard the prior [New Mexico order] and determine, as if
writing on a clean slate, who would make a better [custodian] . . . If
their [parents are] unfit parent[s], that is a matter for the [New
Mexico] courts to decide . . . A different case would be presented if
the immediate physical and mental welfare of [the] children required,
vitally and directly, that the children be retained in this
jurisdiction and that the courts in this State determine who shall
have custody of them. Factors raising those difficult issues are not
present in this case. It is the courts of [New Mexico] that should
adjudicate the ultimate custody dispute if ‘priority . . . be accorded
to the judgment of the court of greatest concern with the welfare of
                                 -17-                          936
                                                         CAF 10-00834

the children’ . . . There is nothing presented in this case which
suggests that the courts of the sister State are not competent or
ready to do justice between the parties and for the children” (Martin,
45 NY2d at 741-742). Accordingly, we would reverse the orders on
appeal insofar as they apply to the children under the age of 18 and
grant the parents’ motion to dismiss the proceeding with respect to
them for lack of jurisdiction.




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
