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

730
CAF 13-00323
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF ANASTASIA I.
------------------------------------------
SVETLANA T. AND WAYNE COUNTY DEPARTMENT OF       MEMORANDUM AND ORDER
SOCIAL SERVICES, PETITIONERS-RESPONDENTS;

AARON M.I., RESPONDENT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-APPELLANT.

ELIZABETH A. SAMMONS, WILLIAMSON, FOR PETITIONER-RESPONDENT SVETLANA
T.

GARY LEE BENNETT, LYONS, FOR PETITIONER-RESPONDENT WAYNE COUNTY
DEPARTMENT OF SOCIAL SERVICES.

NANCY M. LORD, ATTORNEY FOR THE CHILD, LYONS.


     Appeal from an order of the Family Court, Wayne County (Daniel G.
Barrett, J.), entered February 11, 2013 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things, committed
guardianship and custody of the subject child to petitioner Svetlana
T. and authorized Svetlana T. to consent to the adoption of the
subject child without the consent of or further notice to respondent.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, respondent’s motion is
granted and the petition is dismissed.

     Memorandum: Petitioner Svetlana T. (mother) commenced this
proceeding seeking to terminate the parental rights of respondent
father pursuant to Social Services Law § 384-b. Before answering, the
father moved to dismiss the petition, contending, inter alia, that
section 384-b did not apply because the child was neither a
“destitute” nor a “dependent” child as those terms are defined by
Social Services Law article 6. Subsequent to the father’s motion, the
Wayne County Department of Social Services (DSS) orally moved to
intervene and to amend the petition to be added as a copetitioner.
DSS also moved for an order determining that it was not required to
engage in any reasonable efforts to reunite the father with the child.
The mother opposed the father’s motion to dismiss, and she requested
that the motion of DSS be granted and that her petition terminating
the father’s parental rights be granted. Family Court granted the
motion of DSS and granted “[p]etitioners [sic] . . . motion for
summary judgment,” thereby terminating the father’s parental rights,
                                 -2-                           730
                                                         CAF 13-00323

committing guardianship and custody of the child to the mother and
ordering that the mother was authorized and empowered to consent to
the adoption of the child without the consent of or further notice to
the father. We now reverse.

     Social Services Law § 384-b is entitled “Guardianship and custody
of destitute or dependent children; commitment by court order;
modification of commitment and restoration of parental rights”
(emphasis added). A destitute child is defined as a child “who is in
a state of want or suffering due to lack of sufficient food, clothing,
shelter, or medical or surgical care,” does not fit within the
definition of an abused or neglected child and is without any parent
or caretaker; “a child who is . . . absent from his or her legal
residence without the consent of his or her parent, legal guardian or
custodian”; “a child . . . who is without a place of shelter where
supervision and care are available;” or “a person who is a former
foster care youth under the age of twenty-one who was previously
placed in the care and custody of [DSS] . . . and who was discharged
from foster care . . . , [and] who has returned to foster care” (§ 371
[3] [a] - [d]). A dependent child is defined as “a child who is in
the custody of, or wholly or partly maintained by an authorized agency
or an institution, society or other organization of charitable,
eleemosynary, correctional, or reformatory character” (§ 371 [7]). It
is indisputable that the subject child is neither a destitute nor a
dependent child. Social Services Law § 384-b is thus inapplicable to
the child and may not be invoked by either the mother or DSS as a
means to terminate the father’s parental rights. We therefore reverse
the order and grant the father’s motion to dismiss the petition. We
note, however, that our determination does not leave the mother
without a remedy. She may seek to dispense with the father’s consent
to adoption pursuant to Domestic Relations Law § 111 (2) (a) (see
Matter of Julia P., 306 AD2d 937, 937-938; see also Matter of Nathon
O., 55 AD3d 995, 995-996, lv denied 11 NY3d 714; Matter of Joshua II.,
296 AD2d 646, 647-648, lv denied 98 NY2d 613).

     Based on our resolution of this case, we see no need to address
the father’s remaining contentions.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
