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

769.1
CAF 16-00175
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF JAMIE J.
-------------------------------------------
WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES,           OPINION AND ORDER
PETITIONER-RESPONDENT;

MICHELLE E.C., RESPONDENT-APPELLANT.


LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., GENEVA (KATHARINE F. WOODS
OF COUNSEL), FOR RESPONDENT-APPELLANT.

GARY LEE BENNETT, LYONS, FOR PETITIONER-RESPONDENT.

SEAN D. LAIR, ATTORNEY FOR THE CHILD, SODUS.

JAMES S. HINMAN, P.C., ROCHESTER (JAMES S. HINMAN OF COUNSEL), FOR
INTERVENORS-RESPONDENTS.

ROBERT A. DINIERI, CLYDE, FOR INTERESTED PARTY DAVID URBAS.


     Appeal from an order of the Family Court, Wayne County (Daniel G.
Barrett, J.), entered January 26, 2016 in a proceeding pursuant to the
Family Court Act. The order, inter alia, continued the placement of
the subject child with petitioner.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Opinion by SCUDDER, J.:

     We review, as a matter of first impression at the appellate
level, whether Family Court retains subject matter jurisdiction to
conduct a permanency hearing pursuant to the provisions of Family
Court Act article 10-A where, as here, the petition pursuant to Family
Court Act article 10 alleging that the child is a neglected child has
been dismissed. We conclude that it does.

                                  I

      On November 10, 2014, the court directed the temporary removal
of respondent mother’s one-week-old child from her care pursuant to
Family Court Act § 1022. Petitioner commenced a proceeding against
the mother pursuant to Family Court Act article 10, alleging that the
child was a neglected child on the ground that the child was at
imminent risk of harm based upon the mother’s alleged inability to
                                 -2-                           769.1
                                                         CAF 16-00175

provide proper care for the child due to, inter alia, a lack of
housing and the mother’s inability to care for her own medical needs.
Following a permanency hearing in June 2015, the court granted
petitioner’s application for continued placement “until the completion
of the next permanency hearing or pending further orders of this
court” and directed that the mother remain under the supervision of
petitioner. The fact-finding hearing on the neglect petition was
conducted on December 1 and 2, 2015, more than one year after the
petition was filed. The court denied petitioner’s application to
amend the petition to conform the pleadings to the proof pursuant to
section 1051 (b) and determined that “any offer of proof beyond
November 10, 2014 would not be relevant in the fact-finding but may be
relevant at the Permanency Planning Hearing and/or Dispositional
Hearing.” The court dismissed the petition by decision dated December
21, 2015 and order entered January 19, 2016 on the ground that, with
respect to the one week in which the child was in the mother’s care,
“petitioner has failed to prove by a preponderance of the evidence
that the child’s physical, mental or emotional condition was impaired
or in imminent danger of being impaired. Even if that were proven[,]
[p]etitioner has failed to prove by a preponderance of the evidence
that [the mother] failed to exercise a minimum degree of care.”
Petitioner did not appeal from that order.

     Thereafter, the parties engaged in correspondence with the court
with respect to whether the court had authority to proceed with the
permanency hearing scheduled for January 19, 2016 in light of the
order dismissing the neglect petition. The mother sought by order to
show cause an order dismissing the permanency petition and vacating
the temporary order placing the child with petitioner. That
application was opposed by petitioner, the child’s father, and the
Attorney for the Child on the ground that the court had jurisdiction
to conduct the permanency hearing pursuant to Family Court Act § 1088.
The court denied the requested relief in the mother’s order to show
cause. After petitioner presented evidence at the permanency hearing,
the mother consented to an order continuing placement of the child
with petitioner on the ground that the best interests and safety of
the child would be served by continued placement because the child
would be at risk of neglect if returned to the mother. She
nevertheless reserved her right to challenge the court’s exercise of
subject matter jurisdiction to conduct a permanency hearing after the
neglect petition had been dismissed. We note in any event that “[i]t
is blackletter law that a[n order] rendered without subject matter
jurisdiction is void, and that the defect may be raised at any time
and may not be waived” (Lacks v Lacks, 41 NY2d 71, 75, rearg denied 41
NY2d 862). Thus, to that extent, this appeal is properly before us.

                                  II

     We reject the mother’s contention on appeal that the court lacked
subject matter jurisdiction to conduct the permanency hearing
following dismissal of the neglect petition, based upon our
interpretation of the statutory language contained in article 10-A of
the Family Court Act.
                                 -3-                           769.1
                                                         CAF 16-00175

     Article 10-A of the Family Court Act was enacted in 2005 “to
establish uniform procedures for permanency hearings for all children
who are placed in foster care . . . pursuant to[, inter alia,] section
one thousand twenty-two . . . of this act . . . It is meant to provide
children placed out of their homes timely and effective judicial
review that promotes permanency, safety and well-being in their lives”
(§ 1086). It is clear that, in the event that the court dismisses a
petition alleging that a child is an abused or neglected child, the
court lacks jurisdiction to impose a dispositional remedy pursuant to
sections 1052 through 1057 (see Matter of Rasha B., 139 AD2d 962, 963;
see also Matter of Lebraun H. [Brenda H.], 111 AD3d 1439, 1440).
Nevertheless, article 10-A, which applies only to those matters in
which a child has been placed in petitioner’s custody (see § 1086; cf.
Lebraun H., 111 AD3d at 1439; Rasha B., 139 AD2d at 963), explicitly
provides that “the court shall maintain jurisdiction over the case
until the child is discharged from placement” (§ 1088). It further
provides that the court “shall” make a determination whether the
placement shall be terminated or whether the permanency goal should be
approved or modified, based “upon the proof adduced [at the permanency
hearing] . . . and 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” (§ 1089 [d] [1], [2] [i] [emphasis
added]).

     We note that there is no provision in Family Court Act article
10-A that provides for the termination of the child’s placement with
petitioner when a neglect or abuse petition is dismissed. We further
note that the authority cited by the dissent with respect to the
legislative scheme of article 10 predated the enactment of article
10-A (see Matter of Edwin SS., 302 AD2d 754, 754-755; Matter of Amanda
SS., 284 AD2d 588, 589, lv denied 97 NY2d 606; Matter of Brandon C.,
237 AD2d 821, 822; Matter of Anthony YY., 202 AD2d 740, 741; Matter of
Dina V., 86 AD2d 875, 875), or did not implicate the provisions of
article 10-A (see Lebraun H., 111 AD3d at 1440). Thus, we
respectfully disagree with our dissenting colleagues that article 10-A
did not provide for the continuation of the court’s subject matter
jurisdiction, despite the dismissal of the article 10 petition.

     We recognize that the silence of the Legislature with respect to
the scenario presented in this case may be interpreted in either of
two ways: if the Legislature had intended that the placement end upon
the dismissal of the article 10 petition, it would have said so; or,
based on the absence of a provision addressing the scenario at issue
here, the Legislature did not intend to overturn the long-established
rule of law with respect to article 10 that a temporary placement
under, inter alia, section 1022 ended with the dismissal of a neglect
or abuse petition inasmuch as the court lacked jurisdiction to impose
a dispositional order pursuant to article 10 (see McKinney’s Cons Laws
of NY, Book 1, Statutes § 74). Nevertheless, “[a] statute must be
read and given effect as it is written by the Legislature, not as the
court may think it should or would have been written if the
Legislature had envisaged all of the problems and complications which
might arise in the course of its administration” (Statutes § 73,
                                 -4-                           769.1
                                                         CAF 16-00175

Comment at 148; see Murphy v Board of Educ. of N. Bellmore Union Free
Sch. Dist., 104 AD2d 796, 798, affd 64 NY2d 856). We therefore
conclude, based upon the plain language of the provisions of Family
Court Act article 10-A, that the court obtains jurisdiction as a
result of a placement with petitioner pursuant to section 1022 (see
§ 1088), and that the court is required to make a determination
whether to return the child to the parent based upon the best
interests and safety of the child, including whether the child would
be at risk of abuse or neglect if the child were to return to the
parent (see § 1089 [d] [1], [2] [i]). Thus, we conclude that the
court retained jurisdiction to conduct the permanency hearing despite
the dismissal of the neglect petition. Moreover, our interpretation
of the statutory provisions of article 10-A comports with the
longstanding principle that “an overarching consideration always
obtains for children to be returned to biological parents, if at all
possible and responsible . . . When that cannot be done, the emphasis
shifts to securing permanent, stable solutions and settings” (Matter
of Dale P., 84 NY2d 72, 77).

                                 III

     The mother also contends, inter alia, that her substantive due
process rights were violated by the continued placement of the child
with petitioner in the absence of a finding of neglect. Although we
share the concern of our dissenting colleagues that the mother’s right
to raise her child must be protected, that contention is not properly
before us on this appeal because the order was entered upon the
consent of the parties (see Matter of Adney v Morton, 68 AD3d 1742,
1742), and the mother retained the right to challenge on appeal only
the court’s exercise of subject matter jurisdiction to conduct a
permanency hearing. If the mother’s contention was properly before
us, we would agree with our dissenting colleagues that the contention
was preserved for our review, but we would nevertheless reject it.
Were we to review the mother’s contention that she cannot be deprived
of the right to raise her child in the absence of a finding of
neglect, we would conclude that her substantive due process rights
were protected by the provisions of Family Court Act article 10-A.

     It is well established that “[f]undamental constitutional
principles of due process and protected privacy prohibit governmental
interference with the liberty of a parent to supervise and rear a
child except upon a showing of overriding necessity . . . [T]he State
may not deprive a natural parent of the right to the care and custody
of a child absent a demonstration of[, inter alia], unfitness . . .
Legislation which authorizes the removal of a child from the parent
without the requisite showing of such extraordinary circumstances
constitutes an impermissible abridgement of fundamental parental
rights” (Matter of Marie B., 62 NY2d 352, 358; see Santosky v Kramer,
455 US 745, 753). Because the court was required to determine,
following a hearing, whether the child would be at risk of abuse or
neglect if returned to the mother (see Family Court Act § 1089 [d]),
and the evidence at the hearing clearly supported the court’s
determination that the child would be at such a risk, we would
conclude that the requisite “overriding necessity” was established
                                   -5-                            769.1
                                                            CAF 16-00175

here (Marie B., 62 NY2d at 358), and thus that the mother’s
substantive due process rights were not violated.

                                    IV

     Accordingly, we conclude that the order determining that     the best
interests of the child would be served by continued placement     in
petitioner’s custody on the ground that the child was at risk     of abuse
or neglect in the event she was returned to the mother should     be
affirmed.

     NEMOYER and CURRAN, JJ., concur with SCUDDER, J.; WHALEN, P.J.,
dissents and votes to vacate the order in accordance with the
following Opinion, in which SMITH, J., concurs:

     We respectfully dissent. Petitioner commenced this proceeding
pursuant to Family Court Act article 10 alleging, inter alia, that the
subject child was neglected by respondent mother. Following a fact-
finding hearing, Family Court concluded that petitioner failed to meet
its burden of establishing neglect by a preponderance of the evidence
and dismissed the petition. It is well established that, “[i]f the
court finds that the facts adduced at the hearing are insufficient to
support the petition, as was the case here, that is the end of the
matter” (Matter of Rasha B., 139 AD2d 962, 962 [emphasis added]).
Pursuant to the legislative scheme of article 10, absent a finding of
abuse or neglect, the court lacks any jurisdictional basis to block,
delay, or impose conditions on the return of the child (see Matter of
Amanda SS., 284 AD2d 588, 589, lv denied 97 NY2d 606; Matter of
Brandon C., 237 AD2d 821, 822; Matter of Dina V., 86 AD2d 875, 875;
see also Matter of Lebraun H. [Brenda H.], 111 AD3d 1439, 1440; Matter
of Edwin SS., 302 AD2d 754, 754-755; Matter of Anthony YY., 202 AD2d
740, 741).

     We cannot agree with the majority that the enactment of Family
Court Act article 10-A abrogated that settled law and extended the
subject matter jurisdiction of Family Court beyond the dismissal of
the neglect petition. The jurisdictional provision of article 10-A,
section 1088, provides in relevant part that, “[i]f a child is placed
pursuant to section . . . one thousand twenty-two . . . of this act,
. . . 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.” It is undisputed that the child
was placed pursuant to section 1022, and we agree with the majority
that the events triggering the termination of the court’s article 10-A
jurisdiction did not occur, i.e., the child was not discharged from
placement (see § 1089 [d] [1]), and pursuant to a prior permanency
hearing order the mother was under the supervision of petitioner,
subject to an order of protection, and receiving services.

     The language of section 1088, considered in isolation, appears to
confer continuing jurisdiction regardless of the outcome of the
underlying article 10 proceeding. We are mindful that, in accordance
with established rules of statutory construction, we must construe the
                                 -6-                           769.1
                                                         CAF 16-00175

language of the statute “so as to give effect to the plain meaning of
the words used” (Patrolmen’s Benevolent Assn. of City of N.Y. v City
of New York, 41 NY2d 205, 208). At the same time, however, we
conclude that, under the circumstances here, giving effect to the
“plain language . . . would require us to interpret the statute in a
manner that would render it unconstitutional” (Pines v State of New
York, 115 AD3d 80, 92, appeal dismissed 23 NY3d 982; see People v
Couser, 258 AD2d 74, 80, affd 94 NY2d 631; McKinney’s Cons Laws of NY,
Book 1, Statutes § 150 [c]). The majority’s application of the plain
language of Family Court Act § 1088 effectively sanctions the use of
the temporary order issued in an ex parte proceeding (see § 1022 [a]
[i]) as the jurisdictional predicate for petitioner’s ongoing, open-
ended intervention in the parent-child relationship after the neglect
petition was dismissed on the merits.

     We agree with the mother that, under these circumstances, the
court’s exercise of jurisdiction pursuant to article 10-A resulted in
the violation of her fundamental right to raise her child. As a
preliminary matter, we do not agree with the majority that the
mother’s due process contention is not properly before us. Throughout
the Family Court proceeding, the mother consistently and repeatedly
argued that, following the dismissal of the neglect petition, the
failure to terminate the subject child’s foster care placement and
return her to the mother’s care constituted a violation of the
mother’s due process right to raise the child without interference
from petitioner or the court.

     As the majority acknowledges, “ ‘the interest of parents in the
care, custody and control of their children . . . is perhaps the
oldest of the fundamental liberty interests,’ and any infringement of
that right ‘comes with an obvious cost’ ” (Matter of Brooke S.B. v
Elizabeth A.C.C., 28 NY3d 1, 10, quoting Troxel v Granville, 530 US
57, 64-65). Moreover, “[t]he fundamental liberty interest of natural
parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State” (Santosky v Kramer, 455
US 745, 753). Here, the subject child was removed from the mother’s
care pursuant to a temporary ex parte order, following which a hearing
was conducted, no adjudication of neglect was made, and the neglect
petition was dismissed on the merits. Construing article 10-A as
authorizing the continued placement of the subject child, premised
entirely upon the initial removal without the requisite showing of
neglect or other extraordinary circumstances (see Matter of Bennett v
Jeffreys, 40 NY2d 543, 546), clearly results in an abridgment of the
mother’s fundamental parental rights (see Matter of Marie B., 62 NY2d
352, 358).

     Accordingly, for the foregoing reasons, we conclude that the
court lacked subject matter jurisdiction to enter the permanency
hearing order on appeal, and the order therefore should be vacated.

Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
