Matter of Damian D. , 1 N.Y.S.3d 456 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 517854
________________________________
In the Matter of DAMIAN D.
and Another, Neglected
Children.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
TRAVIS D.,
Respondent.
PATRICIA WW.,
Appellant.
(Proceeding No. 1.) OPINION AND ORDER
________________________________
In the Matter of DAMIAN D.
and Another, Neglected
Children.
CLINTON COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Respondent;
DIXIE D.,
Respondent.
PATRICIA WW.,
Appellant.
(Proceeding No. 2.)
________________________________
Calendar Date: November 13, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.
__________
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Michelle I. Rosien, Philmont, for appellant.
Van Crockett, Clinton County Department of Social Services,
Plattsburgh, for Clinton County Department of Social Services,
respondent.
Reginald H. Bedell, Elizabethtown, attorney for the
children.
__________
Egan Jr., J.
Appeals (1) from two orders of the Family Court of Clinton
County (Lawliss, J.), entered September 23, 2013, which issued
orders of protection in favor of the subject children, and (2)
from two orders of said court, entered October 15, 2013, which,
among other things, granted petitioner's applications, in two
proceedings pursuant to Family Ct Act article 10, to continue the
placement of the subject children.
Respondent Travis D. (hereinafter the father) and Patricia
WW. (hereinafter the mother) are the parents of Damian D. (born
in 1997) and Dayinara D. (born in 1999). Pursuant to a
posthearing order entered in May 2011, the father was awarded
sole legal and physical custody of the children, and the mother
was awarded visitation with the children on two consecutive
weekends out of every three weekends – in addition to various
holiday and school vacations. The mother testified that she
exercised all of her visitations with Damian and Dayinara and
that such visits went well until November 2012, at which time her
three younger children (Damian and Dayinara's maternal half
siblings) were removed from her home and placed in foster care.
After that time, the mother continued to visit – unsupervised –
with Damian, but Dayinara, whom the mother believed to be
responsible for the maltreatment report that led to the
underlying removal, elected not to participate in such
visitations.
Thereafter, in April 2013, petitioner commenced the instant
proceedings against the father and his wife, respondent Dixie D.
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(hereinafter respondent), alleging that they had neglected
Damian, Dayinara and Dakota D. (born in 2008) – the latter of
whom was their child in common – by, among other things, allowing
the children to reside in a house where methamphetamine was being
manufactured. Pursuant to Family Ct Act § 1035 (d), the mother
was notified of these proceedings and appeared – with counsel –
as a "non-respondent parent." At the initial appearance in these
matters, Family Court granted petitioner's application to place
Damian, Dayinara and Dakota with Dakota's maternal grandparents
and issued temporary orders of protection against the father and
respondent.
As the initial appearance was concluding, Family Court,
having apparently presided over a recent Family Ct Act article 10
hearing with respect to the mother's younger children and having
concluded that supervised visitation as to those children was
warranted, inquired, "Doesn't it seem logical to limit [the
mother's] contact [with Damian and Dayinara] the same way that
she has contact with the other children?" In response, counsel
for petitioner pointed out the relevant procedural distinction –
namely, that the mother's ongoing – and unsupervised – visitation
with Damian and Dayinara was governed by a Family Ct Act article
6 order and was not the product of a Family Ct Act article 10
proceeding. The mother's counsel, noting that Damian and
Dayinara were appreciably older than the mother's other children
and, further, that the mother had been enjoying unsupervised
visitations with Damian and Dayinara "the entire time" that the
article 10 proceeding was pending as to their maternal half
siblings, specifically opposed having the mother's visitations
supervised by petitioner.1 The attorney for the children agreed,
indicating that Damian and Dayinara were "old enough in [his]
estimation" to have unsupervised visitations with the mother and,
1
Perhaps seeing the handwriting on the wall, counsel for
the mother thereafter remarked that Dakota's grandparents "would
probably be appropriate supervisors" for such visitations.
Viewing the colloquy as a whole, we do not deem counsel's
statement to be the functional equivalent of the mother
consenting to the imposition of supervised visitation (cf. Matter
of Spencer v Spencer, 85 AD3d 1244, 1244-1245 [2011]).
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in any event, expressly opposed having Dakota's grandparents act
as supervisors. Nonetheless, Family Court – sua sponte, without
prior notice and based solely upon the neglect proceeding
involving the mother's three younger children – issued a
temporary order of protection requiring the mother to stay at
least 1,000 feet away from Damian and Dayinara unless supervised
by one of petitioner's employees.
A fact-finding hearing ensued, at the conclusion of which
Family Court found that the father and respondent had neglected
the subject children.2 Family Court then held a combined
dispositional and permanency hearing, at which the mother
appeared and testified as to her visitations with Damian and
Dayinara. Thereafter, Family Court – quoting verbatim from the
permanency hearing report prepared by one of petitioner's
caseworkers – issued two combined dispositional and permanency
orders that, insofar as is relevant here, awarded the mother
supervised visitations with Damian and Dayinara "at least twice
per calendar month." In conjunction therewith, Family Court also
issued separate no-contact orders of protection in favor of
Damian and Dayinara – precluding the mother from having any
contact with those children unless supervised by petitioner. The
mother now appeals from each of the aforementioned orders.
Preliminarily, inasmuch as the underlying orders of
protection expired by their own terms in April 2014 (and
apparently have been superseded by subsequent orders), the
mother's appeals therefrom are moot and must be dismissed (see
Matter of Samantha H., 52 AD3d 894, 894 [2008]; cf. Matter of
Cheryl L. v Scott L., 68 AD3d 1381, 1381 [2009]). As for the
appeals from the combined dispositional and permanency orders,
according to counsel for the mother, a subsequent permanency
hearing was conducted in March 2014, at which time the mother
consented to entry of an order continuing the supervised
visitation provisions previously imposed upon her. However,
inasmuch as the supervised visitation restrictions remain in
effect, the fact that the mother acquiesced to the disputed
2
The mother and counsel appeared at, but did not
participate in, the fact-finding hearing.
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restrictions in order to enjoy any visitation with Damian and
Dayinara "does not foreclose her from contesting the legality of
a condition which still impacts her" (Matter of Lauren L. [Cassi
M.], 79 AD3d 1193, 1194-1195 [2010]). Accordingly, the mother's
appeals from the underlying dispositional/permanency orders are
not moot (see id. at 1194).3
The crux of the mother's argument on appeal is that Family
Court deprived her of due process when, in the context of the
instant Family Ct Act article 10 proceedings, to which she is not
a named respondent, the court sua sponte modified the terms of
the 2011 Family Ct Act article 6 order by significantly
curtailing the frequency of her visitations with Damian and
Dayinara and requiring that any such visits be supervised. In
this regard, there is no question that modification of a Family
Ct Act article 6 custody order requires "a full and comprehensive
hearing" at which a parent is to be afforded "a full and fair
opportunity to be heard" (Matter of Middlemiss v Pratt, 86 AD3d
658, 659 [2011] [internal quotation marks and citations omitted;
accord Matter of Jeffrey JJ. v Stephanie KK., 88 AD3d 1083, 1084
[2011]). There also is no question that the notice provided to
the mother as a non-respondent parent pursuant to Family Ct Act
§ 1035 (d) – although apprising her of the right to "enforce" her
Family Ct Act article 6 visitation rights in the context of the
Family Ct Act article 10 proceedings against the father and
respondent – in no way advised the mother that her visitation
rights would be at issue during the course of, or could be
restricted as a result of, the instant neglect proceedings.
Further, it is abundantly clear that, in light of the "limited
statutory role [of] and narrow rights" afforded to a non-
respondent parent under Family Ct Act § 1035 (d), the statute
cannot serve as a "back-door vehicle" via which a court may
dispense with notice and due process requirements and take
affirmative action against a non-respondent parent who has not
3
Were we to reach a contrary conclusion in this regard, we
nonetheless would address the merits given that the mother has
raised a due process challenge to the orders imposing supervised
visitation (see Matter of Telsa Z. [Denise Z.], 84 AD3d 1599,
1600 n 2 [2011], lv denied 17 NY3d 708 [2011]).
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been formally charged with wrongdoing as to the affected children
(Matter of Telsa Z. [Rickey Z.–Denise Z.], 71 AD3d 1246, 1251
[2010]).4
Assuming, without deciding, that (1) Family Court did not
misuse the notice provisions of Family Ct Act § 1035 (d) by
making factual findings against the mother and affirmatively
restricting her visitation with Damian and Dayinara, (2) the
mother – in the context of the combined dispositional and
permanency hearing – received the full evidentiary hearing to
which she was entitled (cf. Matter of Carolyn S. v Tompkins
County Dept. of Social Servs., 80 AD3d 1087, 1088 [2011]), (3) by
appearing and testifying at such hearing, the mother received her
full measure of due process, (4) the mother was not prejudiced by
the lower evidentiary standard applicable to dispositional
hearings (compare Family Ct Act § 1046 [c], with Family Ct Act §
1082 [4]), and (5) the finding of neglect as to the mother's
three other children constituted a sufficient change in
circumstances to warrant modification of the prior visitation
provisions with respect to Damian and Dayinara, we nonetheless
are persuaded that Family Court's decision to impose supervised
visitation as to Damian and Dayinara lacks a sound and
substantial basis in the record. Accordingly, that portion of
the underlying dispositional and permanency orders cannot stand.
As for the grounds upon which Family Court elected to
impose supervised visitation, although Family Court indeed was
entitled to take judicial notice of the three neglect proceedings
brought against the mother with respect to Damian and Dayinara's
maternal half siblings, two of the three proceedings predated the
2011 custody order wherein Family Court – following a hearing –
granted the mother (unsupervised) visitation with Damian and
Dayinara. Additionally, nothing in the record suggests that
4
Although we are mindful that Matter of Telsa Z. (Rickey
Z.–Denise Z.) (supra) is distinguishable on the facts, our
decision nonetheless stands for the general proposition that a
court cannot utilize the provisions of Family Ct Act § 1035 (d)
to circumvent the due process to which a parent otherwise would
be entitled before being deprived of custody or visitation.
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derivative findings of neglect were sought with respect to Damian
and Dayinara in any of the neglect proceedings brought against
the mother. To the extent that Family Court further relied upon
the mother's allegedly unaddressed mental health and anger
management issues, as well as her purported lack of stable
housing, these conclusory and unsubstantiated hearsay statements
– taken verbatim from the permanency hearing report prepared by
one of petitioner's caseworkers – are not, to our analysis, the
type of evidence that may be invoked to significantly curtail the
mother's preexisting visitation rights with Damian and Dayinara.
Finally, the sole witness to testify at the combined hearing was
the mother, who detailed her visitation history with Damian and
Dayinara, revealed that she regularly exercised her visitation
rights5 and indicated that such visits generally went well.
Although the mother acknowledged that she and her teenage
children did not always see eye to eye, the record as a whole
fails to establish that affording the mother unsupervised
visitation with Damian and Dayinara – who were 16 years old and
15 years old, respectively, at the time of the hearing – "would
be inimical to the child[ren]'s welfare" (Matter of Fish v Fish,
112 AD3d 1161, 1162 [2013] [internal quotation marks and citation
omitted]). As a result, the underlying dispositional and
permanency orders must be modified, and this matter is remitted
to Family Court for further proceedings.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.
5
As noted previously, there was a gap in the mother's
visitations with Dayinara following the removal of the mother's
younger children in November 2012.
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ORDERED that the appeals from the orders of protection
entered September 23, 2013 are dismissed, as moot, without costs.
ORDERED that the orders entered October 15, 2013 are
modified, on the law, without costs, by reversing so much thereof
as provided for supervised visitation for Patricia WW.; matter
remitted to the Family Court of Clinton County for further
proceedings not inconsistent with this Court's decision and,
pending said proceedings, the visitation terms of said orders
shall remain in effect on a temporary basis; and, as so modified,
affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court