In re Tumari W.

In a child protective proceeding pursuant to Family Court Act article 10, the mother, Lynell W, appeals from an order of the Family Court, Richmond County (McElrath, J.), dated January 14, 2009, which, without a hearing, authorized the Administration for Children’s Services to release the subject child to his father, the nonparty Andre M.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Richmond County, for further proceedings consistent herewith.

Following an emergency removal of the subject child from his mother’s custody (see Family Ct Act § 1027), the child was placed with the Commissioner of the Administration for Children’s Services (hereinafter ACS), who placed the child in kinship foster care with a 28-year-old adult sister. At a court appearance on December 9, 2008, the mother stated that it was “acceptable to her” that the child remain with her older daughter, but she wanted ACS to explore placing the child temporarily with his father, the nonparty Andre M. She also reserved her right to request a hearing pursuant to Family Court Act § 1028 for return of the child to her. The court directed ACS to investigate the father as a possible resource. The father, who was present in court, stated that he intended to return with the child to his house in St. Thomas in the United States Virgin Islands.

At the next court appearance on January 12, 2009, the attorney for ACS recommended that it was appropriate to release the child to the father during the pendency of the neglect proceeding. There is no information in the record as to the basis of this recommendation. The mother objected to the placement of the child with his father, inter alia, on the ground that she felt his home in St. Thomas was not suitable. The attorney for the child was not present, having previously informed the court that he had injured his ankle and would not be able to appear.

Over the mother’s objection, the Family Court authorized ACS to release the subject child to his father pursuant to what it characterized as the “privilege of parole.” The mother’s application to direct the father not to remove the child from New York State was denied on the ground that the father was not a party to the neglect proceeding, and the Family Court did not “have the authority to enter an order against him.” The Family Court stayed enforcement of its order to allow the mother to seek appellate review and “allow the law guardian time to object and seek appellate review.” We reverse.

As ACS correctly concedes, the Family Court improperly authorized ACS to release the child from its care to the care of the father, who intended to take him out-of-state, over the mother’s objection, without the attorney for the child present, without conditions, and without seeking information about the father’s home in St. Thomas pursuant to the Interstate Compact on the Placement of Children (Social Services Law § 374-a [1] [hereinafter the ICPC]; see Matter of Shaida W., 85 NY2d 453 [1995]; Matter of Faison v Capozello, 50 AD3d 797 [2008]; Matter of Keanu Blue R., 292 AD2d 614 [2002]; Social Services Law § 374-a [1] [art III] [a-d]). Article VIII (a) of the ICPC states that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or guardian” (see Social Services Law § 374-a). However, that provision does not apply to the facts of this case. As noted by the Court of Appeals in Matter of Shaida W (85 NY2d 453 [1995]), the “sending agency” was ACS, not the father, since ACS, not the father, had custody.

The dissent attempts to distinguish prior decisions of this Court applying the ICPC to a parent, on the ground that those cases involved a parent “deemed of diminished parental capacity” (see Matter of Faison v Capozello, 50 AD3d 797 [2008]; Matter of Keanu Blue R., 292 AD2d 614 [2002]). However, in Matter of Faison v Capozello, the father was found to be unsuitable after an investigation pursuant to the ICPC. In Matter of Keanu Blue R., we found that the Family Court erred in releasing the child to the mother in Ohio without compliance with the ICPC. Contrary to the conclusion of the dissent, this line of cases mandates reversal.

Matter of Alfredo S. v Nassau County Dept. of Social Servs. (172 AD2d 528 [1991]), relied upon by the Family Court and the dissent, is distinguishable. In that case, the father petitioned for custody pursuant to Family Court Act article 6. However, in the instant case, the father never petitioned for legal custody, and he did not have joint or de facto custody of the child by virtue of living with the child prior to the removal of the child from the mother’s custody. Rather, his status is that of a nonparty absentee father.

The dissent asserts that the release of the child to the nonrespondent father was proper pursuant to certain advisory regulations of the ICPC, which state that “[t]he Compact does not apply whenever a court transfers the child to a non-custodial parent with respect to whom the court does not have evidence before it that such parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child” (Association of Administrators of the Interstate Compact on the Placement of Children, http:// icpc.aphsa.org/Home/regulations.asp [Regulation 3 (6) (b), eff Jul. 2, 2001]) (hereinafter regulation 3 [6] [b]). This regulation, which went into effect in 2001, “authorized [the] court to hold the ICPC inapplicable” to a parent but does not require such a result, and such a determination may be appealed (Green v Division of Family Servs., 864 A2d 921, 928 [Del 2004]). Moreover, the regulation does not prohibit the Family Court from seeking further evidence of whether the noncustodial parent, or his or her home, is fit. An issue in this case, reviewable on appeal, is whether the Family Court’s failure to seek further evidence was proper. The Family Court’s failure to seek further evidence in this case, including evidence pursuant to the ICPC, was improper. In addition, the Family Court’s failure to seek input from the attorney for the child was improper.

As noted by the dissent, there is conflicting authority among the various jurisdictions in the nation as to whether the ICPC applies to reunification of a child with a noncustodial parent (see Bester v Lake County Off. of Family & Children, 839 NE2d 143, 145, n 2 [Ind 2005]). However, New York State is squarely among those jurisdictions which apply the ICPC to a noncustodial parent (see Matter of Shaida W., 85 NY2d 453 [1995]; Matter of Faison v Capozello, 50 AD3d 797 [2008]; Matter of Keanu Blue R., 292 AD2d 614 [2002]; Matter of Crystal A., 13 Misc 3d 235, 237 [2006]).

Nevertheless, the dissent states that ACS was required to release the child to his father pursuant to regulation 3 (6) (b), since the Family Court “neither sought further information nor retained jurisdiction.” However, pursuant to statute, the Family Court was not authorized to relinquish jurisdiction over the matter, nor did it. Pursuant to Family Court Act § 1017 (2) (a), the Family Court, not ACS, placed the child with the father, based upon a determination that “the child may reside” with such “non-respondent parent.” The fact that the Family Court made this determination based upon no information in the record, other than the conclusory recommendation of ACS, is problematic.

If the Family Court were authorized to relinquish jurisdiction to ACS and a nonrespondent parent in a proceeding pursuant to Family Court Act article 10, such would also relinquish any rights the respondent parent may have to return of the child, in the event that the neglect charges were not sustained, or were found insufficient to justify removal. Indeed, the dissent envisions a procedure whereby the respondent parent, during the pendency of a neglect proceeding, would be required to cross-petition for custody to preserve his or her rights, and would be required to move for a hearing pursuant to Matter of Tropea v Tropea (87 NY2d 727 [1996]), to prevent the relocation of the child to another jurisdiction.

The statute envisions a nonrespondent parent petitioning for custody (see Family Ct Act § 1017 [2]), and there may be circumstances in such a case where resort to the ICPC may be dispensed with in the exercise of the court’s discretion (see Matter of Crystal A., 13 Misc 3d 235 [2006]; but see Matter of J.T., 22 Misc 3d 1106[A]). Indeed, newly enacted Family Court Act § 1017 (2) (a) (i) and § 1055-b (L 2008, ch 519, §§ 1, 5) expressly authorize the Family Court to grant a nonrespondent parent custody pursuant to Family Court Act article 6, and thereby conclude the Family Court’s jurisdiction pursuant to Family Court Act article 10 (see Family Ct Act § 1055-b [d]). Although these amendments took effect in March 2009, after the order appealed from was issued, they are expressive of the Legislature’s view of public policy concerns.

However, there is no requirement or mention in the statute of a respondent parent cross-petitioning for custody to preserve his or her rights to contest a petition alleging abuse or neglect.

Accordingly, we reverse the order appealed from and remit the matter to the Family Court, Richmond County, for further proceedings consistent herewith. Chambers, Lott and Austin, JJ., concur.