In re Brianna L.

103 A.D.3d 181, 956 N.Y.S.2d 518

This text of 103 A.D.3d 181 (In re Brianna L.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Brianna L., 103 A.D.3d 181, 956 N.Y.S.2d 518 (N.Y. Ct. App. 2012).

Opinion

OPINION OF THE COURT

Leventhal, J.

The novel issue we address on this appeal is whether a Criminal Court order of protection which bars contact between a [183]*183parent and a child, but includes a provision stating that it is subject to subsequent Family Court orders of custody and visitation, permits the Family Court to release the child to the custody of that parent. For the reasons discussed below, we hold that a Criminal Court order of protection which includes such a provision permits the Family Court to release the child to the custody of that parent where, as here, it determines that such release would be in the best interests of the child.

In December 2011, the mother was arrested and later charged with, inter alia, assault in the second degree for allegedly beating her son Elijah L., who was then six years old. Thereafter, the Administration for Children’s Services (hereinafter ACS) commenced these neglect proceedings against the mother, alleging that she had neglected Elijah by inflicting excessive corporal punishment on him and, as a result, had derivatively neglected her daughter, Brianna L., who was then eight years old.

On February 14, 2012, in Criminal Court, Queens County, the mother entered a plea of guilty to endangering the welfare of a child, and was sentenced to a conditional discharge, with the requirement that she complete ACS’s service plan, which included completion of a parenting skills course and an anger management program. A final order of protection (hereinafter the order of protection) was issued by the Criminal Court, barring the mother from any contact with Elijah until February 13, 2017.

On March 12, 2012, in these neglect proceedings, the mother consented to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a), and a finding of neglect was entered with respect to the subject children. At a dispositional hearing which commenced on April 23, 2012, ACS provided the Family Court with an investigation and report (hereinafter the I&R). The I&R stated that the mother had cooperated with all services, completed a parenting skills course and an anger management program, and “was capable of caring for the children.” The matter was adjourned to allow the parties to seek an amendment of the order of protection.

On May 8, 2012, during the continued dispositional hearing, the parties presented the Family Court with an amended order of protection (hereinafter the amended order of protection) dated May 7, 2012. Although the amended order of protection continued to bar the mother from having any contact with Elijah, it included the words “Subject to Family Court.”

In response, the Family Court stated that, since the Criminal Court had issued a “full stay away order of protection,” it was [184]*184“the Criminal Court’s intention” that the mother could not have unsupervised contact with Elijah until 2017. ACS recommended releasing Elijah to his father, and releasing Brianna to the mother. However, the attorney for the children objected to limiting the mother’s contact with Elijah to supervised visitation and advocated against separating the children. In addition, the attorney for the children stated “perhaps we do need the clarification ... of what exactly . . . the language in the Criminal Court order of protection is saying, [what] ‘subject to Family Court’ actually means.”

In a decision dated May 21, 2012, the Family Court stated that the phrase, “ ‘Subject to Family Court’ as handwritten onto the [amended order of protection] is shorthand for ‘subject to subsequent Family Court orders of custody and visitation’ ” (Matter of B.L. [M.A.], 36 Misc 3d 578, 582 [2012]). However, the Family Court concluded that the language “ ‘subject to subsequent Family Court orders of custody and visitation’ ” did not give the court “jurisdiction to, in essence, overrule the Criminal Court, and return custody of the protected party to the [mother]” (id. at 582). Relying upon Little v Massari (526 F Supp 2d 371 [ED NY 2007]), the Family Court held that it could only impose additional prohibitions against the mother, not less. The Family Court suggested that the parties return to Criminal Court to ask for another amended order of protection, deleting the “stay-away” provisions barring the mother from having any contact with Elijah.

Although the Family Court found that it served the best interests of the children to return them to their mother, it determined that such a disposition was precluded by the amended order of protection and, therefore, Elijah had to be released to the father. The court further found that, since it was not in the best interests of the children to separate them, both children should be released to the father. The decision indicated that the court would grant the mother visitation with Brianna, supervised or unsupervised, in ACS’s discretion, and that the mother’s contact with Elijah was to be limited to supervised visitation (Matter of B.L. [M.A.], 36 Misc 3d at 582).

In an order of disposition dated May 22, 2012, the Family Court, inter alia, released the subject children to the custody of their father, limited the mother’s contact with Elijah to supervised visitation, and prohibited any unsupervised or overnight visitation between the mother and Elijah. The children and the mother (hereinafter together the appellants) [185]*185separately appeal and argue that, by making the amended order of protection “Subject to Family Court,” the Criminal Court expressly permitted the Family Court to issue orders it deemed appropriate, including releasing Elijah to the custody of the mother. The appellants contend that the children should be released to the custody of the mother or, in the alternative, the matter should be remitted to the Family Court for a new determination based upon the best interests of the children.

In August 2012, after the parties filed their respective notices of appeal, the mother moved to modify the order of disposition in order to transfer custody of the subject children from the father to her. In support of her motion, she submitted a second amended order of protection from the Criminal Court. The second amended order of protection, dated August 9, 2012, deleted all of the problematic stay-away provisions. In addition, in lieu of the handwritten notation “Subject to Family Court,” the second amended order of protection contained the following provision: “Subject to all subsequent Family Court orders of visitation and custody defendant must observe for the purposes of protection.” By letters dated September 6, 2012, and September 14, 2012, the appellants informed this Court that, on September 5, 2012, the Family Court, in effect, modified the order of disposition so as to release the children to the custody of the mother. The appellants acknowledge that the release of the children to their mother has rendered their appeals academic. However, they request this Court to decide the issue of whether the words “Subject to Family Court” in a Criminal Court order of protection barring all contact between a parent and a child authorizes the Family Court to release the child to the custody of that parent, pursuant to the exception to the mootness doctrine, on the ground that it is a recurring issue of public importance typically evading review.

As an initial matter, it is necessary to address whether this appeal became moot after the Criminal Court issued the second amended order of protection dated August 9, 2012.

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In re Lucinda R.
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In re B.L.
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Matter of Marqekah B.
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Bluebook (online)
103 A.D.3d 181, 956 N.Y.S.2d 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brianna-l-nyappdiv-2012.