In re Dana Marie E.

123 Misc. 2d 112, 473 N.Y.S.2d 1008, 1983 N.Y. Misc. LEXIS 4167
CourtNew York City Family Court
DecidedNovember 16, 1983
StatusPublished
Cited by1 cases

This text of 123 Misc. 2d 112 (In re Dana Marie E.) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Dana Marie E., 123 Misc. 2d 112, 473 N.Y.S.2d 1008, 1983 N.Y. Misc. LEXIS 4167 (N.Y. Super. Ct. 1983).

Opinion

OPINION OF THE COURT

Phoebe K. Greenbaum, J.

This is an action brought pursuant to section 384-b of the Social Services Law and article 6 of the Family Court Act by the petitioner, Brooklyn Home for Children, an authorized foster care agency, for the permanent termination of parental rights of the natural parents of Dana Marie E. and Lemuell George E. (so that they may be freed for adoption). The instant proceeding was commenced on March 3, 1983 by the filing of the petitions in the Queens County Family Court.

On May 23, 1983 the respondent mother Pearl E. and respondent Stephen B., alleged putative father of Dana Marie E., did not appear and both were held to be in default. Respondent Lawrence F., alleged putative father [113]*113of Lemuell George E., appeared with his attorney and advised the court that he will contest the petition for termination of his parental rights. A new administrative directive of the Family Court effective January 31, 1983 requires that the trials of all contested termination of parental rights cases be referred to a new city-wide trial part, operating as Part III of the Foster Care Review Term at New York County Family Court. As respondents Pearl E. and Stephen B. have defaulted, the trial will only concern the termination of parental rights of Lawrence F. as the natural father of Lemuell George E. The petitioner makes this motion to challenge the “venue” of the trial of the within matter in New York County. The instant motion then only concerns docket number B.944/83 which is being contested solely by the putative father of Lemuell George E. An inquest may be held as to docket number B.943/83 in regard to the natural parents of Dana Marie E. grounded upon proper service.

By its motion, petitioner moves this court for (1) an order setting down the within matter for trial in the Queens County Family Court, and (2) a determination that “venue” of the within matter properly lies in Queens County and not New York County.

None of the other parties to the within proceeding have joined petitioner’s motion nor have they submitted any papers in opposition thereto.

Upon review and consideration of the petitioner’s motion submitted on June 28, 1983 and all other pleadings and proceedings herein, the motion is disposed of as follows:

(1) petitioner’s request for an order setting down the within matter for trial in the Family Court of Queens County is denied; and

(2) the transmittal of the within matter to a central hearing part in Family Court, New York County, for a hearing is proper and not violative of law.

Before considering the merits of petitioner’s motion, the court deems it necessary to comment upon the word “venue” as utilized by the statute relevant to the determination of the within motion.

[114]*114As the within proceeding concerns the termination of parental rights, the applicable “venue” provisions are contained in section 384-b (subd 3, par [c]) of the Social Services Law which were derived from former section 613 of the Family Court Act which was repealed on January 1, 1977.

The subject matter of former section 613 of the Family Court Act is now covered by section 384-b (subd 3, par [c]) of the Social Services Law which states: “Proceedings under this section shall be originated in the county in which the authorized agency has an office for the regular conduct of business or in which the child or his parent resides at the time of the initiation of the proceeding.” (Emphasis added.)

The court notes that a proceeding under section 384-b of the Social Services Law in the Family Court is “originated” by the filing of a petition. The word “originated” as used in section 384-b (subd 3, par [c]) may therefore be construed as referring only to the commencement of proceedings. It is thus clear that section 384-b (subd 3, par [c]) mandates only that a termination of parental rights proceeding be comjnenced in the county where the authorized agency has its place of business or where the child or his parent resides. The court finds that the requirement directing where the proceeding shall be “originated” does not include any mandate that subsequent proceedings be conducted in that county. (See Matter of Carla L., 77 Misc 2d 363, mod on other grounds 45 AD2d 375.)

Furthermore, the court finds that the general venue provisions of article 1 of the Family Court Act, which includes section 174 thereof, are not controlling in the within proceeding insofar as those sections conflict with the specific venue provisions of section 384-b of the Social Services Law. Such a conflict is prohibited by section 384-b (subd 3, par [f]) of the Social Services Law.

Six points of law in support of the motion have been advanced by petitioner’s counsel. They are treated separately in this decision, albeit, slightly out of order beginning with petitioner’s point II followed by points III, IV, I, V and VI.

[115]*115A

Petitioner’s “point II” in support of its motion is that it was within its legal right, pursuant to section 384-b (subd 3, par [c]) of the Social Services Law to file the within petitions in the Family Court of Queens County. The court does not dispute petitioner on this point and finds that petitioner is indeed an authorized foster care agency having its place of business in Queens County as is required by section 384-b (subd 3, par [c]) of the Social Services Law.

B

Petitioner’s “point III” is that the only county where the within matter shall have originated is Queens County. For the following reasons, the court finds that the within matter could have properly been originated in the Family Court of New York County by the Commissioner of Social Services for the City of New York.

Under section 384-b (subd 3, par [b]) of the Social Services Law: “A proceeding under this section may be originated by an authorized agency or by a foster parent authorized to do so pursuant to section three hundred ninety-two of this chapter or to section one thousand fifty-five of the family court act.” (Emphasis added.)

An “authorized agency” is defined by subdivision 10 of section 371 of the Social Services Law and under paragraph (b) thereof may include: “(b) Any court or any public welfare official of this state authorized by law to place out or to board out children” (emphasis added).

A clarification as to who is included under the definition stated in section 371 (subd 10, par [b]) of the Social Services Law is stated in McKinney’s Consolidated Laws of New York (Book 52A, Social Services Law, § 371, p 12, Historical Note): “References to Public Welfare Districts and Officials. Section 5 of L. 1967, c. 728, provides, inter alia, that references to public welfare districts and officials shall be deemed to mean and refer to social services districts and officials, respectively.” (Emphasis added.)

Subdivision 14 of section 2 of the Social Services Law states that: “Social services official shall mean a county commissioner of social services, a city commissioner of social services, a town social services officer or city social [116]*116services officer to whom the power or duty referred to is assigned under the provisions of this chapter. In any law where reference is made by any title to an official charged with the duty of caring for the poor in a town, city or county,

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Bluebook (online)
123 Misc. 2d 112, 473 N.Y.S.2d 1008, 1983 N.Y. Misc. LEXIS 4167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dana-marie-e-nycfamct-1983.