In re Marie B.

96 A.D.2d 1140, 467 N.Y.S.2d 454, 1983 N.Y. App. Div. LEXIS 19822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1983
• Status: Published

Opinion

Memorandum: We agree, for the reasons stated in the memorandum of the Family Court, that subdivision (e) of section 1039 of the Family Court Act is unconstitutional insofar as it provides that a finding of a violation of a condition in an order of adjournment in contemplation of dismissal (ACD) in a child abuse or neglect proceeding shall have “the same force and effect as if a fact-finding hearing had been held and the child had been found to be an abused child or a neglected child.” We add that the child has a right to be raised by his parents unless they are unfit (Matter of Sanjivini K., 47 NY2d 374, 382). This right may not be foreclosed by the parents’ consent to an ACD. Only the last sentence of subdivision (e) need be stricken, however, since it is severable from the remainder (McKinney’s Cons Laws of NY, Book 2, Constitutionality of Statutes, § 48). The valid portion of subdivision (e) permits the court, during the duration of the order for an ACD, to restore the matter to the calendar and, upon a finding of a violation of a condition, the case may then proceed in its normal course to a fact-finding hearing on the issue of abuse or neglect. In this case, however, the matter was not restored to the calendar within one year, the duration of the order, and we therefore concur with Family Court that the petition be dismissed (Family Ct Act, § 1039, subd [f]). (Appeal from order of Oneida County Family Court, Pomilio, J. — dismiss petition.) Present — Dillon, P. J., Boomer, Green, Moule and Schnepp, JJ.