In re Brianna L.
APPEARANCES OF COUNSEL
Matthew Wolf, Jamaica (Proskauer Rose, LLP [Erika Stallings and Margaret Dale of counsel]), for respondent-appellant.
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
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
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
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)
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. Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (id. at 714).
The appellants correctly acknowledge that the issuance of the second amended order of protection in the Criminal Court
The Criminal Procedure Law provides the Criminal Court with the power to issue orders of protection in family offense matters and to include various conditions in such orders of protection (see
Generally, if a Criminal Court order of protection bars all contact between a parent and a child, the parent may not obtain custody or visitation unless the order of protection is vacated or modified in the Criminal Court (see Matter of Secrist v Brown, 83 AD3d 1399, 1400 [2011]). The Criminal Court also has the authority to modify its orders of protection (see People v Nieves, 2 NY3d at 317; People v Zacher, 31 Misc 3d 1218[A], 2011 NY Slip Op 50721[U] [2011]). The Criminal Court has authority to determine whether its order of protection will be subject to Family Court orders, and can decline to amend an order of protection to so provide (see Matter of Marqekah B., 16 Misc 3d 1109[A], 2007 NY Slip Op 51361[U] [2007], affd 63 AD3d 1057 [2009]).
The instant appeal involves two related neglect proceedings pursuant to Family Court Act article 10. Article 10, entitled “Child Protective Proceedings,” is designed to “help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being” and provides “due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on
Against this backdrop, the appellants ask this Court to resolve the question of whether the words “Subject to Family Court” in a Criminal Court order of protection barring contact between a parent and a child permit the Family Court to vary from the terms of that order by releasing the child to the custody of that parent. For the following reasons, we are convinced that this question should be answered in the affirmative.
The Family Court is uniquely situated to issue orders that are consistent with the best interests of the children before it. For example, pursuant to
Notably, in these proceedings, counsel was appointed for the children (see generally
For these reasons, it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in a child protective proceeding, to select the dispositional alternative which is most consistent with the best interests of the children before it. The Family Court has the unique resources to effectuate and determine the best interests of the children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation. Accordingly, we hold that where, as here, a Criminal Court order of protection barring contact between a parent and a child includes a provision indicating that the order is subject to subsequent Family Court orders of custody and visitation,
We note that, in reaching its contrary determination, the Family Court relied on Little v Massari (526 F Supp 2d 371 [ED NY 2007]), an action to recover damages for false arrest. In Little, the defendant police officer was awarded summary judgment on the ground that his conduct in arresting the plaintiff for violation of a Criminal Court order of protection was reasonable, based upon its provisions and the complainant’s sworn statement. The United States District Court for the Eastern District of New York determined that the provision of the Criminal Court order of protection which stated that there were “[s]pecific conditions that defendant must observe,” and which were “subject to” Family Court orders, did not vitiate the officer’s probable cause, since the word “subject to” implied that there “might be more prohibitions imposed on plaintiff by the Family Court—conditions that plaintiff ‘must observe’—not less” (id. at 375-376). The federal court further noted that the officer had no knowledge of the terms of the relevant Family Court orders, and was not obligated to investigate whether there were Family Court orders which contradicted the terms of the Criminal Court order of protection.
The Family Court’s reliance upon Little was misplaced. Little expressed no opinion as to the authority of the Family Court, which was not an issue before the federal court. In any event, the federal court was without authority to rule on the question presented in this case. Thus, we are not persuaded that Little requires a different result.
Accordingly, the order of disposition is reversed, on the law.
Skelos, J.P., Florio and Hall, JJ., concur.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements.