OPINION OF THE COURT
The primary issue raised in these appeals is whether Family Court properly exercised temporary emergency jurisdiction over the subject children pursuant to Domestic Relations Law § 76-c (3). Kenneth M.Y. and Rita S., the parents of the subject children (hereafter, parents), are the respondents in appeal No. 1 and two of the four respondents in appeal No. 2. In appeal No.
Factual Background and Procedural History
This matter involves multiple proceedings commenced in New York and New Mexico by various and overlapping parties, substantial motion practice, and numerous orders entered in New York and New Mexico. Although the appeals are limited to the neglect proceeding commenced by DSS in New York, an overview of the factual background and procedural history is necessary in order to assess the propriety of Family Court’s assertion of temporary emergency jurisdiction pursuant to Domestic Relations Law § 76-c (3).
Respondent Kenneth M.Y. (hereafter, father), the biological father of the children, married respondent Rita S. (hereafter, stepmother), after the children’s biological mother died in September 2001. The stepmother subsequently adopted the children. At some time between February 2007 and November 2007, the parents moved with the children from Pennsylvania to New Mexico.
On August 7, 2008, the parents were arrested and were each charged with seven counts of child abuse with respect to the children. The charges stemmed from allegations that the parents left Kelly and Colleen, then 15 years old, and Michaela, then 12 years old, unsupervised in a bug-infested trailer miles away from the family residence, with limited supplies and inadequate food for a period of six to eight weeks. It was further alleged that the parents, as a form of discipline, had confined
As a result of the criminal charges, a magistrate court in New Mexico ordered the parents to avoid all contact with the children. In light of the no-contact order, on August 11, 2008 the parents placed the children in the care of their “maternal step-aunt and uncle” (hereafter, aunt and uncle), Robin S. and Paul S., who are respondents in appeal No. 2. Robin S. signed a “safety contract” with the New Mexico Children, Youth and Families Department (CYFD), which states that the parents voluntarily placed the children in the care of the aunt and uncle and that the parents were “still legally responsible for the [children’s] well-being.” Robin S. agreed to prohibit any contact between the parents and the children and to advise the Dona Ana County District Attorney’s Office in the event that the parents attempted to remove the children from her care or otherwise to contact the children in any way. Robin S. transported the children to her home in Chautauqua County, New York.
By letter dated September 22, 2008, CYFD notified the parents that it had closed its file concerning the children. The letter further stated that
“[t]he Department believes that the voluntary placement of the children with Robin S[.] was in the best interests of the children. However, [the parents] are free to make changes in that voluntary placement if they choose to as they remain the legal custodians of their children. The Department has no legal authority with respect to the children at this time. The safety contract between the Department and Robin S[.] was for placement purposes and does not prevent [the parents] from making changes to the children’s placement.”
According to the parents, they provided a copy of that letter to the aunt and uncle and notified them of their “intent to revoke the temporary placement of the minor children in their care and place the minor children with an appropriate guardian.” The aunt and uncle refused to return the children, however, and instead filed a petition in Family Court seeking custody of the children.
On October 1, 2008, the parents were indicted in New Mexico on six counts each of felony abuse of a child in violation of New
“[a]buse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be:
“(1) placed in a situation that may endanger the child’s life or health;
“(2) tortured, cruelly confined or cruelly punished; or
“(3) exposed to the inclemency of the weather.”
On November 5, 2008, the parents filed a “Petition to Determine Custody Pursuant to the [Uniform Child Custody Jurisdiction and Enforcement Act]” (hereafter, UCCJEA) in District Court in New Mexico (hereafter, New Mexico court) against the aunt and uncle. The petition alleged, inter alia, that the parents have resided in New Mexico since February 2007, that New Mexico is the home state of the children, and that the parents had placed the children with the aunt and uncle on a temporary basis “until a more suitable placement could be made or until [the parents’] conditions of release were modified or disposed of so that the children could be reunited with them.” By their petition, the parents sought to place the children in the care and custody of a different temporary guardian. The parents thus sought an order confirming that they are the legal guardians of the children, and appointing a temporary guardian for the minor children until the criminal charges against them were resolved or their conditions of release were modified.
Two days later, Family Court issued a temporary order of custody asserting temporary emergency jurisdiction pursuant to Domestic Relations Law § 76-c and granting temporary custody of the children to the aunt and uncle. DSS thereafter commenced the instant neglect proceeding in Family Court by petition filed November 13, 2008, alleging that the parents had neglected each of the children. At a Family Court appearance on November 24, 2008, an attorney for the parents appeared for the limited purpose of contesting jurisdiction, asserting that the parents are residents of New Mexico, that the alleged neglect took place in New Mexico, and that the children remain residents of New Mexico. Family Court continued to assert temporary emergency jurisdiction over the matter.
On December 10, 2008, the New Mexico court issued an “Order Assuming Jurisdiction.” The New Mexico court determined
“[w]hat concerns me is, apparently, there is no neglect proceeding in the State of New Mexico. There are criminal proceedings against these parents, but for whatever reason, there was no neglect proceeding . . . [W]ith criminal charges pending, and the children being the ones who would be put in the position of testifying, should there be a criminal trial, . . . the children are left with no legal remedies. There hasn’t even been a law guardian appointed . . . for these children in the State of New Mexico. And the parents are given full authority to do whatever, and place these children wherever they so choose.”
By order entered January 9, 2009, the New Mexico court approved the home study and ordered the immediate transfer of the children to the Ohio guardians. The New Mexico court reiterated that the parents “are the sole legal guardians of the minor children and maintain their constitutional right to management and control of their minor children,” and approved “[t]he parents’ selection of placement guardian for their minor
DSS thereafter sought an award of temporary custody of the children. In support thereof, DSS submitted an affidavit of a psychologist who had counseled each of the children. The psychologist averred that the children “have related very credible stories of child abuse and neglect,” and that the parents demonstrated a “disturbing pattern of isolating these children from each other, from children their age, and from their mother’s relatives.” With respect to the proposed move to Ohio, the psychologist averred that
“[a]ny change in placement for the [children] that is instigated by their father or adoptive mother carries the implicit message to these girls that they are still under the control of their father, and therefore still at risk for abuse and maltreatment. . . Removing them from an emotionally secure family environment, the friends they have recently established, and a school environment which has been affirming for them, must be considered a further emotional deprivation for these girls, and a demonstration to the girls that they remain at risk of capricious, abusive and insensitive treatment by their father. Accordingly, by generating a constant state of anxiety and uncertainty for them, such a move would result in a perpetuation of the emotional abuse and deprivation that these children suffered under the care of their father and adoptive mother.”
Family Court granted temporary custody of the children to DSS, concluding that the basis for asserting emergency jurisdiction continued to exist. Family Court explained that, “[w]hen there is a placement out of state in a situation where parents are facing criminal charges, and there is no underlying custody order, and no law guardian appointed for the children, . . . then the children are left without protection, plain and simple.”
At the fact-finding hearing on the neglect petition, DSS introduced testimony from each of the children as well as from the maternal step-aunt, Robin S., and the children’s psychologist, and Family Court received in evidence records from the
By the order in appeal No. 1, Family Court implicitly denied the parents5 motion to dismiss the neglect proceeding by issuing an order of fact-finding and disposition, which determined that the parents neglected each of the four children, ordered that the children be placed in the custody of DSS, and adopted the permanency plan proposed by DSS. By the corrected order in appeal No. 2, Family Court, inter alia, denied the parents’ motion to vacate the order of fact-finding and disposition.
Discussion
We note at the outset that the two older children have attained the age of 18 during the pendency of these appeals, and we therefore dismiss as moot the appeals insofar as they concern those two children (see Matter of Anthony M., 56 AD3d 1124 [2008], lv denied 12 NY3d 702 [2009]).
Initially, we agree with the parents that, absent the exercise of temporary emergency jurisdiction, Family Court would lack subject matter jurisdiction over the neglect proceeding. Pursuant to New York’s version of the UCCJEA (Domestic Relations Law art 5-A), Domestic Relations Law § 76 (1) “is the exclusive jurisdictional basis for making a child custody determination by a court of this state” (§ 76 [2]). A “[c]hild custody determination” is defined as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order” (§ 75-a [3]).
Domestic Relations Law § 76 (1) provides in relevant part that,
“[e]xcept as otherwise provided in section [76-c] of this title [pertaining to temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if:
“(a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceedPage 86ing and the child is absent from this state but a parent or person acting as a parent continues to live in this state . . .
A child’s “[hjome state” is “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (§ 75-a [7]). The UCCJEA broadly defines “[c]hild custody proceeding” as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue,” including “a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear” (§ 75-a [4] [emphasis added]).
Here, the neglect proceeding commenced by DSS falls within the UCCJEA’s expansive definition of a child custody proceeding {see Domestic Relations Law § 75-a [4]). Further, there is no question that New Mexico, not New York, was the home state of the children at the time of commencement of the neglect proceeding. When the neglect proceeding was commenced in November 2008, the children had been living in New York for only three months. Prior to that time, the children lived with the parents in New Mexico for at least 10 consecutive months, i.e., from November 2007 until August 2008. Thus, New Mexico remained the home state of the children when the neglect proceeding was commenced in New York, and Family Court lacked jurisdiction to make an initial child custody determination (see § 76 [1] [a]; [2]; see also Matter of Gharachorloo v Akhavan, 67 AD3d 1013 [2009]).
In addition, Domestic Relations Law § 76-e (1) states that,
“[e]xcept as otherwise provided in section [76-c] of this title[, i.e., temporary emergency jurisdiction], a court of this state may not exercise its jurisdiction under this title if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child[ren] has been commenced in a court of another state having jurisdiction substantially in conformity with this article . . . .”
Here, at the time of commencement of the neglect proceeding in New York, the parents had already commenced a custody proceeding in New Mexico. Thus, inasmuch as a custody proceeding was pending in the children’s home state when the neglect petition was filed, New York was precluded from exercis
We conclude, however, that Family Court properly exercised temporary emergency jurisdiction pursuant to Domestic Relations Law § 76-c. In the absence of subject matter jurisdiction pursuant to section 76 (1), section 76-c provides that a New York court has “temporary emergency jurisdiction if the child[ren are] present in this state and the child[ren] ha[ve] been abandoned or it is necessary in an emergency to protect the child[ren], a sibling or parent of the child[ren]” (§ 76-c [1]; see Matter of Hearne v Hearne, 61 AD3d 758, 759 [2009]). There is no question that the children were present in New York at all relevant times in which Family Court exercised temporary emergency jurisdiction. We are of course mindful that
“the mere physical presence of the child[ren] in this [s]tate is not a sufficient basis per se for the exercise of jurisdiction . . . There must, in addition, be an emergency that is real and immediate, and of such a nature as to require [s]tate intervention to protect the child[ren] from imminent physical or emotional danger” (Matter of Severio P. v Donald Y., 128 Misc 2d 539, 542 [1985]; see generally Matter of Vanessa E., 190 AD2d 134, 137 [1993]; Matter of Michael P. v Diana G., 156 AD2d 59, 66 [1990], lv denied 75 NY2d 1003 [1990]; De Passe v De Passe, 70 AD2d 473, 474-475 [1979]).
The duration of an order rendered pursuant to temporary emergency jurisdiction depends upon whether there is an enforceable child custody determination or a child custody proceeding pending in a court with jurisdiction (see Matter of Callahan v Smith, 23 AD3d 957, 959 n 2 [2005]; compare Domestic Relations Law § 76-c [2] with [3]). Here, a child custody proceeding had been commenced in New Mexico when Family Court first asserted temporary emergency jurisdiction. Thus, Family Court’s exercise of temporary emergency jurisdiction is governed by section 76-c (3), which provides that
“any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections [76] through [76-b] of this title. The order issued in this state remainsPage 88in effect until an order is obtained from the other state within the period specified or the period expires, provided, however, that where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections [76] through [76-b] of this title has taken steps to assure the protection of the child.”
In this case, Family Court first exercised temporary emergency jurisdiction on November 7, 2008, when it issued a temporary order of custody in the proceeding commenced by the aunt and uncle. In our view, there is no question that an emergency existed at that point in time. On September 22, 2008, CYFD notified the parents’ attorney that it had closed its file concerning the children and that the parents, as the “legal custodians of their children,” were “free to make changes in th[eir] voluntary placement.” Shortly thereafter, the parents sent the stepmother’s father, who lived with them, to New York in an attempt to take the children to an undisclosed address in New Mexico. On November 5, 2008, the parents commenced a custody proceeding in New Mexico seeking, inter alia, to place the children in the care and custody of yet another temporary guardian. According to the aunt and uncle, the parents also made “a threat . . . immediately before the [New Mexico] Grand Jury Proceedings where the children were told that they would be taken to an unknown location.” The parents initially sought to appoint the father’s office manager as temporary guardian for the children. They then nominated the Ohio guardians, allegedly “long time and close friends of the family,” as the temporary guardians of the children. The children told their attorneys and Family Court that they had never met the Ohio guardians. We thus conclude that Family Court properly acted to protect the children from imminent danger, i.e., the likelihood of returning the children to the home at which the abuse and neglect occurred or to another guardian under the control of the parents. At that point in time, no New Mexico court had issued an order protecting the children, and CYFD — the New Mexico equivalent of DSS — had determined that it had “no legal authority with respect to the children.”
The orders challenged on appeal, however, were issued after the parents had obtained two orders in New Mexico: (1) the December 10, 2008 order assuming jurisdiction, and (2) the
Here, the parents have each been indicted for six counts of felony child abuse in New Mexico as a result of their conduct in, inter alia, locking the children in a garage for days or weeks at a time and abandoning three of the four children in a trailer miles from the family residence for six to eight weeks in the summer of 2008. The police report filed in New Mexico states that the trailer was “not suitable for teenagers to be living in” and contained only a single chair and no beds. The father locked the trailer door from the outside so that the children had to climb out of a window to exit the trailer. When the police arrived at the scene, there was no food in the refrigerator or the pantry, and there was a single jar of peanut butter on the counter.
Confining the children to the trailer was the culmination of what appears to have been years of escalating abuse and neglect following the father’s marriage to the stepmother in 2003. Colleen testified at the fact-finding hearing that, before their mother’s death, the children were enrolled in public school, regularly attended church, and engaged in activities such as sports, ballet and Girl Scouts. Upon the father’s remarriage, the activities ceased and the children were enrolled in parochial schools. After frequently changing schools for no reason apparent on the record before us, the children were removed from school and were home-schooled by the stepmother. During their time in New Mexico, the children had no friends and did not participate in any sports or other extracurricular activities outside the home.
At some point, the parents informed Colleen, Kelly and Michaela that they were going back to school, but that they would have to wear “uniforms,” i.e., “a pair of sweatpants and a T-shirt” in colors that their father had selected. The three girls then began taking money out of their stepmother’s purse to purchase school clothes. When the parents discovered what the girls were doing, they called the police and the girls were arrested. About a week later, the father moved Colleen, Kelly and Michaela into the trailer in the middle of the night. The father brought peanut butter, bread, flour, and a bag of dried pinto beans as food for the children, and gave them a cellular telephone that was programmed to call only the parents. When the bread ran out, the children mixed flour and water to make “flat bread.” The children testified that the trailer had broken windows and was infested with cockroaches, ants, beetles, and spiders, and that its only furnishings were one or two sleeping bags, two blankets, and a single chair. According to Family Court, photographs of the trailer depicted “a very bleak looking trailer, broken tiles, exposed nails, no furniture, and [a] mostly empty refrigerator, and totally empty freezer above, in sharp contrast to the house.”
After the parents were arrested, CYFD completed an intake report concerning the children, which lists emotional and physical neglect, inadequate food, and close confinement. CYFD, however, apparently closed its file on the children without taking any further action after the aunt and uncle assumed physi
With respect to the first of the two New Mexico orders issued before the orders challenged on appeal, we note that, despite the criminal charges, the substantial evidence of abuse and neglect, and the no-contact order, the New Mexico court allowed the parents to select new guardians for the children and ruled that it would not address the issue of permanent custody until after the criminal charges had been resolved. The order provided that the New Mexico court “may appoint a guardian ad litem herein and may conduct in camera interviews of the minor children” (emphasis added) following resolution of the criminal proceeding. The order further provided that the parents “shall not in any manner communicate with the minor children or cause any third party or their agent to communicate in any manner with the minor children regarding this matter or the criminal matter” (emphasis added). The New Mexico court thus left open the possibility of communication or contact between the parents and the children on other subjects. Although the New Mexico court ordered the parents to “continue to abide by the no[-]contact order or any further order” issued in the criminal proceeding, the court noted that “[tjhere is no other order limiting [their] parental rights to the minor children.” With respect to the second of the two New Mexico orders, the New Mexico court, after reviewing a home study arranged and paid for by the parents, reiterated that the parents “maintain their constitutional right to management and control of their minor children,” approved the parents’ “selection of placement guardian[s] for their minor children,” and ordered the immediate transfer of the children to the Ohio guardians. Thus, without any input from CYFD or any other agency charged with the protection of children, an attorney for the children, or the children themselves, the New Mexico court ordered that the children be transferred from family members to non-relatives who were strangers to them and who resided in a state with which they had no connection, all at the behest of the parents who had abused them.
We find it particularly troubling that CYFD failed to commence an abuse or neglect proceeding against the parents and that the New Mexico court failed to appoint an attorney for the children to advocate on their behalf pursuant to New Mexico
Here, as noted above, CYFD apparently failed to conduct the statutorily mandated investigation into the abuse and neglect allegations against the parents (see NM Stat Ann § 32A-4-4 [A]), and the agency also failed either to recommend or to refuse to recommend the filing of an abuse or neglect petition against them (see § 32A-4-4 [C]). Instead, CYFD simply transferred the children to New York and closed its file, leaving the children’s fate to the wishes of their alleged abusers. In addition, upon asserting jurisdiction over the case, the New Mexico court failed to appoint a guardian ad litem or attorney for the children to “represent and protect the best interests of the chil
As previously noted herein, the children’s psychologist averred in an affidavit presented to Family Court that the parents displayed a “disturbing pattern of isolating these children from each other, from children their age, and from their mother’s relatives,” and he opined that moving the children to Ohio at the behest of the parents “would result in a perpetuation of the emotional abuse and deprivation that the[ ] children suffered under the care of their father and adoptive mother.”
Notably, the Ohio guardians were the parents’ second choice, and thus both their first and second choices for guardians were non-relatives, the first being the father’s office manager. As the Attorney for the Children argued in Family Court, the parents’ actions in attempting to remove the children from their New York placement constituted “a continuing pattern of abuse to isolate [the children] from family members,” and she and the psychologist similarly concluded that the parents’ actions communicated to the children that they remain under the control of their abusers.
In light of the above-described circumstances, including the absence of a neglect proceeding in New Mexico and the refusal of the New Mexico court to act to protect the children pending the resolution of the criminal charges against the parents, we conclude that Family Court properly continued to exercise temporary emergency jurisdiction of the children after the issuance of the two New Mexico orders. In our view, the children remained “in imminent risk of harm,” namely, emotional abuse inflicted by the parents, and it appears from the record before us that New Mexico has not acted to “assure the protection of the child[ren]” (Domestic Relations Law § 76-c [3]; see generally Matter of Maureen S. v Margaret S., 184 AD2d 159, 165 [1992]; Matter of Janie C., 31 Misc 3d 1235[A], 2011 NY Slip Op 51007[U], *2-3 [2011]; Severio P., 128 Misc 2d at 545).
The parents further contend that, even if Family Court properly exercised temporary emergency jurisdiction in the neglect proceeding, such jurisdiction did not permit Family Court to enter an order of disposition. We reject that contention. Domestic Relations Law § 76-c (2), which applies when a child
“[i]f a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under . . . this title, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.”
Domestic Relations Law § 76-c (3), however, which is previously quoted herein and governs the instant case in light of the custody proceedings in New Mexico, contains no such provision. Thus, orders issued pursuant to section 76-c (3) are required to expire at a date certain unless the “imminent risk of harm” exception applies, in which case the order applies “until [the home state] has taken steps to assure the protection of the child.”
The parents contend that the absence of language pertaining to a final determination in Domestic Relations Law § 76-c (3) implies that a court exercising temporary emergency jurisdiction pursuant to that section is unable to issue final determinations. Even assuming, arguendo, that the parents are correct, we conclude that Family Court is not thereby precluded from issuing the order of disposition in appeal No. 1. Although an order of fact-finding and disposition is a final order for purposes of appellate review (see Ocasio v Ocasio, 49 AD2d 801 [1975]; see generally Matter of Gabriella UU. [Kelly VV.], 83 AD3d 1306 [2011]; Matter of Mitchell WW. [Andrew WW.], 74 AD3d 1409, 1411-1412 [2010]), it is not a final or permanent “child custody determination” (Domestic Relations Law § 76-c [2], [3] [emphasis added]). Rather, the order in appeal No. 1 here simply placed the children in the custody of DSS, scheduled a permanency hearing, and approved a proposed plan for the children. Indeed, a placement with DSS is never intended to be a final or permanent custodial relationship. In cases such as this in which a child is placed with DSS pursuant to Family Court Act § 1055, the court retains continuous jurisdiction over the case (see § 1088), and the child’s placement is reviewed at permanency hearings conducted every six months (see § 1089 [a] [2], [3]). Such jurisdiction continues until the child is “discharged from placement” (§ 1088), i.e., until permanency is achieved (see Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book
“maintains complete continuing jurisdiction whenever a child has been placed outside his [or her] home. Accordingly, the case remains on the Court’s calendar — there is no final disposition until permanency has been ordered — and the Court may hear the matter upon motion at any time. There is no need or requirement to wait until the next scheduled hearing date” (Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1088, at 199-200 [2010 ed] [emphasis added]).
The parents therefore may at any time petition for the return of their children and/or move to vacate or terminate the children’s placement with DSS (see Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1086; see generally Family Ct Act § 1088).
Thus, the order of fact-finding and disposition in appeal No. 1, which concerns placement rather than custody of the children, does not conflict with New Mexico’s order, which provides that the “issue of permanent custody is hereby reserved pending resolution of the criminal charges” against the parents. Upon resolution of the criminal charges or when the emergency abates, i.e., when the New Mexico court ensures that the children are not “in imminent risk of harm” (Domestic Relations Law § 76-c [3]), the children’s placement with DSS may be revisited and the issue of permanent custody addressed. Until then, the order of fact-finding and disposition simply maintains the status quo — placement in the custody of DSS — with periodic judicial review to assess any changed circumstances. Inasmuch as the order of fact-finding and disposition does not constitute a final custody determination, it cannot be said that Family Court exceeded the scope of its temporary emergency jurisdiction in issuing the order in appeal No. 1.
Conclusion
We have reviewed the parents’ remaining contentions and conclude that they are without merit. Accordingly, we conclude that both orders should be affirmed.