Permissibility of Concurrent Kinship Guardianship Petitions and Return-to-Parent Permanency Goals under Family Court Act § 661(c)

Introduction

In Matter of Nedia M. v. Ashley M. (2025 NYSlipOp 01731), the Fourth Department of the Appellate Division addressed whether a relative may file a kinship guardianship petition while an Article 10-A child welfare proceeding remains pending with a permanency goal of return to parent. Petitioner Nedia M., the paternal aunt of two children, sought guardianship over them. Respondent Ashley M., the mother, appealed the Family Court’s order appointing petitioner as guardian, arguing that the court lacked jurisdiction because the permanency plan had not yet shifted from return to parent to legal guardianship. The appeal also raised issues concerning hearing consolidation, the existence of extraordinary circumstances justifying guardianship, age-appropriate consultation, visitation terms, and the effectiveness of counsel.

Summary of the Judgment

The Appellate Division unanimously affirmed the Family Court’s appointment of petitioner as kinship guardian. The court held that:

Family Court had subject matter jurisdiction under Family Court Act § 661(c) to entertain a kinship guardianship petition while an Article 10-A proceeding with a return-to-parent goal was ongoing.
The court did not err in its choice to consider permanency and guardianship issues in a single proceeding.
Petitioner met her initial burden to demonstrate extraordinary circumstances, and respondent failed to raise any triable issue of fact.
Age-appropriate consultation requirements were satisfied through the attorney for the children.
Supervised visitation terms were within the court’s discretion and supported by the record.
Respondent received effective assistance of counsel under the prevailing standards.

Analysis

Precedents Cited

The court relied on several key precedents to support its jurisdictional and substantive rulings:

Matter of Rebecca B. v. Michael B. (152 AD3d 675 [2d Dept 2017]) – Confirms that a relative may file a guardianship petition under § 661(c) even if an Article 10 or 10-A case is pending.
Matter of Dakota F. [Angela F.] (92 AD3d 1097 [3d Dept 2012]) – Holds that courts cannot impose contradictory permanency goals, yet may consider guardianship concurrently with reunification efforts.
Matter of Kiara F. [Evan F.] (231 AD3d 1489 [4th Dept 2024]) – Recognizes that pursuing guardianship does not inherently conflict with working toward return to parent.
Matter of Nevaeh L. [Katherine L.] (177 AD3d 1400 [4th Dept 2019]) and Matter of Carson W. [Jamie G.] (128 AD3d 1501 [4th Dept 2015]) – Establish that ongoing parental substance abuse and failure to protect children support finding extraordinary circumstances for guardianship.
Matter of Burczynski v. Rodgers (61 AD3d 1401 [4th Dept 2009]) – Affirms the Family Court’s discretion to determine visitation terms necessary to serve the children’s best interests.

Legal Reasoning

The court’s reasoning unfolded in several steps:

Jurisdiction under § 661(c): The statute explicitly permits a relative’s guardianship petition while an Article 10 or 10-A proceeding is pending. The court rejected the mother’s argument that this allowance is contingent upon a change in the permanency goal.
Consolidation of Hearings: Although consolidation is discretionary, the court effectively held a joint hearing on permanency and guardianship by addressing both the appropriate long-term plan and the merits of the petition.
Extraordinary Circumstances: Petitioner’s burden was satisfied by the prior neglect finding and the risk posed by respondent’s ongoing relationship with the children’s father and her unverified substance use. Respondent offered no evidence to the contrary.
Age-Appropriate Consultation: Family Court Act § 1089-a(e) does not require young children to appear in court; consultation via their attorney suffices.
Visitation and Supervision: The court’s imposition of supervised visitation followed its inherent authority to protect the children’s best interests, a decision supported by evidence of potential harm if unsupervised.
Effective Assistance of Counsel: Respondent’s counsel made strategic choices with negligible risk of error. Alleged failures to introduce or certify drug tests lacked a showing of prejudice or absence of strategic basis.

Impact

This decision clarifies and solidifies the principle that relatives need not wait for a formal change in a permanency goal before filing a guardianship petition. It encourages early consideration of kinship guardianship as a stability measure and guides courts on procedural integration of permanency and guardianship hearings. Future litigants will cite Nedia M. for:

The broad reading of § 661(c) to prevent jurisdictional objections where return to parent remains the goal.
Support for joint hearings and simultaneous exploration of reunification and guardianship pathways.
Standards for demonstrating extraordinary circumstances in kinship guardianship petitions.
Permissible methods of age-appropriate consultation in guardianship and permanency cases.

Complex Concepts Simplified

Family Court Act § 661(c): A provision allowing close relatives (kin) to seek legal guardianship of a child while child welfare proceedings (Article 10/10-A) are still underway.
Extraordinary Circumstances: A legal standard requiring proof that remaining with the parent would harm the child, often based on neglect, abuse, or parental inability to provide a safe environment.
Consolidation of Hearings: Combining multiple legal issues—here, permanency planning and guardianship—into a single court proceeding to promote efficiency and consistency.
Age-Appropriate Consultation: A requirement that children’s wishes be considered in court—achieved either by direct interview or through their appointed attorney, depending on the child’s age and maturity.
Return-to-Parent Permanency Goal: The objective of reuniting children with their biological parents once safety and stability conditions are met.

Conclusion

Matter of Nedia M. v. Ashley M. establishes an important precedent: relatives may timely file kinship guardianship petitions under Family Court Act § 661(c) even when the prevailing dispositional plan remains reunification. The decision promotes early exploration of stable long-term placements and instructs courts on harmonizing guardianship and permanency proceedings. By clarifying jurisdictional authority, evidentiary burdens for extraordinary circumstances, and procedural safeguards for children’s participation, the Appellate Division provides a roadmap for lower courts, practitioners, and families seeking to secure the best interests of children through kinship care.