Matter of Keith M.

MARJORIE C. MIX, J. The case at bar raises issues of apparent first impression that require this court to interpret chapter 7 of the Laws of 1999, effective February 11, 1999, which was enacted in order to bring New York into conformity with the Federal Adoption and Safe Families Act of 1997 (Pub L 105-89, 111 US Stat 2115 [1997] [hereinafter ASFA]). Among the amendments thereby made to the Family Court Act was the addition of a new section, Family Court Act § 1039-b, which authorizes the Department of Social Services to file a motion upon notice requesting a finding that reasonable efforts to return the child to his or her home are no longer required. A threshold issue is whether the newly enacted Family Court Act § 1039-b is applicable where, as here, the petition alleging the abuse or neglect of a child was filed prior to the effective date of New York's ASFA legislation. Also at issue is whether a motion pursuant to Family Court Act § 1039-b to relieve the Department of Social Services of its obligation to make reasonable efforts to reunite the child and parent may be made and determined after the fact-finding adjudication of neglect or abuse, but prior to the holding of the dispositional hearing. Finally, the court must consider petitioner's contention that should the motion pursuant to Family Court Act § 1039-b be granted, there is no further need to conduct a dispositional hearing. For the reasons that follow, this court holds that Family Court Act § 1039-b may properly be applied to proceedings filed before the effective date of New York's ASFA legislation. While such a motion may be made and determined prior to the Family Court Act article 10 dispositional hearing in an appropriate case, the court does not accept petitioner's contention that the dispositional hearing is thereby rendered superfluous and may be dispensed with.

On August 11, 1998, the child Keith was found abandoned by police officers in a bedroom of the home of respondent Tiffany M., his mother. The nine-year-old child had been bound with electrical cords, hooded with a pillowcase tied around his neck, and gagged with a sock stuffed in his mouth and secured by electrical tape wrapped around his face. The child's arms and legs had been tied so that he was forced to remain standing in a cruciform position; he was otherwise naked, loud music was left playing in the room, and the door to the room was taped shut. When discovered, the child had been tied up since August 7, 1998; he was found to have sustained several old and healing cuts and bruises, whip marks, and numerous scars and lacerations. The Erie County Department of Social Services (hereinafter Department) petitioned against respondents Tiffany M. and Quanaparker H. for a determination that the children Keith M. (date of birth May 8, 1989) and Mikel M. (date of birth Dec. 13, 1992) are abused children. Following a hearing, this court issued its "Determination of Fact-Finding Hearing (Child Abuse)" (hereinafter Fact-Finding Order) and accompanying Decision (Decision) on July 7, 1999. The court therein determined the facts recounted above and found that petitioner had more than met its burden of proving by a preponderance of the evidence that Keith was the victim of abuse perpetuated by respondent caretakers M. and H., as defined by Family Court Act § 1012 (e) (i) and (ii). This abuse comprised at least four occasions when the child was tied up and numerous occasions when he was whipped and beaten. The court further concluded that petitioner also met the higher burden of proving by clear and convincing evidence that respondent M. repeatedly and severely abused Keith. Therefore, in addition to the finding of abuse as to both respondents, MOTIONS

At the August 27, 1999 appearance, counsel for respondent M. made oral application to have the Law Guardian removed from simultaneous representation of both children, alleging that the brothers are not similarly situated and that the Law Guardian's representation of both presents a conflict. That motion is denied; this court has previously determined that the establishment of the abuse by respondent of Keith constituted admissible proof of her neglect of Mikel, which proof respondent failed to meet. (See, Family Ct Act § 1046 [a] [i]; Matter of Sarah L., 207 AD2d 1016 [4th Dept 1994].) In view of this court's adjudication after submission of the case for fact-finding that Keith and Mikel were respectively the victims of respondent's abuse and neglect, respondent's motion is belated, unsupported by any material factual or legal distinction between the children, and can only serve to further delay the disposition of this matter. It may be that one of the children desires further contact with the respondent and the other child does not. However, "[a] Law Guardian's role in a child protective proceeding not only includes serving as counsel and advocate for the child, but also encompasses aiding the court in arriving at an appropriate disposition" (Matter of Dewey S., 175 AD2d 920, 921 [2d Dept 1991]). A Law Guardian "may thus attempt to persuade the court to adopt that position which, in the Law Guardian's judgment, would best promote the child's interest" (supra, at 921). During oral argument, the experienced Law Guardian here evinced a thorough understanding of her role to both express her clients' respective wishes to the court as well as to attempt to persuade the court to adopt a disposition which, in the Law Guardian's independent judgment, may be in the children's best interests. The court is confident that the Law Guardian will properly discharge that responsibility, and counsel for the respondent has failed to allege any material conflict or potential conflict of interest which would bar the Law Guardian from representing both children.

Preliminarily, although not raised by counsel, the instant matter presents the threshold issue of the applicability of Family Court Act § 1039-b where the petition alleging the abuse or parent(s) to whom the child(ren) will return. (See, e.g., Matter of Sheila G., 61 NY2d 368, 384 [1984].) The respondent may, for example, wish to be heard on the issue that she be granted access to the children, and may clarify for the record what additional efforts she will undertake in light of the above-stated goals, toward family reunification and rehabilitation. The focus of the hearing must remain prospective; clearly immaterial would be any attempt to proffer excuses or enter denials regarding the adjudicated fact that respondent's previous parenting of her children was abusive and neglectful, or to explore rationales as to why she engaged in said conduct. Finally, in addition to a dispositional hearing, Family Court Act § 1039-b (b) (6) requires that where the court finds that reasonable efforts are not required of the agency, a permanency hearing must be held within 30 days of such finding to consider, inter alia, the appropriateness of the agency's permanency plan for the children. Under the circumstances of the case at bar, and given the logistics of transporting the incarcerated respondent hundreds of miles to the courthouse, the court finds no tenable reason or statutory proscription which would operate to preclude the court from sequentially holding the dispositional and permanency hearings on the same appearance date. Wherefore, it is ordered, decreed and adjudged that respondent's motion to remove the Law Guardian from further representation of both of the subject children is hereby denied; and it is further ordered, decreed and adjudged that petitioner's motion for an order pursuant to Family Court Act § 1039-b determining that reasonable efforts to reunite the subject children with the respondent mother shall not be required is hereby granted. [*] Parenthetically, there is no force to any argument that Mikel and Keith are differently situated with respect to the issue of whether the Department should be obligated to undertake reasonable reunification efforts. Both children were in respondent M.'s care and custody when the child Keith was victimized by the respondent; the contention that Mikel had resided for a longer period of time with the respondent than had Keith is immaterial. Mikel and Keith are identically situated with respect to the pending motion as a matter of law, insofar as Family Court Act § 1039-b (b) (4) directs the entry of a "no reasonable efforts" finding relative to a child whose parent has been convicted of a first or second degree assault which has caused serious physical injury "to the child or another child of the parent."