MARYLOU L. v. TENECHA L.

solely on the basis of such notice and opportunity to be heard, and that the absence of such person from the hearing shall not be grounds for a continuance or to invalidate any order issued after the hearing. (Family Ct Act § 1040.) In Michael B., the Court of Appeals determined, "[l]ooking to the child's rights as well as the parents' rights to bring up their own children, [that] the Legislature has found and declared that a child's need to grow up with a `normal family life in a permanent home' is ordinarily best met in the child's `natural home' (Social Services Law § 384-b [1] [a] [i], [ii])." (Matter of Michael B., supra, 80 NY2d, at 309.) These legislative findings were unaffected by the 1999 amendment to Social Services Law § 384-b (1) (a). Rather, in amending that section the Legislature added the qualifier that "the health and safety of children is of paramount importance." (Social Services Law § 384-b [1] [a].) Accordingly, the Legislature decreed that the general desirability of returning a child to the natural parent must be "consistent with the health and safety of the child" (Social Services Law § 384-b [1] [a]). Legislative history indicates that this language does not represent a change in law, policy or emphasis in New York. Rather, the new statute has been described as "merely an attempt to refine the law concerning permanency planning for children in foster care so that New York law more fully and expeditiously accomplishes its preexisting goals. The new statute neither creates new rights nor abrogates preexisting ones, vested or otherwise." (Matter of Marino S., 181 Misc 2d 264, 273 [Fam Ct, NY County 1999].) Therefore, the court does not find that the Legislature intended the permanency hearing to be a forum for a petition by a relative caring for a child in temporary foster care to obtain permanent custody of the child, in the ordinary case. In the court's view, the significance of the new statutory option of placing a child in the permanent custody of a fit and willing relative, following a permanency hearing held under article 10 of the Family Court Act, is to be found in the 1999 amendments to Social Services Law § 384-b. (L 1999, ch 7, § 10.) Under the amended statute, if the child remains in foster care for 15 of 22 months from the placement event "the authorized agency having care of the child shall file a petition [to terminate parental rights pursuant to Social Services Law § 384-b] unless [inter alia]:

(A) the child is being cared for by a relative or relatives" (Social Services Law § 384-b [3] [l] [i] [A] [emphasis added]). By placing the child in the care of relatives, a petition for termination of parental rights may be avoided. Consequently, under narrow circumstances in which the relationship of the child to his or her extended family otherwise may be severed by a proceeding to terminate the parents' rights to custody and guardianship of the child, the amendment to Family Court Act § 1055 (b) apparently permits relatives of the child to intervene in the permanency hearing to obtain permanent custody. This interpretation of the amendment to Family Court Act § 1055 (b) is not inconsistent with the general statutory scheme of article 10. Permanent placement with relatives as an alternative to filing a termination of parental rights petition may be done consistently with Family Court Act § 1035 (f) by obtaining the consent of the parent whose rights otherwise may be terminated.

Alternatively, a relative may intervene to seek permanent custody of the child if the parents have not appeared in the child protective proceeding. (Family Ct Act § 1035 [f].) Even where the parent objects to the permanent transfer of custody, this narrow construction is consistent with established common-law principles. According to existing precedent, although not within the context of proceedings under article 10 of the Family Court Act (see, e.g., Matter of New York City Dept. of Social Servs. [Tahira L.], 203 AD2d 575, supra; cf., e.g., Matter of Whalen v Commissioner of Fulton County Dept. of Social Servs., 152 Misc 2d 251 [Fam Ct, Fulton County 1991]), a hearing is appropriate upon the petition of a relative for permanent custody of a child under circumstances where the rights of the child's parents to custody and guardianship otherwise might be terminated. Generally, a finding of neglect pursuant to article 10 of the Family Court Act does not amount to the extraordinary circumstances necessary to establish a nonparent's standing to seek permanent custody of the respondent parent's child. (See, e.g., Matter of Bisignano v Walz, 164 AD2d 317 [3d. Dept 1990]; Matter of New York City Dept. of Social Servs. [Tahira L.], 203 AD2d 575, supra; and see, Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 AD2d 528, 532-533 [2d Dept 1991].) In Matter of Dickson v Lascaris (53 NY2d 204, 209 [1981]), where a father filed a petition to regain custody of his child from a nonrelative, the Court of Appeals held that it "was error * * * to have concluded, in the absence of an abandonment as defined by statute, that petitioner abandoned his child" (emphasis added). The Court held that "[t]he definition of abandonment for determining whether an extraordinary circumstance is present within the meaning of Bennett v Jeffreys (supra ) simply does not differ from the classic abandonment principle" (Matter of Dickson v Lascaris, supra, at 209). In Matter of Bisignano v Walz (164 AD2d 317 [3d Dept 1990]) the Appellate Division, Third Department, interpreted Matter of Dickson to require that proof of extraordinary circumstances based upon persisting parental neglect or unfitness sufficient to permit a nonparent to seek custody of a child (Matter of Bennett v Jeffreys, supra, 40 NY2d, at 544) meets the standard of permanent neglect set forth in Social Services Law § 384-b. The Appellate Division, Second Department, has agreed implicitly, by requiring nonparents who seek standing to obtain custody of a child to meet a higher degree of proof of a parent's neglect under common-law principles than would be required to meet the standard of proof of neglect under Family Court Act article 10. (Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 AD2d 528, 532-533 [2d Dept 1991], appeal dismissed 78 NY2d 899.) The Second Department also has relied upon the Third Department's decision in Matter of Bisignano v Walz in dismissing a relative's petition for custody of a child, in the absence of sufficient evidence of parental unfitness (see, e.g., Matter of Ellen K. v John K., 186 AD2d 656, 658 [2d Dept 1992]; Matter of Garcia v Garcia, 183 AD2d 826 [2d Dept 1992]), and in sustaining transfers of custody from a parent to a relative on such grounds as the parent's mental illness. (See, e.g., Matter of Nellie R. v Betty S., 187 AD2d 597 [2d Dept 1992].) Section 1035 (f) of the Family Court Act merely codifies this common-law principle in part by stating that a relative does not have the right to intervene in a child protective proceeding to obtain permanent custody of the subject child at disposition, following a finding of neglect. However, the amended Family Court Act § 1055 (b) (iv) (B) (5) (iv) now apparently incorporates the entire common-law principle into the statute, by permitting a fit and willing relative to petition for permanent custody as an alternative to the termination of parental rights, where the relative can demonstrate circumstances such as would support a petition to terminate parental rights. Under such circumstances, the court should entertain the relative's petition for permanent custody of the child, in the context of the permanency hearing. This interpretation of the amendment is consistent with the legislative purpose "merely * * * to refine the law concerning permanency planning for children in foster care * * * [by legislation which] neither creates new rights nor abrogates preexisting ones, vested or otherwise." (Matter of Marino S., supra, 181 Misc 2d, at 273 [Fam Ct, NY County 1999].) This interpretation also is consistent with previous judicial construction of Social Services Law § 392, which is similar to the new permanency hearing statute. Section 392 of the Social Services Law was enacted in 1971 to require periodic review of the status of children placed into foster care by means other than a Family Court proceeding. (Social Services Law § 392 [1] [b].) The purpose of the enactment was to ensure early permanency for those children. The Court of Appeals described the purpose of the foster care review provisions of Social Services Law § 392 as follows: "Fundamental also to the statutory scheme is the preference for providing children with stable, permanent homes as early as possible (see, Matter of Peter L., 59 NY2d 513, 519). `[W]hen it is clear that the natural parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought' (Social Services Law § 384-b [1] [a] [iv]). Extended foster care is not in the child's best interest, because it deprives a child of a permanent, nurturing family relationship (see, Matter of Gregory B., 74 NY2d 77, 90, rearg denied sub nom. Matter of Willie John B., 74 NY2d 880; Matter of Joyce T., 65 NY2d 39, 47-48)." (Matter of Michael B., supra, 80 NY2d, at 310.)Section 392 of the Social Services Law was amended in 1989 (L 1989, ch 744, § 3) to authorize the court to direct that the child be placed in the custody of a relative. (Social Services Law § 392 [6] [b].) This amendment is strikingly similar to the newly amended Family Court Act § 1055 (b). Under the amended section 392, a kinship, foster parent does not stand in the same relation to the child as any other foster parent. This distinction was recognized explicitly by the Court of Appeals in Michael B., where the Court stated: "As set forth above, there are three possible dispositions after foster care review with respect to a child not freed for adoption: continued foster care; release to a parent, guardian, relative or other suitable person; and institution of parental termination proceedings (Social Services Law § 392 [6] [a]-[c]). "As the first dispositional option, paragraph (a) contemplates the continuation of foster care, with the child remaining in the custody of the authorized agency, and the arrangement remaining subject to periodic review * * * Under the statutory scheme, however, foster care is temporary, contractual and supervised. "Paragraph (b), by contrast, contemplates removal of the child from the foster care system by return to the parent, guardian or relative, or direct[ion] that the child be placed in the custody of a relative or other suitable person or persons.' The 1989 statutory revision added as a permissible disposition the placement of children with relatives or other suitable persons. The purpose of this amendment was to promote family stability by allowing placement with relatives, extended family members or persons like them, as an alternative to foster care (see, Sponsor's Mem in Support of Amended Bill, L 1989, ch 744, and 10 Day Bill Budget Report, A 7216-A, Governor's Bill Jacket; see also, Matter of Peter L., 59 NY2d, at 519, supra). "Plainly, the scheme does not envision also including the [unrelated] foster parents" (Matter of Michael B., supra, at 316). In this court's view, the purpose of the 1999 amendment to Family Court Act § 1055 (b), to permit the placement of a child out of foster care and permanently in the care of a fit and willing relative, also "was to promote family stability by allowing placement with relatives * * * as an alternative to foster care" (Matter of Michael B., supra, at 316). However, under the statutory scheme adopted, the court finds for the reasons previously stated that such petitions are limited to circumstances in which the parents' right to custody and guardianship of the child otherwise may be terminated. The present petition for custody must be dismissed as unauthorized by the statute under which the child was placed in foster care. Moreover, the petition should be dismissed even were the court to consider it a petition for a permanency hearing (Family Ct Act § 1055 [b] [ii]) brought by a "fit and willing" kinship foster parent to obtain permanent custody of the child under Family Court Act § 1055 (b) (iv) (B) (5) (iv). The petition fails to allege facts sufficient to establish standing to seek permanent custody of the child placed in the petitioner's care by the Commissioner of the Administration for Children's Services. The basis for the grandmother's petition for permanent custody of the child is that there has been a finding of neglect against the mother, who is alleged to have continued her relationship with the child's abuser. The child has not remained in the petitioner's care for the 15-month period sufficient to give rise to a petition to terminate the respondent's parental rights, under the amended statutes. (Social Services Law § 384-b [3] [l] [i] [A].) Nor, in any event, has the petitioner alleged facts which would give rise to a cause of action for permanent neglect. [1] Although Family Court Act § 1062 permits "[a]ny interested person acting on behalf of a child" placed under section 1055 to petition the court for an order terminating placement, the court may only discharge the child from custody in accord with Family Court Act § 1054. (Family Ct Act § 1065 [b].) [2] The determination to be made in the permanency hearing conceivably might occur even prior to any finding against the respondent parent, where the finding is not made within 14 months of the child's removal from the home. [3] Under the statute in existence prior to the 1999 amendments, the person or agency with whom the child was placed, or the child, Law Guardian or foster parent could petition for a hearing on the extension of placement. [4] Cf., e.g., Family Ct Act § 1055 (b) (iii). [5] The statute also exempts an agency from filing a petition to terminate parental rights where there is a documented "compelling reason for determining that the filing of a petition would not be in the best interest of the child" (Social Services Law § 384-b [3] [l] [i] [B]) or where the agency has not provided the parents with such services "as it deems necessary for the safe return of the child" to the parents, unless such services are not legally required. (Social Services Law § 384-b [3] [l] [i] [C].) A "compelling reason" includes that "there are insufficient grounds for filing a petition to terminate parental rights" (Social Services Law § 384-b [3] [l] [ii] [D]). [6] However, the pendency of a disposition under article 10 establishes a compelling reason to exempt the agency from filing a petition to terminate parental rights, even though the child has been in foster care for 15 consecutive months. (Social Services Law § 384-b [3] [l] [ii] [E].)