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Paul, Weiss Obtains Reversal by New York Court of Appeals in Pro Bono Case

Paul, Weiss assisted the Bronx Defenders and Legal Assistance of Western New York, Inc. in securing the precedent-setting reversal, by the New York Court of Appeals, of an earlier decision by the Appellate Division. The decision reverses the Fourth Department’s decision that held that the Family Court retains subject matter jurisdiction to keep a child in foster care and conduct a permanency hearing – a hearing to determine a permanent plan for the placement of the child – even after the underlying neglect petition was dismissed.

In November 2014, the subject child was removed from her mother’s care a week after she was born pursuant to an ex parte pre-petition order. Four days after the removal, the Wayne County Department of Social Services filed its neglect petition. The fact-finding hearing was held more than a year later, after which the Family Court found that the department had failed to prove neglect, and therefore dismissed the petition. The department did not appeal that decision. Instead of releasing the child into her mother’s custody, the Family Court kept the child in foster care and held a second permanency hearing in January 2016.

In our brief to the Court of Appeals, we argued that the statutory scheme and legislative history clearly instructed that the dismissal of a neglect petition concludes the Family Court’s jurisdiction over the family. We also argued that the Court of Appeals should construe the Family Court Act to avoid the constitutional problem of depriving parents of the care and custody of their children without a finding or pending claim of abuse or neglect. Lawyers for Children, Inc. and The Legal Aid Society, Juvenile Rights Practice, filed an amicus brief in support of the appellant.

On November 20, the state’s highest court issued a unanimous decision reversing the Fourth Department and holding that the Family Court does not retain subject matter jurisdiction to conduct a permanency hearing once the underlying neglect petition has been dismissed.  

The Paul, Weiss team included associates Kate Roh and Jennifer Garrett, with supervision by Roberto Finzi.

December 5, 2017

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