New NY Strategy: Wait Unit Judge Retires to Criticize

Judge Criticized for Issuing Contradictory Rulings
The New York Law Journal by John Caher - February 28, 2012

ALBANY, NY - A recently retired Family Court judge's practice of ordering "inherently contradictory" child placements calling for both permanent adoption and reunification with the family has resulted in a rebuke from a state appeals panel.  The Appellate Division, Third Department, said in a decision Feb. 16 that St. Lawrence County Family Court Judge Barbara R. Potter, who retired at the end of 2011, has ordered concurrent permanency goals at least three times since 2009.  "Petitioner cannot reasonably work toward the goal of placing the child for adoption—which, pursuant to the statute, requires petitioner to file a petition to terminate respondent's parental rights—while at the same time trying to return the child to his parents," Judge William E. McCarthy wrote for the unanimous court in Matter of Dakota F., 511718.  In the latest case, Dakota F., a neglected child born in 2003, was removed to the custody of St. Lawrence County Department of Social Services with the goal of eventually returning her to her mother. However, in September 2009, the social services agency sought to change the recommendation to placement for adoption.  After a hearing, and without consulting with the child, Judge Potter issued an order calling for a "concurrent plan of return to parent and placement for adoption."  The Third Department held that Judge Potter "erred by not consulting with the child in any manner, or even eliciting an opinion of the child's wishes from the attorney for the child." But the panel said there was no need to determine if that error required reversal, since reversal "is necessary due to a more fundamental error"—the contradictory order.  Justice McCarthy observed that under Family Court Act Article 10-A, judges have a number of alternatives in ordering permanency goals, ranging from return to the parent to placement with a relative to placement for adoption. But the judge must select one. He indicated that Judge Potter had a tendency to choose more than one, referring to Matter of A.D., 27 Misc 3d 1229 (2010), and Matter of Andrea D., 25 Misc 3d 503 (2009).  "Because the court did not consult with the child and imposed concurrent—and inherently contradictory—permanency goals rather than a single permanency goal, we must remit for further proceedings," Justice McCarthy wrote.  Acting Presiding Justice Thomas E. Mercure (See Profile) and Justices Robert S. Rose, Edward O. Spain and Bernard J. Malone Jr. also were on the panel.  John A. Cirando of Syracuse represented the mother seeking custody. "Hopefully, this decision will clarify the procedures going forward and give children a good chance to be reunited with their parents," Mr. Cirando said.  Laurie L. Paro of Canton appeared for the Department of Social Services and Aaron Turetsky of Keeseville argued for the child.  Neither Ms. Paro nor Mr. Turetsky were available for comment. Former Judge Potter also was unavailable.  John Caher can be contacted at jcaher@alm.com.