Opinion
June 22, 1993
Appeal from the Family Court, Bronx County (Harvey M. Sklaver, J.).
The Family Court erroneously determined that it did not have jurisdiction to modify its prior order since such modification would circumvent the fair hearing decision of the New York State Department of Social Services (the DSS). For good cause shown, however, the Family Court may set aside, modify, or vacate any order issued in the course of a child protective proceeding (Family Ct Act § 1061). It is the Family Court and not the DSS which acts as parens patriae to do what is in the best interests of the children (Finlay v. Finlay, 240 N.Y. 429, 433-434; Matter of Samantha S., 80 Misc.2d 217, 220). Section 1061 "expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child's welfare" (Besharov, Practice Commentary, McKinney's Cons Laws of N.Y., Book 29A, Family Ct Act § 1061, at 461). The two cases relied on by the Family Court, People ex rel. Ninesling v Nassau County Dept. of Social Servs. ( 46 N.Y.2d 382) and Matter of Leonora M. ( 104 A.D.2d 755), involved aggrieved foster parents whose claims had been resolved unfavorably to them in a fair hearing and did not involve a proceeding on behalf of the child.
Concur — Murphy, P.J., Milonas, Kupferman, Ross and Nardelli, JJ.