This document is a memorandum of law submitted in Bronx Family Court in opposition to a final order of protection pursuant to F.C.A. § 1056(4). The memorandum argues that under the plain language of F.C.A. § 1056(4), the court cannot issue an order of protection against the respondent, Jorge Limardo, to remain in effect until one of the child's 18th birthdays. This is because Mr. Limardo is related by blood to two members of the child's household, which is explicitly excluded by the statute. The memorandum analyzes the statutory language and legislative intent to argue the court's jurisdiction over Mr. Limardo must be limited to concurrent with other orders as described

1. FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
___________________________________________
In the Matter of
DAMON LIMARDO
ELIJAH TORRES Docket No: NN-19287/89/09
PRISCILLA LIMARDO
Part 10
Children under Eighteen Years of Age Hon. Karen Lupuloff
Alleged to be Neglected by
JORGE LIMARDO,
Respondent.
___________________________________________
MEMORANDUM OF LAW
IN SUPPORT OF OPPOSITION TO A FINAL ORDER OF PROTECTION
PURSUANT TO F.C.A. § 1056(4)
Davina Harris, Esq.
Attorney for the children
The Legal Aid Society
900 Sheridan Avenue, 6C-12
Bronx, NY 10451

2. PRELIMINARY STATEMENT
At issue in this memorandum is whether the court may enter a final order of protection on
behalf of a child until their eighteenth birthday against a respondent who is no longer a member
of the household at the time of disposition, however is a person related by blood to a member of
the child’s household.
F.C.A. § 1056 (1) authorizes the court to make an order of protection in assistance or as a
condition of any other order made under this part. Such an order of protection shall remain in
effect concurrently with, shall expire no later than the expiration date of, and may be extended
concurrently with such other order made under this part, except as provided by F.C.A. § 1056(4).
See F.C.A §1056(1). F.C.A. § 1056(4) further provides that the court may enter an order of
protection independently of any other order made under this part, against a person who was a
member of the child’s household or a person legally responsible as defined in §1012, and who is
no longer a member of such household at the time of the disposition and who is not related by
blood or marriage to the children or a member of the child’s household. An order of protection
entered pursuant to this subdivision may be for any period of time up to the child’s eighteenth
birthday and upon such conditions as the court deems necessary and proper to protect the health
and safety of the child and the child’s caretaker. See F.C.A. §1056(4).
Thus as applied to the facts in this case, the court may not issue an order of protection
against the respondent to remain in effect until the child’s eighteenth birthday. The court’s
jurisdiction over Mr. Limardo must be limited to the F.C.A. §1056(1). The exemption to the
court’s limited jurisdiction over the respondent beyond the dispositional period provided in

3. §1056(4) does not apply to Mr. Limardo as he is related by blood to two members of the child’s
household.1
See F.C.A. §1056(4).
In addition to the language presented in F.C.A §1056, both the legislative history
pertaining to the statute and the resulting case law further establish that F.C.A. 1056(4) does not
authorize the court to issue an order of protection against a respondent independently of any
other dispositional order where the respondent is related by blood to a member of the child’s
household.
BRIEF STATEMENT OF FACTS
On July 25, 2009, the Office of Children and Family Services received and intake report
stating that EMS transported Elijah Torres to Jacobi Hospital after Jorge Limardo beat him
severely. The report further indicated that Mr. Limardo punched Elijah in his eye with a closed
fist and that Mr. Limardo choked Elijah and beat him on his body with a belt. At the time, the
known injuries to the child included visible facial bruising and scratches on his face. The report
further alleged that Mr. Limardo engaged in previous acts of excessive corporal punishment
against the child for unknown reasons.
The Administration for Children’s Services (ACS) filed a neglect petition against Jorge
Limardo in Bronx Family Court on July 30, 2009. The report alleged that the respondent
neglected Elijah Torres and derivatively neglected Priscilla Limardo and Damon Limardo by
failing to provide the subject children with proper supervision and guardianship by unreasonably
inflicting excessive corporal punishment against Elijah Torres. On June 30, 2009 the presiding
Judge, the Honorable Karen Lupuloff paroled the children to the non-respondent mother, Ms.
Deborah Torres.
1
Mr. Limardo is the biological father of Priscilla Limardo and Damon Limardo. He is not the biological father of
Eiljah Torres. Elijah resides with his mother Deborah Torres and his siblings Priscilla Limardo and Damon Limardo.

4. On March 8, 2010 the court entered a finding of neglect against Mr. Limardo pursuant to
F.C.A. §1051(a). On consent of the parties during the dispositional phase of the hearing, the
court ordered the release of Pricilla Limardo, Damon Limardo and Elijah Torres to the non-
respondent mother with ACS supervision for twelve months. The parties also consented to a
post-dispositional service plan for Mr. Limardo to include completing a batterers program and
parenting class and engaging in counseling to include anger management with a licensed
practitioner. In addition, the Administration for Children’s Services made an application to the
court to issue a final order of protection on behalf of Elijah Torres that would extend until the
child’s eighteenth birthday. The attorney for the respondent did not consent to the issuance of
such an order. The attorney for the respondent argued that F.C.A. §1056(4) does not authorize
the court to issue a final order of protection on behalf of a subject child to extend to the child’s
eighteenth birthday where the respondent is related by blood to another child in the household.
In response, the court adjourned the matter until March 16, 2010 for the issue to be briefed and
heard.
The attorney for the children received a memorandum of law in opposition to a final
order of protection pursuant to F.C.A. §1056(4) from the attorney for the respondent, Gaylynn
Burroughs, on April 09, 2009. This memorandum is submitted in support of the Memorandum
of Law in Opposition to a Final Order of Protection Pursuant to F.C.A. 1056(4) submitted by the
attorney for the respondent, Gaylynn Burroughs, on April 9, 2009.
ARGUMENT
1. PLAIN STATUTORY LANGUAGE
F.C.A. §1056(1) permits the court to issue an order of protection to extend concurrently
with any other order of disposition pursuant to this part. See F.C.A. §1056(1). In the F.C.A.

5. §1056 Practice Commentary, Professor Merril Sobie notes that, “The permissible duration of a
Section 1056 order is dependent upon the relationship between the individual against whom the
order is issued and the child who has been found to be neglected or abused.” As an extension to
the court’s jurisdiction over the respondent, F.C.A. § 1056(4) permits the court to issue a final
order of protection against a respondent on behalf of a child until that child reaches his/her
eighteenth birthday, only if the following conditions are met:
1. Respondent was a member of the child’s household or a person legally responsible as
defined by §1012.
2. Is no longer a member of the household at the time of disposition.
3. Is not related by blood or marriage to the child or a member of the child’s household.
At issue is clause three. That is, whether the phrase “or a member of the child’s
household,” may be properly omitted from F.C.A. §1056 in order for the court to apply 1056(4)
to the respondent in this case.
Where a statute is clear and unambiguous, the court must defer to the complete language
of the statute rather than an independent analysis of the law, legislative intent and purpose.2
As
noted in the Mckinney’s Consolidated Laws of New York Annotated Commentary,
It is a basic rule of statutory construction that the courts should avoid judicial legislation,
since the Constitution of this state vests the legislative power in the Senate Assembly;
and courts may not legislate under the guise of interpretation of statutes. That the courts
may not divest or usurp the legislative power has been announced so frequently and in
such varying language as to defy complete repetition. See McKinney’s Statutes, §73.
To make such an omission in this case would disrupt a delicate balance of power between the
judicial and the legislative branch, with the role of the later to exclusively make law rather than
to interpret and apply law. Thus courts, “…should take the statutes as they find them and
construe them according to the cannons of interpretation, neither extending their operation
2
See e.g., Mkinney’s Statute, §73, stating: “The courts in construing statutes should avoid judicial legislation; they
do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its
action on matters within its powers.”

6. beyond the bounds of legislative intent, nor restricting their obvious application.” See Id.
Similarly citing McKinney’s Cons Laws of NY, Book 1, Statutes §240, In Petrolmen’s Benev.
Ass’n of City of New York v. City of New York, 41 N.Y.2d 205 at 208-9 (1976), the court held
that, “where…the statute describes the particular situations in which it is to apply, ‘an irrefutable
inference must be drawn that what is omitted or not included was intended to be omitted or
excluded.’” See Id at 208-9.
Thus the judiciary must also concede that any express statement, clause or phrase in the
statute does not carry extraneous meaning. That is, such clause cannot be interpreted as
severable from the surrounding language in the statute. The meaning of the whole is incomplete
absent any single part. Thus in this case the court must construe the plain meaning of the statute.
For example in Bender v. Jamaica Hospital., 40 N.Y.2d 560 (1976), the court held that if a
statute is clear and unambiguous, the court must apply the statute as it exists. See Id. at 561.3
Similarly citing Matter of the Transfer Tax upon the Estate of Catharine A. De Peyster., 210
N.Y. 216 (1914), the court in Allstate Ins. Co. v. Prudential Property and Cas. Ins. Co., 117
A.D.2d 236, 502 N.Y.S.2d 446 (1986), noted that, “When an act of the legislature is expressed in
clear language, it is the duty of the courts to enforce such act in accordance with the letter of the
statute.” See Id. at 449.
Thus where F.C.A. §1056(4) expressly includes the phrase related by blood to a member
of the child’s household the court must assume the legislature intended that F.C.A §1056(4)
would not apply to a respondent who is related by blood to a member of the child’s household.
2. LEGISLATIVE HISTORY
In contrast, the court may consider legislative history in determining the true meaning of
the statute where the language is unclear and ambiguous. Given the issue presented in this
3
See also, In re De Peyster’s Estate, 210 N.Y. 216, 225.

7. memorandum, the legislative history surrounding F.C.A. §1056 is particularly relevant. The
legislative history surrounding F.C.A. §1056 reveals three periods of substantial divergence in
the law: prior to 1989,1989-1990 and post 1990. During those three periods, the Senate and
Assembly moved toward a less punitive, pro-reunification and periodic review based model. The
final period (post-1990) clearly demonstrates the current legislative intent to ensure that only an
individual with a remote, attenuated and severable relationship with the child and their family
may be subject to a final order of protection that extends beyond the initial period of disposition.
Prior to 1989, F.C.A. 1056(1) enabled the court to issue orders of protection that
exceeded the duration of other dispositional orders in the case. See In the Matter of Gabriel A., 5
Misc.3d 479, 781N.Y.S.2d 874, 876-7. On June 26, 1989 the New York Senate and Assembly
enacted a bill amending F.C.A. §1056(1). The amendment to §1056(1) which previously
authorized the court to make an order of protection in assistance or as a condition of any other
order made under this part, included additional language stating that, “…such order of protection
shall remain in effect concurrently with, shall expire no later than the expiration date of, and may
be extended concurrently with, such other order made under this part.” See 1989 N.Y. Sess. Law
Serv. 220. One year later, the People of the State of New York approved an additional
amendment to F.C.A. §1056 to include new subdivision §1056(4). See 1990 N.Y. Sess. Law
Serv. 622.4
In Matter of Gabriel A., 5 Misc.3d 479, 781 N.Y.S.2d 874 (2004) the Commissioner for
the Administration of Children’s Services moved for a no-contact order of protection against the
4
Amendment §2 states that 1056 of the family court act is amended by adding a new subdivision 4 to read as
follows: The court may enter an order of protection independently of any other order made under this part, against a
person who was a member of the child’s household or a person legally responsible as defined in section one
thousand twelve of this chapter, and who is no longer a member of such household at the time of disposition and
who is not related by blood or marriage to the child or a member of the child’s household. An order of protection
entered pursuant to this subdivision may be for any period of time up to the child’s eighteenth birthday and upon
such conditions as the court deems necessary and proper to protect the health and safety of the child and the child’s
caretaker.

8. respondent until the child’s eighteenth birthday. The court held that although the respondent
committed such repugnant and unconscionable acts against a child so as to merit an extended
order of protection, F.C.A. 1056 prohibited the issuance of such an order beyond the period of
disposition. See Id. at 79-80. In deriving this holding the court noted that while prior to 1989,
F.C.A. §1056 did not limit the duration of an order of protection, the legislative history of the
statute immediately following that period, “…evinces the legislature’s intent to prohibit the
issuance of such order of protection without court review.” Id. at 876-7. The case further
illustrates that the legislature curtailed the duration for such order in order to ensure in part, that
parental relationships would not be unduly burdened absent periodic review to ensure that such
parental/familial disruptions were not unwarranted. For example, the memorandum in support of
the 1989 amendment clearly states that, “…other dispositional provisions of child protective
proceedings have a limited duration and require a hearing for extension. Those provisions insure
periodic review of the need for extension, complaince with the order, and the progress of the
family.” Id. at 877.
Were the court to issue an extended order of protection in contrast to a concurrent order
limited to the duration of the dispositional period, Mr. Limardo would not have an opportunity to
demonstrate to the court his progress, service compliance and any level of rehabilitation that
would warrant a less restrictive intervention between the respondent and his family. Such
interpretation of the statute does not conform with the legislative intent evidenced by the F.C.A.
§1056 amendment in 1989. Instead a more restrictive application might deter Mr. Limardo from
gaining access to his biological children which would be contrary to the bill’s intent. In contrast,
where the respondent’s relationship is remote, the 1990 Amendment to F.C.A. 1056 omits any
rehabilitative considerations for the relationship between the caretaker and child from the

9. traditional analysis of the best interest of the child in determining the duration of an order of
protection. For example, in the F.C.A. §1056 practice commentary the court notes that,
“Permitting a protective order until the child’s majority when the individual is neither related nor
a member of the household is logical; unlike a parent or other related person, the relationship is
attenuated and almost always not worthy of preservation or rehabilitation.” See McKinney’s
Family Court Act §1056, Practice Commentary by Professor Merril Sobie.
3. AUTHORITATIVE CASELAW AS IT PERTAINS TO 1056(4)
Absent is any named authority which permits the court to omit the phrase related by
blood or marriage to a member of the child’s household from §1056(4). The dicta resulting from
cases that apply F.C.A. §1056(4) does not expressly address the facts at hand. Instead these
cases refer to respondents who are either the biological parent of the subject child or whom are
married to the non-respondent. These holdings do confirm that F.C.A. §1056(4) does not apply
in cases where a respondent is related by blood or marriage to the child or a member of the
child’s household. For example, in Matter of Cayuga County Health & Human Servs. V. Dennis
E.M., 303 A.D.2d 1053 (2003), the Appellate Division vacated the family court order of
protection and found that where the respondent is the biological father of the subject child and
married to her mother, the court must apply F.C.A. §1056(1). “Subdivision (4) applies to a
person ‘who is no longer a member of the household at the time of disposition and who is not
related by blood or marriage to the child or a member of the child’s household’ (emphasis
added).” See Matter of Cayuga County Health & Human Servs. V. Dennis E.M.. Id. at 1054.
The court applied this interpretation in In re Candace S. where the holding also stated that the
court was not authorized to extend the order of protection against the biological father beyond
the initial duration of the order of disposition. See In the Matter of Canace S.., 832 N.Y.S.2d

10. 612, 615. And the third department also followed this interpretation in In re Collin H., 28
A.D.3d 806 (2006), where the court held that a no-contact order of protection for a neglected
child against her stepfather could expire no later than the expiration date of the underlining order
in the neglect proceeding subject to extensions sought by the petitioner. See In re Colin H., Id. at
809-10.
While the preceding cases do not pertain to a respondent who is related by blood or
marriage to a child in the same home as the affected child they do illustrate that the court may no
longer issue a final order of protection beyond the scope of the initial dispositional period
pursuant to F.C.A. §1056(4). The respondents in the above referenced cases were all subject to
the court’s jurisdiction after F.C.A §1056 was amended in 1990. As a result the court could not
extend jurisdiction over the respondent beyond the initial dispositional period absent periodic
review. For example in, In Clifford B. v. Commissioner of Social Services of City of New
York,164 A.D.2d 838 (1990), “the court impliedly held that although in 1986, the Family Court
had the authority to issue an order of protection for a duration longer than that of the
dispositional order, in 1990 it no longer had such authority.” See Id. at 838.
4. CONTRADICTORY CASELAW AS IT PERTAINS TO F.C.A. §1056(4)
The court must also consider a limited number of cases that do not fall within the purview
of the proceeding analysis. Instead these holdings rely on F.C.A. § 1056(4) to issue extended
orders of protection beyond the period of disposition for the underlining neglect or abuse. In
Matter of Esther CC., 194 A.D.2d 949 (1993) the court upheld an order of protection against the
child’s biological father extending until her eighteenth birthday and dismissed that father’s plea
to reduce the order. The court instead reasoned that the order could be modified and did not
indefinitely sever the father’s right to visitation. See Id. at 951. In Matter of Victoria H., 255

11. A.D.2d 442 (1998), the court also upheld a family court decision to issue an order of protection
against a biological father on behalf of two subject children until they each reached their 18th
birthday. See Id. Similarly in the Matter of Shaun X, 228 A.D.2d 730 (1996), the court also
issued an order of protection on behalf of the child until the child reached the age of majority.
See Id at 732.
The New York State Family Courts and Supreme Court, Appellate Division, Third
Department widely critique these holdings. In two notable decisions, In the Matter of Gabriel
A., 5 Misc.3d 479 (2004) and In the Matter of Colin H., both the Family Court, Queens County
and the Appellate Division concluded that these holdings cannot be reconciled with the
legislative history and wide body of case law pertaining to F.C.A. §1056(4). In Matter of
Gabriel A the court denied an ACS motion for a no-contest order of protection against the child’s
father until the child’s eighteenth birthday. The court noted that while bound by the Second
Department precedent, “…this court finds it impossible to reconcile the decision in Matter of
Victoria H., with the plain language of Family Court Act §1056(4).” The court further noted,
“..if this court were to follow the precedent set by Matter of Victoria H., it would be acting in
clear violation of Family Court Act § 1056 (4) as well as a violation of Family Court Act §1056
(1).” See Matter of Garbriel A., at 484. The court also critiqued Matter of Shaun X for
misapplying F.C.A. §1056(4). See Id. at 483.
In Matter of Collin H., 28 A.D.3d 806, 812 N.Y.S.2d 702 (2006), the appellate division,
third department also noted that the holdings in Matter of Shaun X and the Matter of Esther C.C.
must be disregarded as contrary to 1056(4). Collin H. does note one case, Matter of Child
Protective Servs., which relies on F.C.A. §1056(4) to extend family court jurisdiction over non-
relatives and household members in contrast to the court’s limited jurisdiction over the

12. respondent during the period of disposition. See Matter of Child Protective Sers., 7 Misc.3d
1017(A), 2005 WL 1021565 [2005]. However Collin H. rejects the court’s analysis in Matter of
Child Protective Servs., “…as it is not sufficient to overcome the clear language of §1056(1) and
(4), which expressly limits the duration of orders of protection in neglect (and abuse) cases, and
legislative efforts to amend that limitation have been unsuccessful.” See In the Matter of Colin
H. at 809-10. As a result Matter of Shaun X, Matter of Esther C.C. cannot be used to apply
F.C.A. 1056(4) to the respondent in this case.
CONLUSION
The issue presented in this memorandum is whether the court may issue a final order of
protection against the respondent on behalf of the subject child Elijah Torres until his eighteenth
birthday, where the respondent is related by blood to a member of the child’s household.
F.C.A. §1056(1) authorizes the court to make an order of protection in assistance or as a
condition of any other order made under F.C.A. §1056(1). Such an order of protection shall
remain in effect concurrently with, shall expire no later than the expiration date of, and may be
extended concurrently with, such other order made under this part, except as provided by F.C.A.
§ 1056(4). See F.C.A §1056(1). In 1990 the People of the State of New York Amended
F.C.A. § 1056(4) to include a provision stating that the court may enter an order of protection
independently of any other order made under this part, against a person who was a member of
the child’s household or a person legally responsible as defined in §1012, and who is no longer a
member of such household at the time of the disposition and who is not related by blood or
marriage to the children or a member of the child’s household. An order of protection entered
pursuant to this subdivision may be for any period of time up to the child’s eighteenth birthday

13. and upon such conditions as the court deems necessary and proper to protect the health and
safety of the child and the child’s caretaker. See F.C.A. §1056(4).
. Mr. Limardo is the biological father of two children who reside in the home with the
subject child Elijah Torres. As a result he clearly falls within the purview of F.C.A. §1056(4).
Thus any order of protection issued by the court on behalf of Elijah may not extend beyond the
dispositional period of supervision following the underlining neglect case.