Albertina C. v. Kim C.

• Decision Date: 07 June 2022
• Docket Number: 16077,Docket No. V-06582/18,Case No. 2021-03028
• Citation: 167 N.Y.S.3d 780 (Mem)
• Parties: In the Matter of ALBERTINA C., Petitioner–Appellant, v. KIM C., et al., Respondents–Respondents, Julius G., Respondent.
• Court: New York Supreme Court — Appellate Division

167 N.Y.S.3d 780 (Mem)

In the Matter of ALBERTINA C., Petitioner–Appellant,

v.KIM C., et al., Respondents–Respondents,Julius G., Respondent.

16077

Docket No. V-06582/18

Case No. 2021-03028

Supreme Court, Appellate Division, First Department, New York.

ENTERED June 7, 2022

Steven N. Feinman, White Plains, for appellant.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for Kim C., respondent.

Magovern & Sclafani, Mineola (Frederick J. Magovern of counsel), for Catholic Guardian Society, respondent.

Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.

Renwick, J.P., Oing, Moulton, Kennedy, Mendez, JJ.

Order, Family Court, New York County (Jane Pearl, J.), entered on or about June 30, 2021, which, after a hearing, dismissed maternal grandmother's petition for custody of the subject child, unanimously affirmed, without costs.

"A grandparent has no preemptive statutory or constitutional right to custody surpassing that of persons who might be selected by the agency as suitable adoptive parents" ( Matter of Geneva B. v. Administration for Children's Servs., 73 A.D.3d 406, 899 N.Y.S.2d 606 [1st Dept. 2010] ). Here, the court properly found that it was not in the child's best interests to award the grandmother custody. The grandmother's unsuitability as a custodian for the child was supported by the record, particularly her testimony showing that she still has not acknowledged the mother's culpability in the vicious beating death of the child's older brother ( Matter of Albertina C. v. Administration for Children's Servs., 125 A.D.3d 483, 484, 4 N.Y.S.3d 167 [1st Dept. 2015] ). In addition, the grandmother lacked transparency about her sources of income, and had no plan for the subject child if he were to be released to her custody, other than to call on her children, including the mother, to assist her (see Matter of Elizabeth R. [Brenda P.-H. -–Renzo H.], 162 A.D.3d 562, 75 N.Y.S.3d 420 [1st Dept. 2018] ). Furthermore, it was in the child's best interests to remain in his foster home, where he has lived most of his life and has bonded with the other children and the foster parents, who wish to adopt him (see Matter of Alexander H. v. Sheltering Arms Children & Family Servs., 196 A.D.3d 415, 146 N.Y.S.3d 779 [1st Dept. 2021] ).