Alfredo S. v. Nassau County Dept. of Social Services

• Decision Date: 01 April 1991
• Citation: 172 A.D.2d 528,568 N.Y.S.2d 123
• Parties: , 59 USLW 2727 In the Matter of ALFREDO S. (Anonymous), Appellant, v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 123

568 N.Y.S.2d 123

172 A.D.2d 528, 59 USLW 2727

In the Matter of ALFREDO S. (Anonymous), Appellant, v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

Supreme Court, Appellate Division Second Department.

April 1, 1991.

Matthew Muraskin (Kent V. Moston and Carol Lewisohn, of counsel), Hempstead, for appellant.

Robert W. Schmidt, Co. Atty. (Patricia M. Carroll and Marilyn Olshensky, of counsel), Mineola, for respondent.

Before THOMPSON, J.P., and KUNZEMAN, SULLIVAN, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a child custody proceeding pursuant to Family Court Act article 6 for custody of Lorraine S., the petitioner appeals from an order of the Family Court, Nassau County (Capilli, J.), dated April 27, 1989, which, after a hearing, dismissed the petition.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petition is granted, and custody of Lorraine S. is awarded to the petitioner.

This proceeding involves a natural father's effort to gain custody of his daughter Lorraine, born out of wedlock on July 31, 1988, from the respondent Nassau County Department of Social Services (hereinafter the Department) to whom the child has been entrusted since her birth pursuant to her natural parents' consent. Lorraine was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant's father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

Meanwhile, on August 5, 1988, only three days after he consented to the child's temporary placement with the Department and five days after the child's birth, the petitioner brought a proceeding for an order of filiation declaring him to be Lorraine's natural father and also sought custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for custody of his daughter on September 8, 1988. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded, inter alia, that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner's custody. The court's determination appeared premised primarily upon the father's admission to the caseworkers that until several months prior to Lorraine's birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner's home was in need of repairs. Notably, the court's decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child's interest. This appeal ensued.

The critical issue presented is whether a sufficient demonstration of extraordinary circumstances has been made to justify an inquiry into the child's best interests. In denying the petitioner father's application for custody, the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent. The principles governing custody disputes between a natural parent and a third person are firmly established in the decisional law. A natural parent has a claim to the custody of his or her child "superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood" (People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 468, 113 N.E.2d 801; see, Matter of Male Infant L., 61 N.Y.2d 420, 426, 474 N.Y.S.2d 447, 462 N.E.2d 1165). Custody disputes of this kind involve a two-step analysis. First, there must be a threshold showing of "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" to justify the State's intrusion into the family domain (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see, Matter of Male Infant L., supra, 61 N.Y.2d at 427, 474 N.Y.S.2d 447, 462 N.E.2d 1165; cf., Matter of Ronald F.F. v. Cindy G.G., 70 N.Y.2d 141, 144, 517 N.Y.S.2d 932, 511 N.E.2d 75). Until the threshold of "extraordinary circumstances" has been satisfied, the second prong of the analysis, i.e., the question of the child's best interests, is not reached (see, Matter of Male Infant L., supra ). In this regard, the burden of demonstrating the existence of "extraordinary circumstances" so as to trigger the need for a best interests hearing is upon the party seeking to deprive the natural parent of custody (see, Matter of Darlene T., 28 N.Y.2d 391, 394, 322 N.Y.S.2d 231, 271 N.E.2d 215; Matter of Nadia Kay R., 125 A.D.2d 674, 676, 509 N.Y.S.2d 862).

Our review of the record reveals that the Department has failed to carry its burden. There is no evidence of any of the extraordinary circumstances enunciated in Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, supra ). Specifically, the Court of Appeals in Matter of Bennett v. Jeffreys, supra, at 544, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 held that "the prolonged separation" of the child and the natural parent may constitute an extraordinary circumstance requiring inquiry into the best interests of the child. While it is true that the petitioner initially relinquished provisional custody of the child to the Department at a time when there was no order of filiation upon which he could base a claim to custody, and the child has not been in her father's custody since her birth more than two years ago, the extended period of separation was not due to an abandonment of the child by the petitioner nor even to a lack of interest or concern in the child's welfare on his part. Indeed, nearly from the day of the child's birth, the petitioner has persisted in his efforts to obtain custody. The period of separation is in large measure attributable to the pace of the instant proceedings, a circumstance over which the petitioner could exercise virtually no control. The Department should not be permitted to deprive the natural parent of custody over an extended period of time and then oppose the custody application of the parent, claiming the prolonged separation constituted an "extraordinary circumstance." Adopting such a position would provide an incentive for the nonparent respondent to prolong the custody proceeding in the hope of gaining an advantage over the natural parent. In sum, under circumstances such as these, although the initial relinquishment of custody was with the natural parent's consent, the separation between the natural parent and the child does not rise to the level of an extraordinary circumstance triggering a best interests inquiry (see, Matter of Male Infant L., supra, 61 N.Y.2d at 428-429, 474 N.Y.S.2d 447, 462 N.E.2d 1165).

Additionally, the record does not clearly demonstrate that the petitioner was unfit to assume the duties of parenthood. The evidence showed that the petitioner was gainfully employed, serious about his responsibilities as a father, and lived in a stable environment with his mother and sister, the latter of whom had agreed to care for the petitioner's daughter if he gained custody. The one-family, three-bedroom house where the petitioner resided was described in the hearing testimony of one of the caseworkers as in need of repair but "neat and clean". Nothing in the record supports the Family Court's finding that the house was "dilapidated". Although the petitioner admitted to the caseworkers that he had been an occasional recreational drug user, he claimed to be drug-free, having discontinued his drug usage four months prior to the child's birth. The Department proffered no evidence that the petitioner was then or ever had been addicted to drugs, was a regular or habitual user of drugs, or was otherwise chemically impaired.

Our dissenting colleagues, while recognizing the apparent inequity in holding a father responsible for a mother's prenatal drug use which resulted in an at-birth positive toxicology for cocaine in the child, nevertheless propose that very result. The dissenters conclude that the mother's prenatal drug use, the child's positive test result for cocaine, and the father's admitted infrequent use of cocaine during a period more than four months prior to the child's birth, constitute sufficient extraordinary circumstances to warrant remitting this matter to the Family Court, Nassau County, for a hearing to determine custody solely based on the best interests of the child. The cases upon which our dissenting colleagues rely in urging this result involve primarily statutory causes of action for neglect based upon parental regular and excessive prenatal and postnatal drug and/or alcohol use (see, Matter of Smith, 128 Misc.2d 976, 492 N.Y.S.2d 331; Matter of "Male" R., 102 Misc.2d 1, 422 N.Y.S.2d 819; Matter of Vanesa "F", 76 Misc.2d 617, 351 N.Y.S.2d 337). A child's positive testing for drugs at birth considered in combination with other evidence indicative of repeated use of drugs by the mother has been held to establish a prima facie case of neglect (see, e.g., Matter of Theresa J., 158 A.D.2d 364, 551 N.Y.S.2d 219; Matter of Stefanel Tyesha C., 157 A.D.2d 322, 556 N.Y.S.2d 280; Matter of Fletcher, 141 Misc.2d 333, 533 N.Y.S.2d 241). In neglect cases, Family Court Act § 1046(a)(iii) further provides that a prima facie case of neglect can be established by proof of repeated use of a drug that could be expected to produce in the user "a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality." Once Family Court Act § 1046(a)(iii) has been triggered, an adjudication of neglect can be based upon proof that there exists a substantial...