In the Matter of Veronica G. v. Monroe County Dept. of Human & Health Servs., 2004 NY Slip Op 50768(U) (NY 7/8/2004)
| Decision Date | 08 July 2004 |
| Docket Number | V06012-04. |
| Citation | 2004 NY Slip Op 50768(U) |
| Parties | IN THE MATTER OF A CUSTODY/VISITATION PROCEEDING under Article 6 of the Family Court Act, VERONICA G., Petitioner, v. MONROE COUNTY DEPARTMENT OF HUMAN AND HEALTH SERVICES, TIFFANY J., BERNARD M., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Lori-Ann Ricci, Esq., for DHHS.
Thomas A. Rohr, Esq., for petitioner.
Steven R. Weisbeck, Esq., Law Guardian.
Petitioner Veronica G on May 11, 2004 filed a petition under Article 6 of the Family Court Act seeking custody of Sheryl M (DOB 11/25/02). By this motion the Department of Human and Health Services ("Department") seeks to dismiss the custody petition. The Department argues that the great-aunt lacks standing, failed to state a cause of action, and is not acting in accord with public policy and that the petition is not in the best interests of the child. For the reasons set forth below, the Department's motion to dismiss the petition is denied.
Sheryl has been in the custody and care of DHHS since November 26, 2002, the day after she was born, when she was removed by emergency removal in an article 10 neglect proceeding (NN 07416-02). Since November 26, 2002, Sheryl has remained continuously in the custody of foster parents who are ready and willing to adopt her, when and if she is freed for adoption. The Department's motion papers state that the Department "has petitioned the Court to terminate the parental rights of the child's parents in order to begin the process of freeing the child for the purposes of adoption by her current foster parents." It appears that the foster parents comprise the only family Sheryl has ever known, and not surprisingly, the law guardian supports the Department's motion to dismiss the great-aunt's custody petition. However, the issue before the court is a legal one, and bonding facts are irrelevant at this time.
The child was approximately 18 months old at the time petitioner filed for custody.
At that time, termination petitions were pending against both of Sheryl's parents. Two days after petitioner filed for custody, this court made a finding of abandonment against Bernard M, the child's father, and on May 19, 2004 his parental rights were terminated (B 11465-03). On June 30, 2004, while this motion was pending, Sheryl's mother consented to a permanent neglect finding in the termination proceeding against her (B 1951-04). The matter has been set for a dispositional hearing. That dispositional hearing could result in a dismissal of the petition, a suspended judgment, or commitment of the guardianship and custody of the child to the Department, on such conditions as the court deems proper, if any, and with a prompt permanency hearing under FCA 1055-a. (FCA § 631, 634). Under 1055-a (6), the appropriateness of the child's service plan is to be reviewed, and the child could be placed for adoption, referred for legal guardianship, or placed permanently with a fit and willing relative. The great-aunt could be such a relative.
The lack of standing basis for the motion to dismiss has no merit. Even the Department admits that FCA § 651 is silent as to who in addition to parents may petition for custody, other than grandparents, and it is common knowledge that all sorts of relatives, and non-relatives, routinely petition for custody in Family Court.1 Matter of Janet S. M. M. v. Commissioner of Social Servs. (158 Misc2d 851), cited by the Department for the proposition that a non-parent seeking custody must have some established caretaking or legal relationship with the child, does not actually support the Department's motion. It says (at p. 857):The question of standing to petition for custody is largely a question of whether the petitioner has an interest in the welfare of a child. The court, in exercising its jurisdiction, "acts as parens patriae to do what is best for the interest of the child" (Finlay v. Finlay, 240 NY 429, 433). In accordance with this rule, Matter of Trapp v. Trapp (126 Misc 2d 30) held that anyone with an interest in the welfare of the child has standing to petition for custody under Family Court Act § 651.
The Janet S. M. M. Court went on to find a girlfriend of the incarcerated father in that case had no standing to sue for custody, saying (at 857-858):
Petitioner has no blood, marital, caretaking, or social relationship with the child and is, in effect, a complete stranger to her. Granting standing to such a person would open the floodgates of litigation and unduly burden and complicate custody proceedings. As the court in Matter of Humphrey v. Humphrey (supra) cogently observed, the Family Court Act was "designed to prevent spurious and malicious suits . . . by disgruntled third parties who may not approve of the life style of the parent or the manner in which the child is being raised" (supra, at 178). Taken to its outermost limits, courts would be required to entertain each and every petition brought by strangers, subjecting parents and custodians to defend such proceedings and creating an environment of confusion and instability ad absurdum.
Obviously, in the case at bar, the great-aunt is allegedly a blood relative of the child and as such can be presumed to have the natural interest in the well-being of Sheryl which is reflected by the filing of her custody petition. Petitioner's status as a blood relative, albeit a somewhat distant one, has not been contested. Blood relations appear critical. (See Luther v. Rate, 226 AD2d 803 non-relatives not given standing against matrimonial grandmother regarding custody of child; Cindy P v. Danny P, 206 AD2d 615 former step-parent did not have standing to assert legal action for visitation despite agreement granting him visitation; cf. Matter of Ronald FF v. Cindy GG, 70 NY2d 141, holding visitation rights may not be granted to biological stranger where child is in custody of the mother.) Thus, the court acting as parens patriae can and does find that petitioner, as a great-aunt, has standing.2
The argument made by the Department, that a non-parent seeking custody must have some established caretaking or legal relationship with the child, does not apply to these facts. If the non-parent petitioner here were attempting in reality to obtain custody from one or both parents, that would be true. (See Bennett v. Jeffreys, 40 NY2d 543.) But in the case at bar, petitioner is unquestionably attempting to obtain custody of her grand niece instead of allowing the little girl to be adopted by non-blood-relative foster parents. Termination of the mother's rights with commitment of the guardianship and custody of the child to the Department for adoption by the unrelated foster parents is the Department's express plan for Sheryl. Significantly, the great-aunt has the support of the girl's own father, whose parental rights have been terminated. The mother's position regarding the great-aunt is not known by the Court, but she, too may support the great-aunt. Considering the importance of family and the constitutional protection accorded to family relationships3, it is difficult to imagine how a blood relative supported by one or both parents could possibly lack the necessary standing to sue for custody of a child temporarily in the custody of non-relatives and intended for adoption by them.
The Department alleges that the custody petition fails to allege a cause of action upon which relief can be granted. This argument also has no merit. The petitioner used the standard custody petition form and indicated that the child is in foster care, and that if the petitioner had the child, she would "grow up in a stable environment, [with] proper care, love affection from her natural family". She seeks custody and/or visitation. This is adequate to state a cause of action. The Department's argument implies that the great-aunt seeks to deprive a natural parent of custody and has not stated a basis for doing so under Bennett, supra, while the admitted facts at the time of the filing of the great-aunt's petition were that neither mother nor father had custody of the child. Neither has custody at this time. The father's rights have been terminated and the mother's parental rights appear on the verge of being terminated. The heart of this matter is a dispute between a great-aunt and unrelated foster parents, and the great-aunt's custody petition establishes that dispute. A cause of action is stated.
The Department finally argues that the great-aunt's petition requesting custody of Sheryl is against public policy and against the best interests of the child. This argument has no merit on this motion. The Department and the law guardian are trying to protect the foster family's desire to adopt. This cannot outweigh a blood relative's interest in custody as a matter of law on a motion to dismiss. In Smith v. Offer (431 US 816 at 844-846), the U.S. Supreme Court refused to "dismiss the foster family as a mere collection of unrelated individuals". However, it found only "the most limited constitutional `liberty' in the foster family", as compared to the constitutional protection accorded the natural family, i.e., a "liberty interest that derives from blood relationship, state-law sanction, and basic human right." As a matter of law, and on the facts now known, the foster parents' rights do not defeat the rights of a blood relative, and best interest arguments are premature. Bests interests will be relevant at the termination of parental rights dispositional hearing and the subsequent permanency...
To continue reading
Request your trial