J.W. v. K.M.

• Decision Date: 02 September 2021
• Docket Number: V-00338-17/20C
• Citation: 153 N.Y.S.3d 797,73 Misc.3d 385
• Parties: In the Matter of J.W., Petitioner, v. K.M., K.B. and St. Lawrence County Department of Social Services, Respondents.
• Court: New York County Court

73 Misc.3d 385
153 N.Y.S.3d 797

In the Matter of J.W., Petitioner,
v.
K.M., K.B. and St. Lawrence County Department of Social Services, Respondents.

V-00338-17/20C

Family Court, New York, Franklin County.

Decided on September 2, 2021

Michael J. Phillips, Esq., Attorney at Law, 63 Waterhouse Street, Plattsburgh, New York 12901, for K.B., respondent.

Kevin F. Nichols, Esq., Attorney at Law, 16 Elm Street, Malone, New York 12953, for petitioner.

Tammy L.V. Gordon, Esq., 358 West Main Street, Malone, New York 12953, Attorney for the Child

Stephen D. Button, Esq., County Attorney, St. Lawrence County, 48 Court Street, Canton, New York 13617, for Department of Social Services, respondent.

Gregory LaDuke, Esq., Attorney at Law, 2038 Saranac Avenue Lake Placid, New York 12945, for K.M., respondent.

Robert G. Main, Jr., J.

73 Misc.3d 386

The Court is asked, in this visitation modification proceeding, to determine the future relationship between a young boy and the woman who was his foster mother for a number of years and who had ongoing, judicially sanctioned, visitation with him following his return to his father and until recently. The child's father seeks here to terminate the visitation previously judicially awarded, upon that father's consent, thereby severing contact between the boy and the woman he regards as one of his three mothers. The law compels the

153 N.Y.S.3d 799

Court to grant the father's modification petition. Nonetheless, the Court finds that such a result is contrary to the child's best interests, a determination this Court is precluded from reaching judicially.

On August 21, 2015, St. Lawrence County Family Court entered an order, upon consent, which awarded the petitioning father the sole legal and physical custody of the child C.M. (born on XX/XX/2012). The mother, K.M., a respondent, was awarded supervised visitation. The former foster mother, K.B., also a respondent, was awarded visitation.

In the prior order, upon consent, St. Lawrence County Family Court accepted the parties’ stipulation that extraordinary circumstances existed to support visitation by the former foster mother, respondent K.B. No specific extraordinary circumstances were identified. By its specific language, the order provided that the stipulated determination of extraordinary circumstances, as to visitation, would not be applied to any subsequent custody petition.

On June 24, 2020, petitioner father, filed a petition in this Court to terminate respondent K.B.’s visitation. On July 10, 2020, respondent K.B. filed a petition in this Court seeking sole legal and physical custody of the child (K.B v K.M. and J.W. , Docket No. V-00342-20/20A).

Fact finding commenced on March 19, 2021, and continued on April 16, 2021, May 11, 2021, and July 27, 2021. A Lincoln hearing was held on July 30, 2021. During the course of the

73 Misc.3d 387

fact finding, respondent K.B. withdrew her petition for sole legal and physical custody of the child, leaving only the father's petition to terminate the former foster mother's visitation rights for this Court to determine.

The biological mother did not take an active role in the fact finding and does not take a position regarding the father's petition. The St. Lawrence County Department of Social Services did not actively participate in the fact finding either and sought leave not to participate midway through the fact finding. Such leave was granted.

It is clear from the fact finding evidence that the father and the former foster mother have had an acrimonious relationship over the past several years. Both have filed child abuse reports against the other, most of which have been unfounded. None of them led the St. Lawrence County Department of Social Services to take any further action beyond indication. At fact finding, both the father and the former foster mother failed to prove any of their specific allegations, including the facts surrounding the single indicated report against the father's live-in companion. The caseworker indicated a report for cuts and bruises on the child allegedly inflicted by the father's companion, even though that caseworker admitted that she had not seen any cuts or bruises on the child.

The testimony established two general facts which are critical to this Court's determination. First, the relationship between the father and the former foster mother is, unfortunately, irretrievably broken. Secondly, the child, who loves all three "mothers" in his life, is in the middle of a maelstrom of maternal identification. He appropriately refers to his biological mother as his mother, but he also refers to both the former foster mother and the father's current companion by that same term. This is undoubtedly due to the fact that each, in some way or another, has acted as a mother to him. It will not unduly strain the confidentiality of the Lincoln hearing to indicate here that C.M. loves all three, values the role each plays in his life, does not fear any of them or see any of them as any type of a threat, wants to spend time with all of them, and will be

153 N.Y.S.3d 800

devastated and adversely affected by this result.

The Court directed the parties to submit written closing arguments to assist it in rendering a decision following the close of

73 Misc.3d 388

all proof. The mother and the St. Lawrence County Department of Social Services did not submit a written closing.¹

The former foster mother's written closing argues that the father has failed to prove a change in circumstances and that his petition, therefore, should be dismissed.

The father argues that the best interests of the child are better served by removing the former foster mother from the child's life. Although he does not use the words "change in circumstances" in his closing, it is clear from his factual assertions that the alleged changes in circumstances are the deteriorated relationship between himself and the former foster mother, the unfounded hotline report, the poorly supported report that was indicated, the poor behavior of the child, and his...