Janet S.M.M. v. Commissioner of Social Services

• Citation: 601 N.Y.S.2d 781,158 Misc.2d 851
• Parties: .M.M., Petitioner, v. COMMISSIONER OF SOCIAL SERVICES, Ricardo I. and Lorraine P., Respondents. Family Court, Westchester County
• Decision Date: 18 August 1993
• Court: New York Family Court

Page 781

601 N.Y.S.2d 781

158 Misc.2d 851

In the Matter of a Proceeding Under Article 6 of the Family Court Act JANET S.M.M., Petitioner, v. COMMISSIONER OF SOCIAL SERVICES, Ricardo I. and Lorraine P. Respondents.

Family Court, Westchester County.

Aug. 18, 1993.

Robert L. Cohen, New York City, for Janet S.M.M., petitioner.

Marilyn J. Slaatten, Westchester County Atty., for respondent, Commissioner of Social Services (Diane Trabocchi, White Plains, of counsel).

Frazier Davidson, New Rochelle, for Ricardo I., respondent-Father.

Naomi Duker, White Plains, for Lorraine P., respondent-Mother.

Mary Jean Howland, Law Guardian.

HOWARD SPITZ, Judge.

This custody proceeding pursuant to Family Court Act, section 651 concerns Baby Girl P., a child almost 2 1/2 years old, who was placed in foster care by her mother shortly after birth. The petitioner, who is a friend of the father, commenced this proceeding seeking custody of the child. Respondent, Commissioner of Social Services, moves to dismiss the petition on the ground that the petitioner lacks standing to petition for custody as she is a stranger to the child, having had no previous relationship whatever with her.

Facts

The child was born out of wedlock on April 6, 1991 with a positive VDRL for syphilis and a positive toxicology for cocaine. Respondent mother voluntarily placed the child with respondent Commissioner on April 23, 1991 and she has been living with foster parents ever since. The foster parents have statutory standing to be heard and were granted leave to intervene [Social Services Law § 383(3) ]. The child's natural father is presently incarcerated, having been convicted in Bronx County Supreme Court on May 12, 1992 on several counts of first degree rape and first degree sodomy and was sentenced to 10 to 20 years' imprisonment. He was adjudicated the biological father of the subject child by an Order of Filiation on December 11, 1992.

The petitioner commenced this proceeding on March 11, 1993 against the father, mother and the Commissioner of Social Services. She alleges in her petition that she has a relationship with the child's father, who is incarcerated, is pursuing custody of his daughter and feels she would be a suitable caretaker and provider for the child and that she plans to marry the child's father in the future.

It should be noted that a proceeding to terminate parental rights is presently pending against the child's parents [Social Services Law § 384-b]. The mother of the child has indicated that in the event the parental rights of the child's father are terminated, she would be willing to execute a surrender, thereby freeing the child for adoption.

The threshold issue before this court is whether the petitioner has standing to seek custody of the subject child as a non-parent, having no relationship to her by blood or marriage and having had no physical contact with the child.

In order to determine this issue, it is essential to review and evaluate the three pertinent statutes relative to custody (DRL 70; DRL 240; and FCA 651) as well as the case law on the subject.

The Law

The following definition of standing was enunciated by the United States Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361, 1364-65, 31 L.Ed.2d 636 (1972):

"Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a "personal stake in the outcome of the controversy", Baker v. Carr, 369 US 186, 204 [82 S.Ct. 691, 703, 7 L.Ed.2d 663], as to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution".

For the reasons set forth below, this court does not believe the petitioner has satisfied this standard. The three statutes that grant standing to parties in custody and visitation matters are:

1. Domestic Relations Law ("DRL") section 70(a).

2. DRL section 240.

3. Family Court Act ("FCA") section 651(b).

DRL section 70(a) specifically grants standing to "either parent" to "apply to the supreme court for a writ of habeas corpus" regarding adjudication of custody and visitation matters. In all cases there shall be no prima facie right to custody in either parent. Since this action involves a custody dispute between a non-parent and a parent, section 70(a) does not apply.

Similarly, while DRL section 240 is silent as to who may petition the court in a custody dispute, the focus is on parents. Section 240(1) states in part:

"In any action or proceeding brought ... to obtain by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court must give such direction, between the parties, for the custody and support of any child of the parties, as, in the court's discretion, justice requires ... In all cases there shall be no prima facie right to custody of the child in either parent."

In this context the term "parties" refers primarily to parents. The term "parents" is most easily substituted for "parties" in the phrase "child of the parties" with little, if any, change in meaning. In common parlance, when we speak of someone's child, we are usually referring to the child's parents. The statute on its face, therefore, appears to use the terms "parents" and "parties" interchangeably. It is also significant to note that the last above-quoted sentence of DRL section 240(1) is also contained in DRL section 70(a) which applies exclusively to parents.

Section 240(1) further uses the terms "parents" and "parties" interchangeably, as demonstrated when it continues:

"Such direction shall make provision for child support out of the property of either or both parents ... Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties".

Subdivisions 1-a through 2 are largely a guide on how to compute child support based upon parental income. Section 240(3)(2) permits the court to issue an Order of Protection which "may require any party ... to permit a parent to visit the child at stated periods". Although section 240 does not specifically limit standing to parents, the close proximity of the terms "parents" and "parties", the apparent use of the terms interchangeably, especially in the phrase "child of the parties", and the focus on parental means in computing child support, demonstrate that the statute was intended to apply primarily to custody disputes between parents. Section 240 is, therefore, of limited utility here where petitioner is a non-parent having no relationship by either blood or marriage to the child.

FCA section 651(b) states:

"When initiated in the family court, the family court has jurisdiction to determine, with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors."

The instant custody petition was initiated in the family court, and therefore, section 651(b) applies. The question presented is: to what extent does family court have jurisdiction over custody matters? More specifically, what powers does the family court possess "in addition to" those of the supreme court to hear such matters? The language of the statute indicates that the family court's jurisdiction to hear custody cases is broader than the supreme court's (Whalen v. Commissioner, 152 Misc.2d 251, 575 N.Y.S.2d 631). Like DRL section 240, FCA section 651(b) is silent as to precisely who has standing to petition. We must, therefore, examine the case law.

A mere friend who is unrelated by either consanguinity or marriage and who has no legal obligations to a child cannot petition for custody without a specific statutory grant of standing [Valasquez v. Jankowski, NYLJ, 11/17/78, p. 14, col. 1; Roland v. Brezenoff, 108 Misc.2d 133, 135, 436 N.Y.S.2d 934].

In Velasquez, supra, a former stepparent was denied standing to petition for custody. The court analogized to the well-established rule that statutory child support obligations cease when the stepparent relationship ceases by death, divorce, or otherwise [FCA § 415; Ruben v. Ruben, 123 N.H. 358, 362, 461 A.2d 733; Kaiser v. Kaiser, 93 Misc.2d 36, 38-39, 402 N.Y.S.2d 171; see Swain v. Swain, 250 Cal.App.2d 1, 7, 58 Cal.Rptr. 83]. Once the stepparent relationship ceased, the petitioner's legal obligation to support the child ceased. Without any legal obligation to the child, the petitioner had no standing to petition for custody [Velasquez v. Jankowski, supra].

The facts of Roland v. Brezenoff, supra, are strikingly similar to those of the case at bar. In Roland, the court denied standing under FCA section 651(b) to a former boyfriend of the child's mother who attempted to petition for custody when the mother voluntarily placed the child with DSS. The court found that the boyfriend assisted in the child's care sporadically; that there was "no established family pattern"; and that the relationship between the child and non-parent was "one of friendship and not of kinship".

In the instant matter, as in Roland, supra, the natural mother voluntarily placed her child in the temporary custody of DSS. Unlike Roland, where there was sporadic contact between non-parent and child which did not rise to the level of an "established family pattern", here there has been no contact at all. The record is devoid of any evidence of petitioner ever having met the child. Not only is petitioner's relationship with the child insufficient under Roland and Velasquez, it is...