Michael B., Matter of

• Decision Date: 29 October 1992
• Parties: , 604 N.E.2d 122 In the Matter of MICHAEL B., Catholic Child Care Society of Diocese of Brooklyn et al., Respondents; Marvin B., Appellant; Maggie W.L., Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 60

590 N.Y.S.2d 60

80 N.Y.2d 299, 604 N.E.2d 122

In the Matter of MICHAEL B., Catholic Child Care Society of Diocese of Brooklyn et al., Respondents Marvin B., Appellant Maggie W.L., Intervenor-Respondent.

Court of Appeals of New York.

Oct. 29, 1992.

[80 N.Y.2d 300] [604 N.E.2d 124] Patterson, Belknap, Webb & Tyler, New York City (Stephen P. Younger, Eileen J. Shields and Ellen A. Rothschild, of [80 N.Y.2d 301] counsel), for appellant.

Lenore Gittis, New York City (Marcia Egger, of counsel), for respondent Law Guardian, for Michael B.

[80 N.Y.2d 302] Wallman & Wechsler, P.C., New York City (Lori Ehrlich, of counsel), for intervenor-respondent.

[80 N.Y.2d 303] O. Peter Sherwood, Corp. Counsel, New York City (Francis F. Caputo, Alan G. Krams and Stephen J. McGrath, of counsel), for Com'r of the New York City Dept. of Social Services, amicus curiae.

John C. Gray, Jr., Wanyong Lai Austin, James G. Newman, Martha Raimon, Florence Roberts and Jane Greengold Stevens, Brooklyn, and Martin Guggenheim and Madeleine Kurtz, New York City, for Brooklyn Legal Services Corp. B and another, amici curiae.

OPINION OF THE COURT

KAYE, Judge.

This appeal from a custody determination, pitting a child's foster parents against his biological father, centers on the meaning of the statutory term "best interest of the child," and particularly on the weight to be given a child's bonding with his long-time foster family in deciding what placement is in his best interest. The biological father (appellant) on one side, and respondent foster parents (joined by respondent Law Guardian) on the other, each contend that a custody determination in their favor is in the best interest of the child, as that term is used in Social Services Law § 392(6), the statute governing dispositions with respect to children in foster care.

The subject of this protracted battle is Michael B., born July 29, 1985 with a positive toxicology for cocaine. Michael was voluntarily placed in foster care from the hospital by his mother, who was unmarried at the time of the birth and listed no father on the birth certificate. Michael's four siblings were then also in foster care, residing in different homes. At three months, before the identity of his father was known, Michael--needing extraordinary care--was placed in the home of intervenor Maggie W.L., a foster parent certified by respondent Catholic Child Care Society (the agency), and the child remained with the L.'s for more than five years, until December 1990. It is undisputed that the agency initially assured Mrs. L. this was a "preadoptive" placement.

Legal proceedings began in May 1987, after appellant had been identified as Michael's father. The agency sought to terminate the rights of both biological parents and free the child for adoption, alleging that for more than a year following Michael's placement the parents had failed to substantially, continuously or repeatedly maintain contact with Michael and plan for his future, although physically and financially able to do so (Social Services Law § 384-b[7]. Michael's mother (since deceased) never appeared in the proceeding, and a finding of permanent neglect as to her was made in November 1987. Appellant did appear and in September 1987 consented to a finding of permanent neglect, and to committing custody and guardianship to the agency on condition that the children be placed with their two godmothers. That order was later vacated, on appellant's application to withdraw his pleas and obtain custody, because the agency had not in fact placed the children with their godmothers. In late 1987, appellant--a long-time alcohol and substance abuser--entered an 18-month residential drug rehabilitation program and first began to visit Michael.

In August 1988, appellant, the agency and the Law Guardian agreed to reinstatement of the permanent neglect finding, with judgment suspended for 12 months, on condition that appellant: (1) enroll in a program teaching household management and parenting skills; (2) cooperate by attending and complying with the program; (3) remain drug-free, and periodically submit to drug testing, with test results to be delivered to the agency; (4) secure and maintain employment; (5) obtain suitable housing; and (6) submit a plan for the children's care during his working day (see, Family Ct. Act § 631[b]; § 633). The order recited that it was without prejudice to the agency recalendaring the case for a de novo hearing on all allegations of the petition should appellant fail to satisfy the conditions, and otherwise said nothing more of the consequences that would follow on appellant's compliance or noncompliance.

As the 12-month period neared expiration, the agency sought a hearing to help "determine the status and placement of the children." Although appellant was unemployed (he was on public assistance) and had not submitted to drug testing during the year, Family Court at the hearing held October 24, 1989 was satisfied that "there seem[ed] to be substantial compliance" with the conditions of the suspended judgment. Because the August 1988 order was unclear as to who had responsibility for initiating the drug tests, the court directed that the agency arrange three successive blood and urine tests, and if the tests proved negative, "all subject children may be released to father except Jemel [a 'special needs' child]." The matter was adjourned to December 21, when it was joined with respondents' application for a dispositional order with respect to Michael, whose long residence with the L.'s, they said, raised special concerns.

On December 21, 1989, the Law Guardian presented a report indicating that Michael might suffer severe psychological damage if removed from his foster home, and argued for a "best interests" hearing pursuant to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, based on Michael's bonding with the L.'s and, by contrast, his lack of bonding with appellant, who had visited him infrequently. Family Court questioned whether it even had authority for such a hearing, but stayed the order directing Michael's discharge to appellant pending its determination. Michael's siblings, then approximately twelve, eight, seven and six years old, were released to appellant in January and July 1990. Litigation continued as to Michael.

In November 1990, Family Court directed Michael's discharge to appellant, concluding that it was without "authority or jurisdiction" to rehear the issue of custody based on the child's best interest, and indeed that Michael had been wrongfully held in foster care. The court noted, additionally, that the Law Guardian's arguments as to Michael's best interest went to issues of bonding with his temporary custodians rather than appellant's insufficiency as a parent--bonding that had been reinforced by the agency's failure to ensure sufficient contacts with appellant during the proceedings. Appellant "should not be denied custody simply because of the actions of the [agency] and the lengthy litigation following final disposition has resulted in the foster parents enjoying a stronger emotional tie to the child than the [appellant]." The court directed that Michael commence immediate weekend visitation with appellant, with a view to transfer within 60 days. Michael was discharged to appellant in December 1990.

The Appellate Division reversed and remitted for a new hearing and new consideration of Michael's custody, concluding that dismissal of a permanent neglect petition cannot divest Family Court of its continuing jurisdiction over a child until there has been a "best interests" custody disposition (171 A.D.2d 790, 567 N.Y.S.2d 511). As for the relevance of bonding, the Appellate Division held that, given the "extraordinary circumstances" (Matter of Bennett v. Jeffreys, 40 N.Y.2d, at 544, 387 N.Y.S.2d 821, 356 N.E.2d 277, supra)--referring particularly to Michael's long residence with his foster parents--Family Court should have conducted a hearing to consider issues such as the impact on the child of a change in custody. There having been no question of appellant's fitness, however, the Appellate Division permitted Michael to remain with his father pending the new determination.

On remittal, Family Court heard extensive testimony--including testimony from appellant, the foster parents, the agency (having changed its goal to discharge to appellant), and psychological, psychiatric and social work professionals (who overwhelmingly favored continued foster care over discharge to appellant)--but adhered to its determination that Michael should be released to his father. Family Court found appellant "fit, available and capable of adequately providing for the health, safety and welfare of the subject child, and * * * it is in the child's best interest to be returned to his father."

Again the Appellate Division reversed Family Court's order, this time itself awarding custody to the foster parents under Social Services Law § 392(6)(b), and remitting the matter to a different Family Court Judge solely to determine appellant's visitation rights (180 A.D.2d 792, 580 N.Y.S.2d 430). Exercising its own authority--as broad as that of the hearing court--to assess the credibility of witnesses and character and temperament of the parents, the court reviewed the evidence and, while pointing up appellant's many deficiencies, significantly stopped short of finding him an unfit parent, as it had the power to do. Rather, the court looked to Michael's lengthy stay and psychological bonding with the foster family, which it felt gave rise to extraordinary circumstances meriting an award of custody to the foster parents. According to the Appellate Division, the evidence "overwhelmingly demonstrate[d] that Michael's foster parents are better able than his natural father to provide for his physical, emotional, and intellectual needs." (180 A.D.2d, at 794, 580 N.Y.S.2d 430.) Since...