Sandy L.S. v. Onondaga Cnty. Dep't of Children & Family Servs.

• Decision Date: 20 November 2020
• Docket Number: CAF 19-00912,999
• Citation: 137 N.Y.S.3d 237,188 A.D.3d 1751
• Parties: In the Matter of SANDY L.S., Petitioner-Appellant, v. ONONDAGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Christina J.W., Respondents-Respondents. Bethanie H. and Tyler S., Intervenors-respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1751

137 N.Y.S.3d 237

In the Matter of SANDY L.S., Petitioner-Appellant,

v. ONONDAGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Christina J.W., Respondents-Respondents.Bethanie H. and Tyler S., Intervenors-respondents. (Appeal No. 2.)

999

CAF 19-00912

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: November 20, 2020

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONER-APPELLANT.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (ERIN WELCH FAIR OF COUNSEL), FOR RESPONDENT-RESPONDENT ONONDAGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES.

AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF COUNSEL), ATTORNEY FOR THE CHILD.

LISA DIPOALA HABER, SYRACUSE, FOR INTERVENORS-RESPONDENTS.

PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In appeal No. 1, appellant—the subject child's great aunt (aunt)—appeals from an order in a proceeding pursuant to Social Services Law § 384-b that, inter alia, terminated respondent mother's parental rights, ordered that petitioner-respondent Onondaga County Department of Children and Family Services (DCFS) is authorized to consent to the child's adoption and ordered that the preadoptive foster parents, intervenors Bethanie H. and Tyler S. (foster parents), could petition to adopt the child. In appeal No. 2, the aunt appeals from an order in a proceeding pursuant to Family Court Act articles 6 and 10 that dismissed her petition seeking custody of the child. We affirm.

Initially, we dismiss the aunt's appeal from the order in appeal No. 1 because she is not aggrieved by that order, insofar as it merely terminated the mother's parental rights and freed the child for adoption (see Matter of Christian C.-B. [Christopher V.B.] , 148 A.D.3d 1775, 1775-1776, 50 N.Y.S.3d 766 [4th Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3877620 [2017] ; see generally CPLR 5511 ). Regardless, we may reach all of the aunt's contentions in our review of the order appealed from in appeal No. 2.

In appeal No. 2, the aunt contends that DCFS did not comply with the statutory requirement to contact her and inform her of her right to seek to become a foster parent or otherwise obtain custody of the child (see Family Ct Act § 1017 [1] ), and that she should therefore not be "penalized" for failing to seek such relief within 12 months of foster care placement (see Family Ct Act § 1028-a ; Social Services Law § 383 [3] ). We reject that contention. At all relevant times, the aunt knew that the child had been placed in foster care, and yet did not express any interest in seeking foster care placement or custody of the child until two years after the child was born. Indeed, the record establishes that, shortly after the child was born, the aunt had declined to be considered a resource for the child because she was already overwhelmed with caring for the child's siblings. Thus, even assuming, arguendo, that DCFS violated its statutory duty to inform the aunt of her right to seek to become a foster parent or obtain custody of the child, we conclude that reversal is not required because the aunt was not prejudiced by such error (see Matter of Giohna R. [John R.] , 179 A.D.3d 1508, 1510, 119 N.Y.S.3d 336 [4th Dept. 2020], lv dismissed in part and denied in part 35 N.Y.3d 1003, 125 N.Y.S.3d 680, 149 N.E.3d 441 [2020] ).

Furthermore, contrary to the aunt's contention, the evidence adduced at the dispositional hearing established that it was in the child's best interests to be freed for adoption rather than to be placed in the custody of the aunt (see Matter of Aaliyah H. [Mary H.] , 134 A.D.3d 1574, 1574-1575, 21 N.Y.S.3d 917 [4th Dept. 2015], lv denied 27 N.Y.3d 906, 56 N.E.3d 900 [2016] ; Matter of Cheyanne V. , 55 A.D.3d 1383, 1383-1384, 864 N.Y.S.2d 645 [4th Dept. 2008] ). Custody petitions filed by extended family of a child should be considered during the dispositional stage of a termination of parental rights proceeding (see Matter of Carl G. v. Oneida County Dept. of Social Servs. , 24 A.D.3d 1274, 1275, 807 N.Y.S.2d 505 [4th Dept. 2005] ). When making a determination on an extended family member's custody petition, there is no presumption favoring the child's natural extended family (see Matter of Peter L. , 59 N.Y.2d 513, 516, 466 N.Y.S.2d 251, 453 N.E.2d 480 [1983] ; Matter of Zarlia Loretta J. , 23 A.D.3d 317, 317, 804 N.Y.S.2d 313 [1st Dept. 2005] ; see generally Matter of Amber W. v. Erie County Children's Servs. , 185 A.D.3d 1445, 1445-1446, 126 N.Y.S.3d 836 [4th Dept. 2020] ). Indeed, a "nonparent relative of the child does not have ‘a greater right to custody’ than the child's foster parents" ( Matter of Matthew E. v. Erie County Dept. of Social Servs. , 41 A.D.3d 1240, 1241, 839 N.Y.S.2d 871 [4th Dept. 2007] ; see Matter of Gordon B.B. , 30 A.D.3d 1005, 1006, 818 N.Y.S.2d 692 [4th Dept. 2006] ; see generally Matter of Thurston v. Skellington , 89 A.D.3d 1520, 1520, 933 N.Y.S.2d 154 [4th Dept. 2011] ).

Family Court's determination that it is in the best interests of the child to free her for adoption by the foster parents is entitled to great deference (see Matter of Elijah D. [Allison D.] , 74 A.D.3d 1846, 1847, 902 N.Y.S.2d 736 [4th Dept. 2010] ), and we see no reason to disturb the court's determinations. Although the record establishes that the aunt is loving and could provide the child with a suitable home, we nevertheless conclude that the best interests of the child supported freeing her for adoption, rather than awarding custody to the aunt (see generally Matter of Lundyn S. [Al-Rahim S.] , 144 A.D.3d 1511, 1512, 41 N.Y.S.3d 343 [4th Dept. 2016], lv denied 29 N.Y.3d 901, 2017 WL 1094667[2017] ).

We note that the child has been in the care of the foster parents since she was five weeks old, has developed relationships with the foster parents' extended family, and has known no other home (see Matter of Burke H. [Richard H.] , 134 A.D.3d 1499, 1502, 23 N.Y.S.3d 776 [4th Dept. 2015] ; Matter of Sophia M.G.K. [Tracy G.K.] , 132 A.D.3d 1377, 1378, 18 N.Y.S.3d 491 [4th Dept. 2015], lv denied 26 N.Y.3d 914, 2015 WL 8816698 [2015] ). Indeed, the child has bonded with the foster parents, who ensured that she was happy, healthy, and well provided for (see Burke H. , 134 A.D.3d at 1502 ; Matter of Chastity Imani Mc. , 66 A.D.3d 782, 782, 887 N.Y.S.2d 203 [2d Dept. 2009] ). We also note that foster...