| Matter of Carolyn S. v Tompkins County Dept. of SocialServs. |
| 2011 NY Slip Op 00450 [80 AD3d 1087] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Carolyn S., Appellant, v Tompkins CountyDepartment of Social Services et al., Respondents, et al.,Respondents. |
—[*1] Joseph Cassidy, Tompkins County Department of Social Services, Ithaca, for TompkinsCounty Department of Social Services, respondent. Abbie Goldbas, Utica, for Jaime S., respondent. Randolph V. Kruman, Cortland, attorney for the children.
Spain, J.P. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered October 1, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of and/or visitation with her grandchildren.
Petitioner is the maternal grandmother of the three children herein: two girls, born in 1999and 2002, who share the same father, respondent Jason XX., and one boy, born in 2006, who hasa different father, respondent Carlos WW. The parental rights of the girls' mother, respondentJaime S. (hereinafter the mother), were terminated for permanent neglect in late 2007 and theboy's father surrendered his parental rights in 2008; those determinations are not in issue. InDecember 2007, respondent Tompkins County Department of Social Services (hereinafter DSS)filed a petition against the girls' father, who is serving a lengthy prison sentence, alleging that hepermanently neglected the girls. In February 2008, DSS filed a petition against the [*2]mother for permanent neglect of her son. The grandmother filed thesubject petition for custody or visitation with all three grandchildren in January 2008.
Family Court consolidated all of the petitions and, after a fact-finding hearing, determinedthat the children had been permanently neglected by their respective parents. The courtsubsequently held a dispositional hearing at which it also considered the grandmother'scustody/visitation petition. In its decision, the court (1) terminated the remaining parental rights,i.e., the mother's rights to her son—which we later affirmed—(Matter of Carlos R., 63 AD3d1243 [2009], lv denied 13 NY3d 704 [2009]) and Jason XX.'s rights to the girls, (2)dismissed the grandmother's petition, and (3) transferred custody of the children to DSS forpurposes of adoption by their foster parents. The grandmother now appeals, supported by themother's brief, arguing that Family Court erred in denying her custody or visitation.
Initially, we find no error in the procedure followed by Family Court. The record does notreflect that the grandmother objected to the consolidation of the petitions, as directed in a March14, 2008 conference order. Further, upon completion of the fact-finding hearing, the grandmotherreceived the full evidentiary hearing to which she was entitled on her Family Ct Act article 6petition (see Family Ct Act § 625 [a]; see also Matter of Seth Z., 45 AD3d 1208, 1211 [2007]; cf. Matter of Carl G. v Oneida CountyDept. of Social Servs., 24 AD3d 1274, 1275 [2005]). Indeed, consideration of such apetition should occur in the context of a dispositional hearing on an underlyingpermanent neglect petition (see Matterof Karen A.O. v Child Protective Servs., 6 AD3d 1100, 1100-1101 [2004]; Matter ofCarl G. v Oneida County Dept. of Social Servs., 24 AD3d at 1275). The record also beliesthe claim that the grandmother's due process rights were thereby violated, or that the lowerstandard of proof at the dispositional phase (see Family Ct Act § 624) prejudicedthe court's best interest analysis.
On the merits, the record fully supports Family Court's determination that it is not in the bestinterests of the children to award the grandmother custody or visitation. The court's finding thatthe children had been permanently neglected (and that the respective other parent's rights hadbeen previously terminated or surrendered) established the extraordinary circumstances needed toconfer standing on the grandmother to pursue custody of the children, which was not disputed(see Matter of Arlene Y. v WarrenCounty Dept. of Social Servs., 76 AD3d 720, 720-721 [2010], lv denied 15NY3d 713 [2010]; see generally Matter of Bennett v Jeffreys, 40 NY2d 543, 549 [1976]).Thus, the court's sole inquiry on the grandmother's custody petition (see DomesticRelations Law § 72 [2] [a]), as with the disposition on the permanent neglect finding(see Family Ct Act §§ 623, 631), was the best interests of the children(see Matter of Star Leslie W., 63 NY2d 136, 147 [1984]). "At this juncture, a nonparentrelative [including a grandparent] takes no precedence for custody over the adoptive parentsselected by an authorized agency" (Matter of Violetta K. v Mary K., 306 AD2d 480, 481[2003] [citations omitted]; see Matter of Peter L., 59 NY2d 513, 520 [1983]; seealso Family Ct Act § 631). "We accord great deference to Family Court's [bestinterests findings and] custody determination, [r]ecognizing the advantageous position of FamilyCourt to evaluate the testimony and assess the credibility of witnesses[,] . . .provided that [they are] supported by a sound and substantial basis in the record" (Matter of White v White, 77 AD3d1073, 1074-1075 [2010] [internal quotation marks and citations omitted]; see Matter of Johnpeer v Williams, 74AD3d 1584, 1585 [2010]).
The grandmother, who is employed full time and has an eighth grade education, lived withher boyfriend and two daughters, ages 12 and 17 at the time of the 2008 hearing. She has helpedcare for the three grandchildren since birth, providing financial and babysitting help, and [*3]they lived with her for weeks at a time during the mother's ongoingstruggle with cocaine addiction since 2002. She loves them, as do her other daughters who havelived with them. The girls were removed from the mother's home for neglect in March 2005 andplaced in the grandmother's care, as was the son shortly after his January 2006 birth, until allthree children were removed from the grandmother's care in August 2006. The removal occurredafter the mother told a visiting caseworker, who so testified, that the children had been livingwith her for about one month, which violated Family Court's order placing custody with thegrandmother and occurred at a time when the mother had recently failed to unsuccessfullycomplete a drug treatment program and was considered a high risk for relapse. The grandmother,supported by the mother and an adult daughter, testified that this was not true, that the childrenwere living with the grandmother and were only at the mother's house for their daily four-hourunsupervised visitation. The mother testified that she lied to the caseworker, believing that itwould persuade DSS that she was able to care for the children and lead to their return to hercustody more quickly. Family Court credited the caseworkers' testimony, expressing "graveconcerns that [the grandmother] will repeat the same actions were she to be granted custody." Wediscern no grounds for disagreeing with the court's first-hand assessment of the veracity of thisconflicting testimony.
After the removal of the children from the grandmother's care, she was permittedunsupervised visitation for a short time and then visits were supervised; they lived briefly withanother relative and were then placed with their current foster parents. All visitation with thegrandmother was ended after a confrontation between the grandmother and a supervisingcaseworker at a July 2007 visit, the details of which were disputed. The caseworker testified thatafter the grandmother made inappropriate statements in front of the children regarding their careand placement, she told her not to engage in adult conversation in their presence; thegrandmother became agitated, raised her voice, openly mocked the caseworker and made furtherstatements about taking the children away from their family. The caseworker reported that shefelt threatened and the children became fearful. The grandmother minimized the incident anddenied raising her voice, but admitted asking about the children's placement; she attributed theepisode to being upset and frustrated about a prolonged period without visits and DSS's failure toreturn her calls.
Another encounter witnessed by the children occurred on Halloween 2007, resulting in policebeing summoned as the children were setting out to trick-or-treat with one of their paternalgrandmothers and the foster parents. The grandmother yelled out from across the street, upset andangry that a paternal grandmother was getting visitation and expressing her views that she did notwant the children adopted by the foster parents and that they should be with family. Anotherangry confrontation occurred at a December 2007 court appearance. The record before ussupports Family Court's conclusion that the grandmother demonstrated "inappropriate andaggressive conduct toward DSS employees in the presence of the children both during asupervised visitation, and during a Halloween event with another biological grandparent."
The testimony further established with regard to the foster parents, one of whom has agraduate degree in developmental psychology, that they have provided a stable, loving home, andthat all three children are happy, thriving in school and have bonded with them. Additionally, thechildren are making progress in therapeutic counseling addressed to their behavioralproblems—such as violence with one another and their peers—and their emotionaltrauma from their upheavals and conflicted feelings.[*4]
Giving due deference to Family Court (see Matter ofWhite v White, 77 AD3d at 1074-1075), there is a sound and substantial basis in the recordfor the determination to deny the grandmother's petition for custody and to retain custody in DSSwith the view toward adoption of the children by their foster parents. Further, given thegrandmother's conduct and open hostility to the foster parents and opposition to the adoption, wewill not disturb the court's determination that visitation would not be in the best interests of thechildren (see Matter of Couse vCouse, 72 AD3d 1231, 1233 [2010]; compare Matter of E.S. v P.D., 8 NY3d 150, 157 [2007]).
Finally, we disagree with the mother's contention that the children were ineffectivelyrepresented at the hearing by their attorney,[FN*]who she alleges failed to adequately express their wishes, and likewise reject the grandmother'srelated claim that Family Court abused its discretion in declining to hold a Lincolnhearing for the two girls. "The decision to interview the children in a custody dispute, althoughpreferable, is not mandatory, but rather lies within the discretion of the trial court" (Matter ofWalker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999][citations omitted]; see Matter of Lincoln v Lincoln, 24 NY2d 270, 273-274 [1969]). Inlight of the testimony about the girls' emotional turmoil, delicate age and concerns about thepossible harmful affects to them, we do not find that Family Court abused its discretion inconcluding, after hearing arguments from all sides including opposition by the attorney for thechildren, that there was no real value in interviewing them (see Matter of Gallogly vGallogly, 291 AD2d 893, 893-894 [2002]). In so ruling, the court noted that the children'slove for and attachment to their grandmother were not disputed. With regard to the representationprovided by their attorney at the hearing, the record reflects a long-standing relationship andinvolvement, as well as active representation on these petitions, and we will not second-guess herposition. There is no evidence that the attorney for the children failed to abide her ethicalobligation in representing them (see 22 NYCRR 7.2).
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The children are represented bya new attorney on appeal, who does not join in the mother's argument.