| Matter of Destiny O. |
| 2007 NY Slip Op 08077 [44 AD3d 951] |
| October 23, 2007 |
| Appellate Division, Second Department |
| In the Matter of Destiny O. Kelly O. et al., Respondents; Bryant M.,Appellant. (Proceeding No. 1.) In the Matter of Bryant M., Appellant, v Kelly O., Respondent.(Proceeding No. 2.) |
—[*1] Christine Malafi, County Attorney, Central Islip, N.Y. (Brian B. Mulholland of counsel), forrespondent Suffolk County Department of Social Services in proceeding No. 1. Robert C. Mitchell, Central Islip, N.Y. (Jayne Ann McPartlin and Diane B. Groom ofcounsel), Law Guardian.
In a proceeding pursuant to Social Services Law § 383-c for the judicial surrender of achild in foster care and a related custody proceeding pursuant to Family Court Act article 6, thefather appeals from an order of the Family Court, Suffolk County (Freundlich, J.), dated October12, 2005, which denied his petition in proceeding No. 2, inter alia, for a change of custody of thesubject child from the Suffolk County Department of Social Services to the child's paternalgrandmother and a paternal aunt, and continued her placement with pre-adoptive foster parents.
Ordered that the order is affirmed, without costs or disbursements.[*2]
The father, who is incarcerated, petitioned the FamilyCourt, inter alia, for a change of custody to place the subject child with her paternal grandmotherand a paternal aunt until his release from jail. On October 7, 2005 the child's mother surrenderedher parental rights in a related judicial surrender proceeding. Approximately 1½ hours later,the father was produced in court on his petition. His mother and sister also were present. Thefather was assigned counsel and, after spending approximately 45 minutes with counsel, off therecord, the instant proceeding concluded without any testimony being heard, and the courtscheduled a permanency hearing in a separate proceeding for the adoption of the child. OnOctober 12, 2005 the Family Court, inter alia, dismissed the father's petition in the custodyproceeding. The father appeals. We affirm.
The standard to be applied in a change of custody determination is the best interest of thechild (see Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]; Matter of Takylia B., 24 AD3d759 [2005]). The Family Court had before it sufficient information to make a custodydetermination in the child's best interest (see Friederwitzer v Friederwitzer, supra at94-95; Matter of David B., 2 AD3d725 [2003]). The subject child, who was 1½ years old when the Family Court made thechallenged determination, has lived with her foster family since she was less than one month old.She also resides with her half brother, who was previously adopted into the same foster family.The foster parents are the only parents the child has ever known. It is in the child's best interest tocontinue that stable relationship, rather than be separated from her foster parents in order to livewith her nonparent relatives (see Matter of Peter L., 59 NY2d 513, 520 [1983];Matter of Takylia B., supra; Matter of Jahisha Jaysawnna J., 22 AD3d 383 [2005]; Matter of Ella J. v Iva J., 4 AD3d527 [2004]; Matter of Violetta K. v Mary K., 306 AD2d 480, 481 [2003]).
We do not agree with the position of our dissenting colleague that we cannot determine, onthis record, whether the Family Court properly dismissed the father's petition, inter alia, for achange of custody. Under the circumstances of this case, the Family Court properly dismissed thefather's petition, without a full evidentiary hearing, since he failed to meet his burden of makingsome evidentiary showing sufficient to warrant such a hearing (see Matter of Hom v Zullo, 7 AD3d624 [2004]; Matter of Simmons vBudney, 5 AD3d 389 [2004]; Itchkow v Itchkow, 275 AD2d 442 [2000];Matter of Coutsoukis v Samora, 265 AD2d 482, 483 [1999]). Similarly, the father failedto make an evidentiary showing of, or even allege, a previously uncontemplated change ofcircumstances sufficient to warrant a hearing as to whether, under the totality of thecircumstances, it would be in the child's best interest to live with her paternal grandmother andpaternal aunt until her father's eventual release from jail (see Neftleberg v Neftleberg, 38 AD3d 864 [2007]).
In support of his petition in the custody proceeding, the father proffered only a handwrittennote of unknown origin indicating that he wanted the child to reside with his mother and sister,who resided together in the same household. However, the paternal grandmother and paternalaunt were not parties to this proceeding, and did not formally apply for this relief (see Nir vNir, 172 AD2d 651, 653 [1991]; seealso Matter of Smith v Wood, 38 AD3d 561, 562 [2007]). Thus, it would have beenerror for the Family Court to award them custody (id.). In addition, the father failed toplead or proffer any evidence as to how he planned to provide for the child, other than summarilyexpressing a desire to have her reside with his family members. Under these circumstances, thereis ample support in the record to affirm the Family Court's dismissal of the father's petition in thecustody proceeding without a hearing.
Consequently, contrary to our dissenting colleague's position, the absence from the record onthis appeal of a transcript of any hearing does not require reversal. Moreover, the Family [*3]Court's reference to the permanency hearing scheduled for a futuredate in the separate adoption proceeding, during which the father would be entitled to be heardon the issue of the child's best interest (see Domestic Relations Law § 111-a;Social Services Law § 384-c), was not relevant to its determination of the instant petition.Skelos, Dillon and McCarthy, JJ., concur.
Spolzino, J.P. (dissenting and voting to reverse the order dated October 12, 2005, and remitthe matter to the Family Court, Suffolk County, for further proceedings): Bryant M. is the fatherof Destiny O. The issue presented by this appeal is whether Bryant's petition in proceeding No. 2(hereinafter Bryant's petition or the petition) for custody of or visitation with Destiny wasproperly dismissed. My colleagues conclude that the Family Court had before it enoughinformation to determine Bryant's petition. As I see it, however, the one minute that Bryant spentbefore the Family Court was not sufficient to give the petition the serious consideration that itrequires. I therefore dissent, respectfully.
Bryant submitted his petition on September 20, 2005. He was incarcerated at the time. Thepetition alleges, in addition to Bryant's paternity, only that Destiny was born on April 12, 2004,that the respondent Kelly O., who is Destiny's mother, obtained custody of Destinyapproximately one year prior to the filing of the petition, that an order of protection againstBryant had been "annulled" since February 14, 2005, and that Bryant was requesting custody ofDestiny, as well as visitation with her until his incarceration was concluded.
Bryant's petition in the custody proceeding was returnable in the Family Court, SuffolkCounty, on October 7, 2005. On the same day, the Family Court was scheduled to begin a trial ina proceeding to terminate Kelly's parental rights. The minutes of the proceedings on that dayreflect that the two proceedings were called at the same time, but that the petition with respect toKelly was heard first because Bryant had not yet been produced from jail. Rather than proceed totrial, however, Kelly submitted a judicial surrender petition and thus agreed to surrender Destinyto the custody of the Suffolk County Department of Social Services (hereinafter the DSS). TheDSS then orally moved to withdraw its petition for the termination of Kelly's parental rights, andthe Family Court granted the oral motion. After a short colloquy, in which Kelly admitted thatBryant was Destiny's father, and the Family Court acknowledged that paternity testing hadestablished that fact with 99% certainty, the Family Court accepted Kelly's surrender at 9:34 a.m.
Bryant was brought into the courtroom at 11:04 a.m. The Family Court advised him that hehad "a right to be heard on the best interest of the child consistent with the permanency plan,"and that he had a right to counsel with respect to the petition. In response to that advice, Bryantrequested that an attorney be appointed for him. The Family Court appointed Richard Gold asBryant's counsel. Bryant left the courtroom with Gold one minute later. The transcript does notreflect their return. At 11:52 a.m., however, the Family Court noted that the first permanencyhearing would be held on October 31, 2005 and the proceedings were concluded.
The record with which we have been presented by the Family Court on this appeal [*4]does not contain minutes from any other proceeding at whichBryant was present or any evidence or argument that was presented with respect to this matter.The only other minutes in the record are minutes of proceedings held on October 12, 2005, whichreflect only the Family Court's statement that a decision had been rendered with respect toBryant's petition, and that the proceeding was dismissed.
The decision to which the Family Court referred is dated October 12, 2005. It recites the factthat Bryant is Destiny's father, as was established in the proceedings on October 7, 2005. Thedecision further reflects the Family Court's determination, made "[a]fter hearing testimony andreviewing all the relevant petitions," that Bryant "summarily asserts that it would be in Destiny'sbest interest to live with his mother, the paternal grandmother, and aunt," that "[t]he Countyvehemently oppose[s] the application and asserts that [Bryant] has had no contact with the child,"that "DSS had offered visits to [Bryant] with Destiny, but he never took advantage of such offer,"that "Destiny is presently living in a pre-adoptive foster home with her half-sibling, Jordan, whohas already been adopted by the family," and that "[t]he permanency plan for Destiny is [for her]to be adopted." None of these "facts," however, appear in the petitions in either of theproceedings before us and there is no mention, at least in the record that is before us, of anyanswer that was submitted or any testimony or other evidence that was adduced at a hearing. Onthe basis of these "facts," the Family Court dismissed Bryant's petition, concluding that Bryant'srequest for custody would not be consistent with the permanency plan for Destiny, and that it wasin Destiny's best interest to continue in foster care on a course toward adoption.
In my view, the absence of any record of the hearing to which the Family Court referred, andthe lack of any evidence in the record to support the facts upon which the Family Court'sdetermination was based, preclude our affirmance of the Family Court's order. "A biologicalparent has a right to the care and custody of a child, superior to that of others, unless the parenthas abandoned that right or is proven unfit to assume the duties and privileges of parenthood,even though the State perhaps could find 'better' parents" (Matter of Michael B., 80NY2d 299, 309 [1992]). The fact that Bryant was incarcerated at the time he submitted hiscustody petition, while relevant, does not in itself foreclose the possibility that awarding himcustody may nevertheless be in Destiny's best interest, if not now, then in the future (seeMatter of Gregory B., 74 NY2d 77, 88-89 [1989]; Matter of Depuy-Wade v Wade,298 AD2d 655 [2002]; Matter of Latasha F., 251 AD2d 1005, 1006 [1998]).
It may be that Bryant has abandoned his right to custody of Destiny, but there is nothing inthis record to support that conclusion. It is also entirely possible that Bryant waived any right tocontest the parenting plan that calls for Destiny's adoption, but that is not established by therecord either. Even if Bryant were entitled only to contest the issue of what is in Destiny's bestinterest, however, as the Family Court advised him, a hearing was required with respect to thatissue (see Matter of Ling Da Chen vYue Hua Zhou, 39 AD3d 753 [2007]). The record before us does not reflect that such ahearing was ever held. The record before us also does not reflect, at least insofar as I have beenable to discern, the information that my colleagues find to have been a sufficient predicate for theFamily Court's determination as to the best interest of Destiny. I would therefore reverse theorder of the Family Court, reinstate the petition, and remit the matter to the Family Court forfurther proceedings.[*5]