| Matter of Linda S. v Krishnia S. |
| 2008 NY Slip Op 03225 [50 AD3d 805] |
| April 8, 2008 |
| Appellate Division, Second Department |
| In the Matter of Linda S., Appellant, v Krishnia S. et al.,Respondents. |
—[*1] Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz andBrendan J. McGrath of counsel), for respondent Westchester County Department of SocialServices. Theresa M. Daniele, White Plains, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the petitioner appealsfrom an order of the Family Court, Westchester County (Davidson, J.), dated June 18, 2007,which, without a hearing, dismissed the proceeding.
Ordered that the order is affirmed, without costs or disbursements.
The Westchester County Department of Social Services filed petitions pursuant to FamilyCourt Act article 10 alleging that the subject children, Tai S. and Steven S., had been abused andneglected by Krishnia S., the biological mother of both children, and Brian S., the biologicalfather of Steven. The allegations of abuse and neglect were based on an incident in which themother gave birth to the infant Steven, at home, while the father was asleep in the next room,intoxicated. The mother allegedly gave Tai, who was then eight years old, specific instructions toassist her with the birth of Steven. Following Steven's birth, the mother placed him in a plasticbag and into a basket, while Tai observed. The mother then left Steven on the doorstep of astranger, who found him several hours later. The mother was arrested as a result of this incidentand ultimately pleaded guilty to abandonment and attempted abandonment with respect toSteven, and endangering the welfare of a minor child with respect to Tai. The children wereremoved from the custody of their parents [*2]and ultimately bothwere placed in the custody of the same nonkinship foster home where they have since remained.
Subsequently, the petitioner, the maternal grandmother, filed the instant petition pursuant toFamily Court Act article 6 seeking custody of the subject children. Although the petitioner didnot move pursuant to Family Court Act § 1035 (f) to intervene in the abuse and neglectproceedings, the Family Court simultaneously considered both the abuse and neglect and custodypetitions. However, the Family Court declined to conduct a fact-finding hearing on thepetitioner's custody petition until such time as the neglect proceedings were resolved. Findings ofneglect were eventually made against the parents and both parents subsequently executedconditional surrenders of their parental rights freeing the children for adoption by the fosterparents. Thereafter, the Family Court dismissed the petitioner's article 6 custody petitionconcluding that she did not possess a pre-emptive right to custody of the subject childrensurpassing that of the nonkinship foster parents.
Contrary to the petitioner's contention, the Family Court providently declined to conduct afact-finding hearing on her petition for custody until such time as the neglect proceedings wereresolved (see Matter of Donna KK. vBarbara I., 32 AD3d 166, 168 [2006]; Matter of Logan AA, 14 Misc 3d 690 [2006]). Additionally, oncethe parents executed conditional surrenders of their parental rights freeing the children foradoption by the foster parents, the Family Court properly dismissed the petitioner's custodypetition. "A nonparent relative takes no precedence for custody over the adoptive parents selectedby an authorized agency" (Matter of EllaJ. v Iva J., 4 AD3d 527, 528 [2004]; see Matter of Peter L., 59 NY2d 513, 520[1983]; Matter of Violetta K. v Mary K., 306 AD2d 480, 481 [2003]). Thus, while thepetitioner, as the children's grandmother, is not without statutory rights, "those rights do notentitle a grandparent to override the right of the natural parent to surrender the child to a publicagency and to confer on it the right to consent to the adoption of the child" (Matter of PeterL., 59 NY2d at 520). Accordingly, the Family Court providently dismissed the custodypetition.
The petitioner's remaining contention is without merit. Mastro, J.P., Ritter, Carni andMcCarthy, JJ., concur.