| Matter of Gabriel James Mc. |
| 2009 NY Slip Op 02605 [60 AD3d 1066] |
| March 31, 2009 |
| Appellate Division, Second Department |
| In the Matter of Gabriel James Mc., a Child Alleged to beNeglected. Administration for Children's Services, Respondent; Anne Marie Mc., Appellant, etal., Respondent. (Proceeding No. 1.) In the Matter of Jennifer Mc. et al.,Respondents, v Administration for Children's Services, Respondent, and Ann MarieMc., Appellant. (Proceeding No. 2.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and MartaRoss of counsel), for petitioner-respondent in proceeding No. 1. and respondent in proceedingNo. 2. Virginia Geiss, Brooklyn, N.Y., for petitioners-respondents in proceeding No. 2. Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), attorneyfor the child.
[*2]In an abuse and neglect proceeding pursuant to FamilyCourt Act article 10 and a related child custody proceeding pursuant to Family Court Act article6, the mother appeals, as limited by her brief, from so much of an order of the Family Court,Kings County (Danoff, J.), dated March 3, 2008, as denied her motion to dismiss the petition ofthe maternal grandparents in proceeding No. 2 for custody of the subject child and held inabeyance the maternal grandparents' motion in that proceeding for visitation with the subjectchild, pending the determination of the abuse and neglect proceeding.
Ordered that on the Court's own motion, so much of the notice of appeal as purports toappeal as of right from those parts of the order which denied the mother's motion to dismiss thepetition of the maternal grandparents in proceeding No. 2 for custody of the subject child andheld in abeyance the maternal grandparents' motion in that proceeding for visitation is deemed anapplication for leave to appeal from those parts of the order, and leave to appeal is granted(see Family Ct Act § 1112 [a]); and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
When the subject child was removed from the mother's custody pursuant to Family CourtAct § 1028 (see Matter of Gabriel James M., 59 AD3d 448 [2009]), the maternalgrandparents commenced the instant proceeding to obtain custody of the child. The mothermoved to dismiss the proceeding on the ground that the maternal grandparents lacked standing.In the order appealed from, the Family Court denied the motion to dismiss, and held thedetermination of the maternal grandparents' custody petition in abeyance pending receipt of astatus report required by the Interstate Compact for the Placement of Children (Social ServicesLaw § 374-a).
Contrary to the mother's contention, her motion to dismiss the custody petition was properlydenied. Family Court Act § 1017 (2) (a) (i) provides that, upon removal of a child pursuantto Family Court Act § 1028, the child may be placed with a nonrespondent parent,relative, or other suitable person, pending further investigation, and custody may be awarded tosuch a nonrespondent under Family Court Act article 6. The effect of recent amendments toFamily Court Act § 1017 (2) (a) (i) (see L 2005, ch 3, § 10; L 2008, ch 519,§ 1) was to overrule prior case law, which imbued a parent charged with abuse and/orneglect with veto power over the placement of the child with the noncustodial parent or otherrelative (see Matter of Seth Z., 45 AD3d 1208 [2007]; Matter of Tristram K., 36AD3d 147, 152 [2006]).
We note that the record reflects that "conditions exist [in] which equity would see fit tointervene" (Domestic Relations Law § 72 [1]), and which are sufficient to award thematernal grandparents visitation in the best interests of the subject child. Accordingly, themother sets forth no grounds for disturbing the order appealed from. Dillon, J.P., Miller, Belenand Chambers, JJ., concur.