| Matter of Seasia D. (Kareem W.) |
| 2010 NY Slip Op 06089 [75 AD3d 548] |
| July 13, 2010 |
| Appellate Division, Second Department |
| In the Matter of Seasia D. Kareem W., Appellant; Family FocusAdoption Services, Inc., et al., Respondents. In the Matter of Kareem W.,Appellant, v Family Focus Adoption Services, Inc., et al., Respondents. In the Matter ofKaren S., Appellant, v Family Focus Adoption Services, Inc., et al.,Respondents. |
—[*1] Magovern & Sclafani, New York, N.Y. (Frederick J. Magovern of counsel), for respondentFamily Focus Adoption Services, Inc. Deana Balahtsis, New York, N.Y., for respondents Mr. and Mrs. Anonymous. Toba Beth Stutz, Jamaica, N.Y., attorney for the child.
In an adoption proceeding pursuant to Domestic Relations Law article 7, and two relatedcustody and visitation proceedings pursuant to Family Court Act article 6 and DomesticRelations Law § 72, (1) the biological father, Kareem W., appeals from an order of theFamily Court, Queens County (Sherman, J.), dated February 9, 2009, which, upon a decision ofthe same court dated February 2, 2009, made after a hearing, granted the petition to allow Mr.and Mrs. Anonymous to adopt the subject child, and (2) Kareem W. and the biological paternalgrandmother, Karen S., appeal from an order of the same court dated August 12, 2009, whichgranted the motion of the adoptive parents to dismiss their petitions for custody and/or visitation.
Ordered that the orders are affirmed, without costs or disbursements.
In a prior appeal in the subject adoption proceeding, the Court of Appeals determined thatthere was not legally sufficient evidence to support the Family Court's findings, affirmed by thisCourt (see Matter of Seasia D., 46AD3d 878 [2007]), that the extrajudicial surrender by the birth mother [*2]was invalid, and that the biological father, Kareem W., whointervened in the adoption proceeding, met the criteria to establish himself as a father whoseconsent was required before the adoption could proceed (see Matter of Seasia D., 10 NY3d 879 [2008], cert denied subnom. Kareem W. v Anonymous, 555 US —, 129 S Ct 629). Accordingly, the Court ofAppeals reinstated the adoption petition and remitted the matter to the Family Court, QueensCounty, for further proceedings on the petition (id. at 880).
Upon remittitur, the Family Court held a hearing on December 22, 2008, at which, pursuantto Domestic Relations Law § 111-a, it afforded Kareem W. an opportunity to presentevidence relevant to the best interests of the subject child. Kareem W. testified that he could notremember the last time he had seen the subject child, but believed that it was in January 2007.He had stopped visiting the child when the fees for the supervised visitation were no longer paidthrough the Family Court. Further, he could not remember how many times he had visited withthe child during the period when the visits were court-funded, but he admitted that he had missedat least half of them. Kareem W. asserted that it was in the child's best interests to have custodyawarded to him because the paternity test showed that the child "belong[ed]" to him. Whenasked what provisions he would make for the child if custody were awarded to him, Kareem W.responded that he would "take care" of the child and, if he could not, he was certain one of hisfamily members, who lived "all over," would.
The biological paternal grandmother, Karen S., also testified briefly at the hearing. She hadvisited the subject child with her son only three times, had made no attempts to visit or contactthe child on her own, and acknowledged that the child would not recognize her or know who shewas.
In a decision dated February 2, 2009, the Family Court reasoned that it would be in thechild's best interests to be adopted by Mr. and Mrs. Anonymous (hereinafter the adoptiveparents), with whom she had been living since birth, and who had provided a stable and lovinghome in which she thrived. The Family Court observed that, at the hearing, Kareem W. hadfocused almost entirely on his own frustration and sense of unfairness with the "process," hisanger at the pre-adoptive parents, and his sense of "entitlement" to the child. The Family Courtfound that Kareem W. barely acknowledged that the child had interests which were separatefrom his own, and never addressed them. In accordance with its decision, in an order datedFebruary 9, 2009, the Family Court granted the petition to allow the adoptive parents to adoptthe subject child.
While the adoption proceeding was pending, on December 5, 2008, Kareem W. and Karen S.(hereinafter together the appellants) each filed a petition for custody of and/or visitation with thesubject child. Following the issuance of the order granting the adoption petition, the adoptiveparents moved to dismiss the custody and/or visitation petitions on the ground that neitherKareem W. nor Karen S. had standing to seek custody or visitation. The Family Court grantedthe motion in an order dated August 12, 2009. We affirm both orders.
Contrary to the appellants' contention, the validity of the biological mother's extrajudicialsurrender has been determined by the Court of Appeals (see Matter of Seasia D., 10NY3d at 880), and thus may not be relitigated.
Also contrary to the appellants' contention, Kareem W. does not have a protectedconstitutional interest established "simply by biology. The unwed father's protected interestrequires both a biological connection and full parental responsibility" (Matter of RaquelMarie X., 76 NY2d 387, 401 [1990], cert denied sub nom. Robert C. v Miguel T.,498 US 984 [1990]; see Lehr v Robertson, 463 US 248, 262 [1983]). In the case of achild placed for adoption at birth, where the father could have had no more than a biologicalconnection to the child, and there was, thus, no chance for a custodial relationship, theConstitution protects his "opportunity to develop a relationship with his infant son ordaughter" (Matter of Robert O. v Russell K., 80 NY2d 254, 262 [1992]; see Matter ofRaquel Marie X., 76 NY2d 387, 401-402 [1990]). However, this right only exists for theunwed father "who manifests his willingness to assume full custody of the child and does sopromptly" (Matter of Robert O. v Russell K., 80 NY2d at 262). Here, the Court ofAppeals already has determined that Kareem W. failed to [*3]demonstrate such willingness during the crucial six-month periodpreceding the child's placement with the adoptive parents (see Matter of Seasia D., 10NY3d at 880-881; cf. Matter of Raquel Marie X., 76 NY2d 387 [1990]). Accordingly,Kareem W. was entitled only to notice of the adoption proceeding and an opportunity "to presentevidence to the court relevant to the best interests of the child" (Domestic Relations Law §111-a [3]; see Matter of Raquel Marie X., 76 NY2d at 401-402; Matter of FemaleInfant F., 191 AD2d 437, 439 [1993]). He was given such notice and opportunity here.Having heard the evidence presented, the Family Court determined that it was in the child's bestinterests for the adoption to go forward. We find no basis on this record to disturb thatdetermination.
Upon the adoption of the subject child, following the determination that Kareem W.'sconsent to the child's adoption was not required, his parental rights ceased, and he lackedstanding to prosecute a custody and visitation proceeding regarding the subject child (seeDomestic Relations Law § 117 [1] [a]; Matter of Kevin W. v Monique T., 38 AD3d 672, 673 [2007]; Matter of Morgaine JJ., 31 AD3d931, 933 [2006]). While we recognize that Domestic Relations Law § 117 should notbe applied literally where to do so would not serve the best interests of the child, literalapplication is appropriate in this case, "where there is a need to prevent unwanted intrusion bythe child's former biological relatives to promote the stability of the new adoptive family"(Matter of Jacob, 86 NY2d 651, 665 [1995]; see Matter of Peter Z. v Nilda C., 46 AD3d 696, 697 [2007]).Thus, the Family Court properly granted that branch of the adoptive parents' motion which wasto dismiss Kareem W.'s petition for custody and/or visitation.
The Family Court also properly determined that Karen S. lacked standing to seek visitationwith the subject child. Domestic Relations Law § 72 (1) provides a procedural mechanismfor grandparents to acquire standing to seek visitation with a minor grandchild (see Matter of E.S. v P.D., 8 NY3d150, 157 [2007]). A grandparent has standing to seek visitation when either parent isdeceased or where "conditions exist which equity would see fit to intervene" (DomesticRelations Law § 72 [1]). A court should confer standing, "in its discretion, only after it hasexamined all the relevant facts" (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182[1991]). An essential part of the standing inquiry is "the nature and extent of thegrandparent-grandchild relationship. It is not sufficient that the grandparents allege love andaffection for their grandchild. They must establish a sufficient existing relationship with theirgrandchild, or in cases where that has been frustrated by the parents, a sufficient effort toestablish one, so that the court perceives it as one deserving the court's intervention. If thegrandparents have done nothing to foster a relationship or demonstrate their attachment to thegrandchild, despite opportunities to do so, then they will be unable to establish that conditionsexist where 'equity would see fit to intervene' " (id. at 182-183, quoting DomesticRelations Law § 72). In light of the testimony that Karen S. had seen the subject child onlythree times during the child's visitation with Kareem W., and had never made any independentefforts to visit or communicate with the child, who is now six years old, the Family Courtproperly declined to confer standing.
In addition, insofar as Karen S. seeks custody of the subject child, "a nonparent relative takesno precedence for custody over the adoptive parents selected by an authorized agency" (Matter of Pryor v Lindsay, 60 AD3d859, 859 [2009]; see Matter of Peter L., 59 NY2d 513, 520 [1983]; Matter of Linda S. v Krishnia S., 50AD3d 805, 806 [2008]; Matter ofElla J. v Iva J., 4 AD3d 527, 528 [2004]). Thus, the Family Court properly granted thatbranch of the adoptive parents' motion which was to dismiss Karen S.'s petition.
The appellants were not entitled to a hearing on the visitation issue, as the informationbefore the Family Court enabled it to undertake a comprehensive independent review of thatissue (see Matter of Lynda D. v StacyC., 37 AD3d 1151 [2007]; Matter of Marks v Cascio, 24 AD3d 556, 557 [2005]; Matter ofHorowitz v Kelly, 300 AD2d 659 [2002]; cf. Matter of Female Infant F., 191 AD2d437 [1993]). Mastro, J.P., Florio, Belen and Chambers, JJ., concur.