| Matter of Ender M. Z.-P. (Olga Z.) |
| 2013 NY Slip Op 05829 [109 AD3d 834] |
| September 11, 2013 |
| Appellate Division, Second Department |
| In the Matter of Ender M. Z.-P., Respondent.Administration for Children's Services et al., Respondents; Olga Z., Respondent. OrianneZ., Also Known as Oriana Z., Nonparty Appellant. Rosa B. et al., Nonparty Respondents.(Proceeding No. 1.) In the Matter of Ender M. Z.-P., Respondent. Administration forChildren's Services et al., Respondents; Olga Z., Respondent. Darryl A.H., Also Knownas Daryl A.H., Nonparty Appellant. (Proceeding No. 2.) In the Matter of Orianne Z.,Also Known as Oriana Z., an Infant, Nonparty Appellant. Administration for Children'sServices et al., Respondents; Olga Z., Respondent. Ender M. Z.-P. et al., NonpartyRespondents. (Proceeding No. 3.) In the Matter of Darryl A.H., Also Known as DarylA.H., an Infant, Nonparty Appellant. Administration for Children's Services et al.,Respondents; Olga Z. et al., Respondents. Ender M. Z.-P., Nonparty Respondent.(Proceeding No. 4.) |
—[*1] Geanine Towers, Brooklyn, N.Y., for Ender M. Z.-P., respondent in [*2]proceedings Nos. 1 and 2 and nonparty respondent inproceedings Nos. 3 and 4. Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for LittleFlower Children and Family Services, petitioner-respondent in proceeding Nos. 3 and 4. Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Jacqueline Harounianof counsel), for Rosa B. and Coobeer B., nonparty respondents in proceedings Nos. 1and 3.
In related proceedings pursuant to Social Services Law § 384-b to terminateparental rights and related child custody proceedings pursuant to Family Court Act article6, the children Orianne Z., also known as Oriana Z., and Darryl A.H., also known asDaryl A.H., appeal from (1) an order of the Family Court, Queens County (McGowan,J.), dated February 2, 2012, and (2) an order of the same court dated February 6, 2012,which, after a hearing, granted the petitions of the maternal uncle, Ender M. Z.-P., forcustody of both children. By decision and order on motion of this Court dated March 19,2012, enforcement of the order dated February 6, 2012, was stayed pending hearing anddetermination of the appeals.
Ordered that the appeal from the order dated February 2, 2012, is dismissed asabandoned, without costs or disbursements; and it is further,
Ordered that the order dated February 6, 2012, is reversed, on the law and the facts,without costs or disbursements, the petition of the maternal uncle, Ender M. Z.-P., forcustody of the child Orianne Z., also known as Oriana Z., is denied, and the matter isremitted to the Family Court, Queens County, for a new determination of the petition ofthe maternal uncle, Ender M. Z.-P., for custody of the child Darryl A. H., also known asDaryl A. H., following a forensic evaluation of Ender M. Z.-P.
The standard to be applied in a change-of-custody determination is the best interestsof the children, which must be determined by an evaluation of the totality of thecircumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Vanisha J. [PatriciaJ.], 87 AD3d 696 [2011]). Since child custody determinations depend, in largemeasure, on assessments by the hearing court of the credibility and character of thewitnesses, those assessments are entitled to deference on appeal, and should not be setaside lightly. Nonetheless, this Court's authority in custody determinations is as broad asthat of the hearing court (see Matter of Louise E.S. v W. Stephen S., 64 NY2d946, 947 [1985]; Matter ofJames A.-S. v Cassandra A.-S., 107 AD3d 703 [2013]). Accordingly, while "weare mindful that the hearing court has an advantage in being able to observe thedemeanor and assess the credibility of witnesses, we 'would be seriously remiss if, simplyin deference to the finding of a Trial Judge,' we allowed a custody determination to standwhere it lacks a sound and substantial basis in the record" (Matter of James A.-S. vCassandra A.-S., 107 AD3d at 706, quoting Matter of Gloria S. v RichardB., 80 AD2d 72, 76 [1981]).
The hearing court's determination that it was in the best interests of the child OrianneZ. to move to the home of her maternal uncle rather than remain with her foster parentsfor the purpose of adoption lacks the requisite sound and substantial basis in the record(see Matter of Destiny O.,44 AD3d 951, 952 [2007]; Matter of Takylia B., 24 AD3d 759 [2005]). Once parentalrights have been terminated, there is no presumption favoring the child's biologicalfamily (see Matter of Peter L., 59 NY2d 513, 520 [1983]; Matter of Seasia D. [KareemW.], 75 AD3d 548 [2010], Matter of Alpacheta C., 41 AD3d 285 [2007]; Matter of Zarlia Loretta J., 23AD3d 317 [2005]). Moreover, while the law expresses a preference for keepingsiblings together, the rule is not absolute and may be overcome where the best interestsof each child lie in residing apart (see Matter of Luke v Luke, 90 AD3d 1179 [2011]; Barbara ZZ. v Daniel A., 64AD3d 929 [2009]; Matterof Dunaway v Espinoza, 23 AD3d 928 [2005]; Matter of Tavernia v Bouvia,12 AD3d 960 [2004]). Here, as the children never shared a household, the FamilyCourt erred in concluding that this consideration outweighed the benefit to Orianne ofremaining in her foster home, where she has resided since infancy (see Matter ofVanisha J. [Patricia J.], 87 AD3d at 696; Matter of Williams v Williams, 66 AD3d 1149, 1152[2009]; Matter of Bush vStout, 59 AD3d 871 [2009]; Matter [*3]ofAlpacheta C., 41 AD3d at 285). The record clearly reflects that Orianne has bondedwith her foster family, and is healthy, happy, and well provided for (see Matter of Chastity ImaniMc., 66 AD3d 782 [2009]; Matter of Pryor v Lindsay, 60 AD3d 859 [2009]).Accordingly, the Family Court erred in determining that it was in Oriane's best intereststo move to the home of her maternal uncle rather than remain with her foster parents forthe purpose of adoption, which, the record indicates, is the foster parents' intent (seeSocial Services Law § 383 [3]; Matter of Destiny O., 44 AD3d at 952;Matter of Takylia B., 24 AD3d at 759).
Likewise, we do not find a sound and substantial basis in this record to support theFamily Court's determination with regard to the maternal uncle's petition seeking tochange the custody of the child Darryl A.H. However, unlike our determination withregard to the petition seeking custody of Orianne, we conclude that, with respect to thecustody of Darryl, the Family Court did not have before it sufficient evidence to render"an informed determination consistent with the child's best interests" (Matter of Peek v Peek, 79AD3d 753, 754 [2010]; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013];Matter of Rovenia G.M. vLesley P.A., 44 AD3d 942 [2007]). Although the Family Court held a hearing,absent from this record is any evidence that a full forensic evaluation of the maternaluncle was conducted to determine his fitness as a custodial parent and the suitability ofhis home environment. The court's failure to direct the performance of this forensicevaluation deprived it of evidence that would have been highly probative. Accordingly,the matter must be remitted to the Family Court, Queens County, for a new determinationwith respect to the maternal uncle's petition for custody of Darryl, after the completion ofa full forensic evaluation of the maternal uncle (see Matter of Lamarche v Jessie, 74 AD3d 1341 [2010]; Matter of Jave v Danial, 70AD3d 696 [2010]; Matterof Sahara K., 66 AD3d 1024, 1025 [2009]; Matter of Rovenia G.M. v Lesley P.A., 44 AD3d 942[2007]). We note that, although the maternal uncle's wife is not a party to thisproceeding, the maternal uncle is seeking placement of the child in his home where heresides with his wife, and he testified at the hearing regarding the care that both he andhis wife would provide for the child. Thus, the wife's agreement to voluntarily appear fora forensic evaluation would greatly benefit the court in evaluating the suitability of thematernal uncle's home environment (cf. Matter of Mullings v Foster, 40 AD3d 1102 [2007]).
The appeal from the order dated February 2, 2012, must be dismissed as abandoned,as the children do not seek reversal or modification of any portion of that order in theirbrief (see Sackett v Estate ofKonigsberg, 74 AD3d 777 [2010]; Cerniglia v Church of the Holy Name of Mary, 72 AD3d862 [2010]; Bibas vBibas, 58 AD3d 586 [2009]). Skelos, J.P., Angiolillo, Roman and Cohen, JJ.,concur.