161 A.D.2d 459 | N.Y. App. Div. | 1990
Order, Family Court, Bronx County (Marjory D. Fields, F.C.J.), entered on or about November 1, 1989, which granted grandparents interveners’ motion for temporary custody or visitation solely to the extent of granting unsupervised visits with infant M., unanimously affirmed, without costs. Appeal from order of the same court, entered on or about November 15, 1989, which directed all counsel to provide a list of all witnesses to be called and make offers of proof with respect to each witness, dismissed as subsumed in the subsequent order entered on December 22, 1989, without costs. Order, same court and Justice, entered on or about December 22, 1989, which denied grandparents intervenors’ motion for reargument of the November 15, 1989 order, and precluded the parties from offering testimony at trial for failure to comply with said order, unanimously modified, on the law, the facts in the exercise of discretion, to the extent of granting the parties a 30-day extension to provide witness lists and offers of proof, and otherwise affirmed, without costs.
In this case, the Department of Social Services brought the underlying petition alleging physical and sexual abuse by the husband and neglect by the wife, who have between them five children. R. and S. aged 17 and 7, are the natural sons of the husband, by a previous marriage; their mother is deceased.
Appellants herein, who have been granted intervenor status, are the maternal grandparents of J., C. and M. They sought unsupervised visitation and/or custody of the three girls, as well as S., who is concededly not a blood relation to them. Mr. B., the natural father of J. and C., has also been granted intervenor status and is seeking custody of the two older girls.
Pending the outcome of the dispositional hearing as to the wife,
The grandparents now contend that the trauma of the alleged abuse has been exacerbated by the court-imposed separation of the children from the grandparents. The grandparents also now state that they believe the allegations of abuse.
The Family Court properly denied temporary custody or visitation as to J. and C. It is noteworthy that the girls have affirmatively expressed a desire not to live with their grandparents. While public policy may favor either placing the children with a relative or allowing visitation (see, Family Ct Act § 1017), we do not believe it to be in the best interest of these two adolescent girls to foist upon them visits with, let alone place them in the custody of, the grandparents who denounced them when they disclosed that they had been sexually abused.
Likewise, we will not modify the order regarding S., who is not a blood relative of the grandparents, and who was also permitted to see them when he expressed a desire to do so.
We are also in agreement with the Family Court that it is appropriate to permit visits with three-year-old M. She was
Finally, while we uphold that portion of the order requiring all counsel to provide the court with witness lists and offers of proof,
Accordingly, the December 22, 1989 preclusion order is modified to the extent of granting the parties 30 days, following service of the within decision and order, to provide the court with witness lists and offers of proof, and except as so modified, the orders appealed from are affirmed. Concur— Sullivan, J. P., Carro, Milonas, Kassal and Smith, JJ.
Because of his age, R. is not part of the instant proceedings.
The dispositional hearing as to the husband has been severed, because he is incarcerated.
This appears, however, to be an equivocal acknowledgment at best. Significantly, the grandparents’ reply brief states "to require that grandparents must believe all of the allegations, before a hearing or a trial * * * is Orwellian” (emphasis in original). Moreover, they attempt to justify their own less than admirable conduct by further stating in their reply brief, "[d]enial by the extended family of the horrendous allegations of sexual abuse occurring in the home is not uncommon.”
We also note that it is certainly possible that custody will be awarded to their natural father.
While ordinarily no appeal as of right lies from this nondispositional order (Family Ct Act § 1112 [b]; Matter of Costa v Costa, 34 AD2d 646 [2d Dept 1970]), we are addressing this intertwined issue in the interest of judicial economy because the parties moved below within two weeks for a clarification and reargument of the sua sponte ex parte order, which led to the preclusion order herein appealed from, to which the parties, in unison, object.