106 Misc. 2d 1044 | N.Y.C. Fam. Ct. | 1980
opinion of the court
After custody and guardianship of a child has been awarded to an authorized agency in an abandonment proceeding pursuant to section 384-b (subd 4, par [b]) of the Social Services Law, a court should not exercise its jurisdiction over a petition filed by a private person which seeks mere custody of that child. To exercise jurisdiction would circumvent the clear public policy of this State, which is, that a permanent home should be found for every child who has been determined to be abandoned and the child’s custody and guardianship awarded to the commissioner.
I. FACTS
Now before the court is a petition filed by the maternal grandmother of two children, Danielle and Jermaine Antonio Quarles, which seeks their custody. Prior to this proceeding the two children were found by the court to be
The subject children have a long history before this court.
Jermaine Antonio came into the care and custody of the commissioner on February 7,1978, shortly after birth. This child was found to be neglected also. The basis of the adjudication of neglect was Danielle’s previous adjudication of neglect and an adjudication of abuse of another sibling, Ondalee, who is not involved in the present custody proceeding.
In its finding of fact in the abandonment proceeding
II. LAW
A. Standing
Both parties to this proceeding frame their argument in terms of the grandmother’s standing or lack of standing to bring a custody petition.
B. The Role of the State in Abandonment Proceedings
The right of a natural parent to bring up a child without interference from the State has long been recognized as a fundamental liberty interest. (Pierce v Society of Sisters, 268 US 510, 534-535; Meyer v Nebraska, 262 US 390,399.) Only when a natural parent abandons a child, neglects a child, is proven to be unfit, or gives specific consent to such action may the State intervene and terminate the parents’ right to the custody and guardianship of the child. (Matter of Sanjivini K., 47 NY2d 374, 382; see Matter of Leon RR, 48 NY2d 117,124.) In short, it is only when the parent through some act or omission evokes the concern of the State for the welfare of the child that the State may exercise its power of parens patriae and intervene in the legal relation between parent and child.
In a permanent neglect proceeding, it is the clear intent of the State, speaking through the Legislature, to “free” for adoption a child whose natural parents are unable to provide nurture, sustenance, and care, so that the child may find a permanent home and escape the uncertainty of perpetual foster care. (Family Ct Act, art 6; Social Services Law, § 384-b, subd 1, par [a], cl [i].)
C. Analogy to Bankruptcy Proceedings
There is an analogy to be made between abandonment proceedings and bankruptcy proceedings. There is so because the statutory duties of the Commissioner of Social
A trustee in bankruptcy is an officer of the Bankruptcy Court, vested with title to certain properties with a duty to perform tasks that are necessary to achieve the objectives of the Bankruptcy Law. (11A Collier, Bankruptcy, § 7.001 [14th ed].) Here the Commissioner of Social Services is the guardian of the abandoned child only so that he may carry out the statutory objectives of the Legislature — to find a permanent home for a child whose parents are unable to or do not wish to fulfill their parental obligations. (Social Services Law, § 384-b.) Just as a bankruptcy proceeding is commenced only upon the voluntary or involuntary act of the bankrupt person (US Code, tit 11, ch 3, subch 1), so also an abandonment proceeding is commenced only when the parent of a child engages in an act or omission that triggers the concern of the State as parens patriae for the child’s welfare. (Matter of Sanjivini K., supra.) When such an event occurs and abandonment is found, the relationship between the parent and child has broken down — it is ruined. (See Black’s Law Dictionary [4th ed], Bankrupt.) Thus, just as the breakdown of the financial condition of a debtor initiates the need for the State in the form of the court to intervene and appoint a trustee to hold the debtor’s assets for his creditors (US Code, tit 11, ch 3, subch 2), where the child and parents’ relationship irreparably breaks down, the State in the form of the abandonment proceeding intervenes, and the subsequent order of the court awarding custody and guardianship of the child to the Commissioner of Social Services is so that the commissioner can legally
A trustee in bankruptcy is bonded so that should there be a breach of the trustee’s duties, the debtor’s creditors would not suffer harm. (11A Collier, Bankruptcy, §7.006 [14th ed].) Then too, a trustee may invest the moneys he is administering only in specially insured banks without posting a special bond. (US Code, tit 11, § 345.) Reasoning by analogy, the commissioner since he is a public official charged with insuring the welfare of the child (Social Services Law, § 384-b) (and not a trustee of real and personal property) does not need to post a bond, since his duty is clear — it is to carry out his statutory obligation to see that a permanent home is found for the child in his care. To not do so would be to abrogate his duties and place him in a situation similar to that in which a trustee in bankruptcy breaches his trust. (See American Sur. Co. of N. Y. v First Nat. Bank, 141 F2d 411, cert den 322 US 754.) A breach of trust is defined as “a violation by the trustee of any duty which as trustee he owes to the beneficiary.” (Restatement, Trusts 2d, § 201.) Here, the commissioner owes a duty to the abandoned child to acquire a permanent home for the child.
Were this not so, abandoned children would always be subject to the well intended, but often misguided efforts of those persons with a concern for the child, but with either an inability or a lack of desire to provide the child with a permanent home. The child, therefore, would be transferred from the uncertainties of perpetual foster care to the uncertainties of continually changing custody determinations. Such a Hobson’s choice is not to be construed from the statutory design of the legislation designed to deal with homeless children.
D. Adoption as the Proper Procedure
By adhering to the statutory scheme, adoption clearly is the proper procedure for anyone to follow who has an interest in seeking custody of a child whose custody and
E. The Commissioner’s Consent
The court recognizes that should the grandparent here, or any other stranger, seek to adopt the child, the consent of the commissioner will be required. (Domestic Relations Law, § 111, subd 1, par [d].) Since adoption was unknown at the common law, it is purely a statutory proceeding. (51 ALR2d 498.) Thus, a person seeking to adopt a child whose guardianship and custody has been awarded to the commissioner or other authorized agency has no other course but to follow the statutory requirements and obtain the consent of the authorized agency if they are to adopt a child. There are circumstances in which an adoption may be carried out without the consent of a parent. (Domestic Relations Law, § 111, subd 2.) There is no equivalent provision, however, to circumvent the necessity of obtaining consent to an adoption by an authorized agency. Should an action seeking adoption of children whose guardianship and custody has been awarded to the commissioner be commenced and the commissioner withhold his consent, it would appear that the petitioner in such an adoption proceeding would have the right to commence a proceeding pursuant to CPLR article 78 and to have a court determine whether the commissioner has an appropriate basis for withholding such consent.
F. Dismissal
For the reasons discussed in this opinion, the court herewith dismisses the grandmother’s petition for custody. To allow the petitioner to proceed would be to defeat the public policy of New York.
G. Visitation
This decision in no way effects the right of the grandmother to seek visitation with her grandchildren. This is so either while the children are with the Commissioner of
. See Family Court, State of New Y ark, County of Onondaga, Docket Nos. N-251-76, N-42-78,B-41-79, B-42-79.
. Family Court, State of New York, County of Onondaga, Docket No. N-251-76.
. Family Court, State of New York, County of Onondaga, Docket No. N-42-78.
. Family Court, State of New York, County of Onondaga, Docket Nos. B-41-79 and B-42-79.
. Family Court, State of New York, County of Onondaga, Docket Nos. B-41-79 and B-42-79.
. Unlike many other articles of the Family Court Act (§§ 422,522,733,822), article 6 is silent as to who may initiate a custody proceeding. Family Courts have found, however, that grandmothers do have standing to bring custody proceedings. (See, e.g., Matter of Tamara I., 91 Misc 2d 995 [Family Ct, Kings County, 1977]; Matter of Johnstone v Shuart, 91 Misc 2d 272 [Family Ct, Rockland County, 1977].)
While in some cultures, such as the Navajo, for instance, “custody traditionally lies with grandparents as well as parents” (Leighton and Leighton, The Navajo Door, 1944, as cited in Navajo Grandparents — “Parent” or “Stranger” — A Child Custody Determination, 9 New Mexico L Rev 187, 190), New York Statutes specifically grant custody rights only to the parents of children. (Domestic Relations Law, § 240.) Grandparents in New York merely have a statutory privilege to seek visitation. (Domestic Relations Law, § 72; Lo Presti v Lo Presti, 40 NY2d 522; Foster and Freed, Grandparent Visitation: Vagaries and Vicissitudes, 23 St. Louis ULJ 643.) Thus, a grandparent seeking custody has no greater right to assert than does any other “stranger” who has taken an interest in a child. (Cf. People ex rel. Kropp v Shepsky, 305 NY 465.)
“It is the intent of the Legislature in enacting this section to provide procedures not only assuring that the rights of the natural parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption.” (Social Services Law, § 384-b, subd 1, par [b].)