187 Misc. 2d 127 | N.Y.C. Fam. Ct. | 2001
The question to be decided in this case is whether Harriet Webster, the nearly life-long foster mother of Alex Ryan, Jr. (June 2, 1995), has standing to make a claim for visitation rights against Alex’s biological father. The court finds that she does not.
Alex, Jr. was born with a positive toxicology for cocaine. As a result of this, he was removed from his mother’s custody shortly after birth. Her parental rights were eventually terminated upon a finding of abandonment. The father’s parental rights were terminated in 1999, based on permanent neglect. The Appellate Division reversed the termination decision (Matter of Alex LL. v Albany County Dept. of Social Servs., 270 AD2d 523). The Court, in finding that the record contained ample evidence that the father should not have had his parental rights terminated, held that the father’s attempts to establish a relationship with his son were short circuited by an unresponsive Department of Social Services (DSS) and a dismissive Family Court. Going even further, the Court found that the evidence supported a finding that the father should have been given custody of his son. Because of the extended period of time between the hearing and the appellate court’s decision, the Appellate Division remanded the case to Family Court for an expedited hearing on parental fitness.
The foster mother next claims that Social Services Law § 383 (3) gives her the right to intervene in these proceedings. Social Services Law § 383 (3) provides as follows:
“Foster parents having had continuous care of a child, for more than twelve months, through an authorized agency, shall be permitted as a matter of right, as an interested party to intervene in any proceeding involving the custody of the child. Such intervention may be made anonymously or in the true name of said foster parents.” (Emphasis added.)
One must first ask if this fitness hearing involves the type of custody proceeding intended by this law. Also, if it does permit intervention in this type of case, what steps, if any, must the court take to facilitate the exercise of this right? Is the giving of notice of the proceedings sufficient or must the court arraign
More importantly, and irrespective of the timeliness issue, the court finds that this fitness proceeding is not encompassed within the meaning of the custody proceeding covered by Social Services Law § 383 (3). Admittedly, the context of this statute is of little help in determining its exact meaning, floating as it does in the middle of a section which covers a broad area of children in DSS placement or awaiting adoption. For example, a literal reading of the statute would permit a foster parent to intervene in a custody proceeding between two parents long after a child has been returned to one or both of the parent’s custody, so long as the foster parent had custody of the child for some continuous 12-month period at some point in time. The courts have held that, in such a case, the foster parent is really a former foster parent and does not come within the meaning of the statute. This is obviously a correct result but not because statutory construction supports it. The Legislature, in using the construction “having had continuous care” as opposed to just “having continuous care,” leaves the statute open to such a tortured and clearly unintended interpretation.
The Legislature of the State of New York has given the courts a nearly bare canvass upon which to sketch the law of child custody and visitation. For example, article 6, title 1 of the Social Services Law, “Care and Protection of Children,” provides in section 371 (11) that “ ‘Custody’ ” means custody in pursuance of or in compliance with expressed provisions of law. In article 7 of the Domestic Relations Law, governing adoptions, section 109 (6) provides that “ ‘Lawful custody’ shall mean a custody (a) specifically authorized by statute or (b) pursuant to judgment, decree or order of a court or (c) otherwise authorized by law.” Domestic Relations Law article 5-A, the Uniform Child Custody Jurisdiction Act, provides in section 75-c (2) that a “ ‘Custody determination’ means a court decision and court orders and instructions providing for the temporary or permanent custody of a child, including visitation rights.” Domestic Relations Law § 240 (1) (a) provides that in marital actions or custodial proceedings the court “shall enter orders for custody and support as, in the court’s discretion, justice requires, having regard to the circumstances of the case and
Based on Bennett v Jeffreys (supra) and its progeny, it is clear that the foster mother has no statutory or common-law right to visitation with a former foster child and her petition must be denied on these grounds.
. The court does find that the child may have an independent and constitutionally protected liberty interest in maintaining, under certain well-defined and narrow circumstances, long-established emotionally nurturing relationships. If this was established, the child would have standing, independent of his parent, to assert a claim to continued contact with his foster mother. However, because the record does not establish, at this point, the Law Guardian’s position on continued contact between the foster mother and the child, the court is reserving on this issue to allow the Law Guardian to take such a position.
. Putting this case into the correct legal framework to permit the proper legal analysis is a difficult task. The Appellate Division remanded this case for a parental fitness hearing without specifying what form this hearing was to take. For example, when the child was in DSS custody, the father filed a Family Court Act article 6 custody petition. The Appellate Division, in noting this, slipped into a Bennett v Jeffreys analysis (Matter of Bennett v Jeffreys, 40 NY2d 543). The court does not believe this is the correct approach. First, a parent seeking custody of a child in DSS custody should file a petition under Family Court Act § 1062 to terminate placement. It is common for Family Courts to allow the filing of an article 6 custody petition in an article 10 placement context, but this is done more for clerical expediency than procedural exactness. After all, article 6 proceedings are meant to determine
The court could liken this present proceeding to a foster care review under Social Services Law § 392 (6) and apply a Michael B. modified best interest test. (Matter of Michael B., 80 NY2d 299.) But such a test involves the weighing of continued placement with the then fitness of a judicially determined neglectful placement. (True, it could also involve a parent who had voluntarily placed his or her child.) Or, the court could turn to Social Services Law § 383 (1) which requires the court to make a determination that “the interest of such child will be promoted” by the return to his parent and that the parent “is fit, competent and able to duly maintain, support and educate such child.” As one can see, the best interest standard can be formulated in many ways and arise in many contexts. The court can leave this dilemma to another day. Based on the findings made by the Appellate Division, the extensive record available to the court and the consent of DSS and the Law Guardian, a return of custody to the father was warranted based on any formulation of the best interest test and without the need to conduct a further evidentiary hearing.
. The language in question was added to the Social Services Law in 1972. (L 1972, ch 645.) In a memorandum for the Governor, Attorney General Lefkowitz stated as follows: “Foster parents, by the very nature of their agreement with the placing agency, have only temporary custody of a child and have no personal legal interest which they may advance or which needs protection. The bill does not give the foster parents the right to seek permanent or adoptive custody of a child in such a proceeding, but only the undefined right of intervention.” (May 10, 1972, Bill Jacket, L 1972, ch 645 [emphasis added].)
. Which “best interest” standard a court is to use in the varied and multi-faceted fact situations presented to it is not free from doubt. In short, the Court of Appeals has held that there is a best interest standard and then there is a best interest standard. First there is the “pure” best interest standard that must be applied in a custody dispute between two parents or in a Bennett v Jeffreys situation. Then there is the modified best interest as described by the Court of Appeals in Matter of Michael B. (80 NY2d 299, supra). Michael B. involved a foster care review after a voluntary placement under Social Services Law § 392. The Court held that the best interest test in that context did not involve a measuring of the biological parent against the foster parent. Rather, the court must weigh the past and future foster care placement of the child against discharge of the child to the biological parent. In short, best interest in this situation becomes a determination of parental fitness, even though harm to the child based on a dislocation from a long-bonded relationship with a foster parent must also be considered. It should be noted that by the time the Court of Appeals remitted this case back to Family Court for yet another hearing, the child in question had been in foster care for over seven years. His case had been heard twice in Family Court, twice by the Appellate Division and once by the Court of Appeals.
. In Ronald, FF. (supra), the father had a four-year relationship with the mother. He attended the mother’s childbirth courses, was present at the birth of the child and was listed on the birth certificate as the child’s father. After the parties separated, the mother initiated support proceedings against the “father.” It was not until the mother planned to move to Texas that the issue of paternity was raised in a Family Court proceeding brought by the “father” to prevent the move. It is not clear why the issue of estoppel was not raised and determined before blood grouping tests were done. The appellate courts have instructed us very clearly that estoppel issues must be determined prior to ordering genetic marker tests. (Mancinelli v Mancinelli, 203 AD2d 634.) The Court of Appeals in Ronald FF. is silent on the estoppel issue. It is also hard to reconcile the Appellate Division’s decision in Matter of Lorie F. v Raymond F. (239 AD2d 659) with the Court of Appeals’ decision in Ronald FF. The Court of Appeals held that the Bennett v Jeffreys standard
. It is interesting to note that this statute, concerning the denial of custody or visitation to a murderer, refers to any “person” who falls into this category while the rest of the statute refers to parents. This would obviously be a reference to Domestic Relations Law §§71 and 72, where visitation can be granted to nonparents such as siblings and grandparents. It is also noteworthy that the sibling visitation section does not give standing to stepsiblings but the proscriptions of Domestic Relations Law § 240 (1-c) (a) extend to the murder of a stepsibling.