New York Family Law Blog
In a neglect proceeding pursuant to Family Court Act. Article 10, the maternal grandmother appeals from an order of the Family Court, Kings County, dated April 7, 2009, which suspended her visitation with the subject child and directed the Administration for Children’s Services to instruct the subject child’s school not to provide any information to her or allow her access to the subject child. Assigned counsel has submitted a brief in accordance with one case decided by the court, in which he moves to be relieved of his assignment to prosecute this appeal.
In child protective proceedings, counsel said the Commissioner has the burden of establishing abuse and neglect by a preponderance of the evidence. The statute provides that “proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect”. Upon proof to establish a prima facie case, the respondent must offer a satisfactory explanation to rebut the evidence of neglect. In rendering its decision, the court must set forth the specific grounds for its finding that the child had been abused or neglected.
Counsel said an order as suspended visitation between the maternal grandmother and the subject child must be dismissed as academic because that portion of the order has been superseded by a permanency hearing order dated June 11, 2009, awarding the maternal grandmother visitation with the subject child in accordance with the permanency plan.
We have reviewed the record and agree with the maternal grandmother’s assigned counsel that there are no frivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted.
A Kings County Child Visitation Lawyer said that, in another case, in a proceeding pursuant to Social Services Law ยง 384-b to terminate the mother’s parental rights by reason of her mental illness, the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County, dated March 27, 2009, as, upon terminating her parental rights, in effect, denied her application for visitation with the subject child.
The court ordered that the order of fact-finding and deposition is reversed insofar as appealed from, on the law, without costs or disbursements, and the issue of whether it is in the subject child’s best interests for the Family Court to direct visitation between the mother and the subject child after the termination of the mother’s parental rights shall be determined after a hearing, which hearing and determination shall be made by the court in which an adoption petition is pending or, if no such petition is pending, the hearing and determination shall be made by the Family Court.
After terminating the mother’s parental rights, the Family Court should have provided for the determination, after a hearing, of the issue of whether it is in the subject child’s best interests for the Family Court to direct visitation between the mother and the subject child, as requested by the mother. Although “there is no statutory authorization for a court to order continued visitation with the parents once their rights are terminated”, courts have the inherent authority to provide for visitation between an adopted child and a member of his or her birth family where such visitation is in the best interest of the child and does not unduly interfere with the adoptive relationship.
The court ordered in the first case that the appeal from so much of the order as suspended visitation between the maternal grandmother and the subject child is dismissed as academic; and it is further, ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
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