New York Family Law Blog
A New York Family Lawyer said that, on July 11, 1984, the subject child born June 1, 1984, was removed from the care of her parents, and placed in foster care by the Nassau County Department of Social Services, pursuant to Family Court Act § 1024. On July 12, 1984, the Department of Social Services filed a neglect petition under docket N-250-84, alleging that Cassandra is a neglected child as defined by § 1012 of the Family Court Act, in that: On or about July 10, 1984, respondent-father beat said child’s half sibling, to a degree that it caused said half sibling death on July 11, 1984. Respondent-father beat said half sibling with such force and effect to cause said half sibling to hemorrhage into his abdomen which was a result of lacerations of the mesentery, with a rupture of the small bowel. In addition, said half sibling had multiple rib fractures on both sides. Respondent-mother was present while said half sibling was being beaten and failed to take any steps whatsoever to prevent it from happening or continuing. It is most likely that said child will be treated in a similar manner.
A New York Child Custody Lawyer said that, by order of this Court, dated July 18, 1984, temporary physical custody of the subject child was placed in the Department of Social Services. By amended temporary order of October 26, 1984, temporary physical custody was continued in the Department of Social Services, with visitation for the parents to be arranged by the Department. On March 28, 1985, the Court ordered the Department of Social Services to arrange visitation for the respondents with Cassandra for one hour each week in the Nassau County Correctional Center. There was a final disposition of the neglect petition. On that date the Court, on consent, adjudged the subject child to be an abused child within the meaning of Article 10 of the Family Court Act, based on the conviction of Eleanor C of Criminally Negligent Homicide in the County Court and ordered that she be placed in the full custody of the Nassau County Department of Social Services for a period of eighteen months, with visitation to the mother arranged by the Department at the Nassau County Correction Center or any other place of confinement. The order further provided that the mother may make application for full custody of the subject child upon her release. On March 18, 1986, there was a final disposition of the neglect petition. The respondent-father waived a dispositional hearing and shared custody of the subject child was placed in the Department of Social Services for a period of eighteen months.
A Westchester County Family Lawyer said that, shortly after the emergency removal and the commencement of the above-mentioned neglect proceeding, the subject child’s paternal grandmother, filed a petition, and dated July 27, 1984, seeking full custody of the subject child. The petitioner testified on her own behalf and called a psychiatrist, and Senior Consulting Psychiatrist, Nassau County Department of Mental Health, as witnesses. A home study of the family, conducted by the Department of Social Services of New Brunswick, Canada, was received in evidence as Petitioner’s Exhibit I. The mental health evaluation made by the psychiatrist pursuant to the stipulation executed by the parties and their respective attorneys was received in evidence as Petitioner’s Exhibit II and a report of interviews with the family conducted by him was placed in evidence as Petitioner’s Exhibit III.
A Westchester Custody Lawyer said that, at the conclusion of the testimony, counsel for respondent-father indicated that his client supported the Petitioner’s application for custody of the subject child. Counsel for opposed the petition in her client’s behalf. The Deputy County Attorney called no witnesses on behalf of the Department of Social Services. Neither parent called any witnesses or testified. The brief updated social summary prepared by the Nassau County Department of Social Services, dated May 19, 1986, states that Cassandra was placed in foster care when she was one month old and has remained in the same foster home to date. She is a healthy, bright, adorable child, who is doing “exceptionally well in the foster home where she is receiving an abundance of good care and love”. The report also indicates that the mother was released from Bedford Hills Correctional Facility in May, 1986 and that visitation between the parents was scheduled to commence on May 21, 1986.
The issue in this case is whether the court erred in removing the full custody of the subject child from her parents.
After consideration and review of the testimony, the documentation received in evidence, the disposition under docket N-250-84, and all prior proceedings held herein, the Court makes the following findings of fact and conclusions of law: The standard applied in proceedings to determine custody as between two parents is the “best interests of the child”. However, when a non-parent seeks custody as against a parent, as in the case herein where the petitioner-paternal grandmother seeks custody as against the respondent-mother, the non-parent must establish the existence of extraordinary circumstances before the Court can reach the issue of the child’s best interests.
In this proceeding, where there has been an adjudication against both parents that the subject child is a neglected child and full custody has been placed in the Department of Social Services for a period of eighteen months, it is clear that extraordinary circumstances exist in that the Court has determined that for the duration of the dispositional order made in the neglect proceeding the parents would not be fit to care for their child. Extraordinary circumstances having been established by the adjudication in the neglect proceeding, the Court must determine custody between the petitioner-grandmother and the respondent-mother by assessing Cassandra’s best interests. The Court must, further, determine the appropriate standard to be applied in a custody proceeding between a non-parent and an authorized agency to which custody of a child has been entrusted for a limited period of time pursuant to adjudication that the child is neglected. The law is clear in that once custody and guardianship of a child has been placed in an authorized agency and the child freed for adoption by virtue of permanent surrender or termination of parental rights the Court may not exercise jurisdiction of a custody petition by a non-parent, in that adoption has become the exclusive procedure by which to obtain custody of the child. This Court, however, has been unable to uncover a single reported case which addresses the issue of the standard to be applied by the Court when a non-parent seeks custody of a child who has not been freed for adoption, but has been placed in the custody of an authorized agency for a limited period of time due to parental neglect. The Court finds that the appropriate standard to be applied in a custody proceeding between the grandmother-petitioner herein and the Nassau County Department of Social Services, respondent, an authorized agency in which custody of the child has been placed for eighteen months pursuant to a neglect adjudication is in the best interests of the child. The Court further finds that there is a rebuttable presumption that the child’s best interests lie in continuing custody in the authorized agency.
The goal is to assist the parent to correct the conditions that led to the removal, so that the family can be reunited. The law is very clear that parental rights may not be permanently terminated unless the appropriate authorized agency has made diligent efforts to reunite the parent and child.
Based upon the legislative determination that a neglected child’s best interests lie in being reunited with his parent and the legislative mandate that the agency entrusted with the child’s care make diligent efforts toward that end, the Court finds that there is a presumption that a neglected child’s best interests are served by continuing custody in the agency, rather than in transferring custody to a grandparent or other person. The presumption in favor of continuing residential custody in an authorized agency is rebuttable upon a showing that rehabilitative efforts by the agency would not be in the child’s best interests. Only upon such a showing should a court consider transferring residential custody of a neglected child from an authorized agency and thereby absolve the agency of its statutory obligation to provide the child and the parent with rehabilitative and support services.
In the instant proceeding, there has been no such showing. Eleanor C was only recently released from confinement and the Nassau County Department of Social Services has only just begun to discharge its statutory duty to assist her in planning for the return of her child. Supervised visitation has been scheduled. There has been no proof herein that further efforts by the Department of Social Services pursuant to Social Services Law § 384-b would not be in the subject child’s best interests. Further, a transfer of custody to the petitioner would not only deprive Eleanor C and Cassandra C of the benefits of statutorily mandated rehabilitative services, but would, in effect, be a de facto “permanent termination” of the parental rights. The petitioner resides seventeen hours away from Nassau County by car and an award of custody to the petitioner would preclude the mother’s right to exercise meaningful, on-going visitation and to maintain a relationship with the subject child.
Visitation is a right shared jointly by a child and a non-custodial parent. The mother has vigorously pursued visitation rights. During the pendency of the neglect and custody proceeding, the Department of Social Services was directed to afford her weekly visitation with the subject child. The final order of disposition in the neglect proceeding directs the Department of Social Services to arrange visitation between her and during the mother’s incarceration. Upon the mother’s release from confinement, supervised visitation was scheduled. The Court finds that visitation between the subject child and her mother, under conditions to be determined by the Department of Social Services, is in the subject child’s best interests and is vital toward achieving the statutorily mandated goal of safely reuniting mother and child. Award of custody to the paternal grandmother herein, who resides at a location so distant as to foreclose any meaningful visitation, would not be in her best interests.
Further, upon review of the conflicting expert testimony, the Court finds that the petitioner failed to establish that she would be a fit custodian for the subject child. While the Department of Social Services in New Brunswick, Canada, made an extremely positive evaluation of petitioner and her ability to care for her, this assessment was made without knowledge of the history of physically abusive behavior by petitioner against her own son, her father. Although the doctor’s advised the Court that he saw no psychiatric reason why custody should not be awarded to the petitioner, his opinion was based on interviews with the petitioner and members of her family. He made no psychiatric diagnosis.
Accordingly, the court held that the petitioner’s petition seeking custody of the subject child is dismissed.
If a child is a victim of neglect and abuse, seek the help of a Nassau Child Custody Attorney and Nassau Order of Protection Attorney at Stephen Bilkis and Associates.