CC, born on 1 June 1984, was removed from the care of her parents, A and B, on 11 July 1984 and placed in foster care by the Nassau County Department of Social Services pursuant to Family Court Act § 1024. On 12 July 1984, the Department of Social Services filed a neglect petition alleging that CC is a neglected child as defined by § 1012 of the Family Court Act.
A New York Family Lawyer said on or about 10 July 1984, A beat CC’s half sibling, DD, to a degree that it caused said half sibling death on July 11, 1984. A 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, DD had multiple rib fractures on both sides. B was present while DD was being beaten and failed to take any steps whatsoever to prevent it from happening or continuing. It is most likely that CC will be treated in a similar manner.
By order of this Court, dated 18 July 1984, temporary custody of CC was placed in the Department of Social Services. By amended temporary order of 26 October 1984, temporary custody was continued in the Department of Social Services, with visitation for the parents to be arranged by the Department.
A New York Child Custody Lawyer said on 28 March 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 re: B on 23 January 1986. On that date the Court, on consent, adjudged CC 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. It was ordered that CC be placed in the 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 B may make application for custody of CC upon her release.
A Westchester County Family Lawyer said on 18 March 1986, there was a final disposition of the neglect petition re: A. A withdrew his denial to the petition and the Court made an affirmative finding that CC was a neglected child, based upon A’s criminal conviction for Murder in the Second Degree and Manslaughter in the First Degree. A waived a dispositional hearing and custody of CC was placed in the Department of Social Services for a period of eighteen months.
AV, CC’s paternal grandmother, shortly after the emergency removal and the commencement of the above-mentioned neglect proceeding, filed a petition dated 27 July 1984 seeking custody of CC.
A Westchester Custody Lawyer said the parties, their respective counsel and the law guardian executed a stipulation consenting that the Court order an investigation by the Nassau County Probation Department into all of the pertinent facts and circumstances, including psychiatric and psychological examinations of any of the parties and or other persons with whom this matter may be concerned.
AV testified on her own behalf and called Dr. RP, a psychiatrist, and Dr. AR, Senior Consulting Psychiatrist, Nassau County Department of Mental Health, as witnesses. A home study of the V 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 Dr. Reichman 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 V family conducted by Dr. FM was placed in evidence as Petitioner’s Exhibit III.
AV testified that she resides with JV, her second husband, HV, their eight-year-old daughter and TC, her son, in New Brunswick, Canada. The Vs married in 1976 and in 1981 moved to a four-bedroom home on a farm in Canada, a seventeen hour car drive from Nassau County. Mr. V is retired from the New York City Sanitation Department and presently farms as a hobby. The petitioner stated that the Vs are in good health. Regarding A, AV advised the court of the history of her son’s difficulties which began when he was seven years old.
Dr. FM testified that he interviewed the AV, JV and HV and AV’s daughters, LV and MV. He told the court that, in his opinion, the petitioner would, without a doubt, be a good custodian for CC. CC’s best interests would be served if she were raised in a kinship home, as opposed to foster care.
Dr. AR testified that, in his opinion, custody of CC should not be granted to the petitioner. His recommendation was based on his psychiatric evaluation of JV and AV and his review of the Canadian social services report, as well as his review of the records of the Nassau County Division of Forensic Services regarding the C family. Dr. AR recognized that the Vs had been given an extremely positive evaluation by the Department of Social Services in Canada, but advised the Court that this evaluation did not take into account the fact of the C family past history.
Dr. AR’s written report indicates that the C family was known to Nassau County Protective Services as far back as 1966 and that the records repeatedly indicate severe physical abuse by AV. He reports that at age 12 A was severely abused. A indicated that his mother had beaten him with a wooden chair and burned him with matches. AV denied these abuses and pointed at A’s father.
Dr. AR diagnosed AV as having a Mixed Personality Disorder, with a combination of dependent, aggressive and immature features. He felt that, despite the positive Canadian social services report, the documentation of enormously pathological behavior that AV displayed toward her own child would make it unwise to tempt fate by allowing her to have custody of her grandchild.
However, A’s counsel, at the conclusion of the testimony indicated that A supported AV’s application for custody of CC. B’s counsel opposed the petition.
The court makes the following findings of fact and conclusions of law:
It was ruled in Friederwitzer v Friederwitzer, Eschbach v Eschbach and Krom v Comerford that 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 as held in Bennett v Jeffreys and Merritt v Way.
In this proceeding, where there has been an adjudication against both parents that CC is a neglected child and 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 CC’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 an adjudication that the child is neglected.
Matter of Peter L. and Smith v LaScaris made it clear that once custody and guardianship of a child has been placed in an authorized agency and the child is 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.
The Court finds that the appropriate standard to be applied in a custody proceeding between the grandmother-petitioner herein and the Nassau Department of Social Services, respondent, an authorized agency in which custody of CC 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 legislature of the State of New York has determined that it is generally in a child’s best interests to remain with or be returned to the natural parent because the child’s need for a normal family life will usually be met in the natural home. The State’s first obligation is to help the family with services to prevent its breakup or reunite it. Once a child is placed in the custody of the Department of Social Services pursuant to a neglect proceeding, the Department is obligated to make diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child by: consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family; making suitable arrangements for the parent to visit with the child; provision of services and other assistance to the parents, except incarcerated parents, so that problems preventing the discharge of the child from care may be resolved or ameliorated; and, informing the parents at appropriate intervals of the child’s progress, development and health.
The objective 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 as held in Matter of Sheila G. and Matter of Jamie M.
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 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 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 case at bar, there has been no such showing. B 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. 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 CC’s best interests. Further, a transfer of custody to the petitioner would not only deprive B and CC of the benefits of statutorily mandated rehabilitative services, but would, in effect, be de facto “permanent termination” of B’s parental rights.
It is to be noted that the petitioner resides seventeen hours away from Nassau County by car and an award of custody to the petitioner would preclude B’s right to exercise meaningful, on-going visitation and to maintain a relationship with CC.
Upon review of the conflicting expert testimony, the Court finds that the petitioner failed to establish that she would be a fit custodian for CC. While the Department of Social Services in New Brunswick, Canada, made an extremely positive evaluation of petitioner and her ability to care for the child, this assessment was made without knowledge of the history of physically abusive behavior by petitioner against her own son, CC’s father, A.
Although Dr. FM 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.
Dr. AR diagnosed AV as displaying a mixed personality disorder, with a combination of dependent, aggressive and immature features. He notes that she displayed little effect even when discussing the fact that her son was charged with second degree murder. Dr. AR advised the Court that the “enormously pathological behavior” displayed by AV toward A raised doubt as to her fitness to care for CC, despite the present picture of apparent domestic stability of her household.
Based on Dr. AR’s report, the court finds that the petitioner has not established that she would be a fit and proper custodian for CC and that CC’s best interests thus require continuation of custody in the Nassau County Department of Social Services.
Accordingly, AV’s petition seeking custody of CC is dismissed.
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