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Petitioner Files For Custody of Infant


The petitioner Spouses filed a custody petition for a baby on April 26, 2004. Named as respondents are the unidentified birth parents, and the Children’s Services. The latter has had temporary custody of the baby since March 1st when a neglect petition was filed against the parents, alleging that the baby, then about two days old, had been found abandoned in a building hallway on February 24, 2004, and that neither parent had come forward to claim the rights and responsibilities of parenthood.

This court held a fact-finding hearing on April 28 and found that the unidentified parents neglected and abandoned the baby, as defined in Family Court Act § 1012. The court learned on the same day that the spouses had petitioned for custody. Based on a favorable report indicating that the spouses, both of whom are New York Police Department (NYPD) sergeants, have a safe home, and have raised their own children satisfactorily, the court granted them temporary visitation and adjourned the dispositional hearing in order to receive additional information regarding the baby’s foster home and the petitioner’s visitation.

Shortly thereafter, the children services moved to dismiss the custody petition, arguing that they lacked standing to seek custody of the baby, to whom they are not related and who has never lived with them. The Children Services also sought to vacate the order permitting the spouses to visit.

The court has now reviewed the current case law, the affidavit filed by the wife, and the affirmations filed by counsel for ACS, for the Smiths, and the Law Guardian, and concludes, for the reasons stated below, that the Smiths do not have standing either to file for custody or to intervene at the dispositional phase of the neglect proceeding.

A New York City Family Lawyer said that a determination of a “legal stranger’s” standing to seek custody is based on extraordinary factual circumstances. Although the relevant statute, Family Court Act § 651, does not specify who has standing, it makes clear that a “stranger” has standing only if it is shown that the birth parent is unfit, or has abandoned the child, or that similarly “extraordinary” circumstances exist that permit the court to weigh custody in light of the child’s best interests. Such circumstances have included the custody petitioners’ assumption of physical custody after the death of the birth parent.

The spouses argue that the circumstances surrounding baby are equally compelling. The wife states in her petition that she was the sergeant “on the scene” when the infant was found on February 24th; that she accompanied the baby to the hospital that night and visited her daily until the baby’s release to the Children Services about a week later; and that she placed over 40 telephone calls to the children services and the agency supervising the foster home (the agency) in order to learn what steps were necessary for her and her husband to assume custody of the baby and to adopt her.

They are not “relatives” for whom the statute requires an “immediate investigation,” pursuant to section 1017 (1); nor are they adult siblings, grandparents, aunts or uncles who may intervene at a dispositional hearing after a finding of neglect; nor are they foster parents who have acquired a right to be heard by virtue of having cared for the baby. The Legislature has explicitly granted such persons specific rights, including the right to be heard. Family Court Act § 651 (b) is silent as to who may file a custody petition in the Family Court, so courts have looked to the common law for guidance.

It is important to note that the rights of the baby’s birth parents have not been terminated. They, like other neglectful parents whose children are placed in “temporary” foster care, have statutory, indeed, constitutional, rights to receive information about their child and services to assist them to overcome their past deficiencies and regain custody.

Although unusual, the circumstances of the baby’s birth are not unique. In recent years, the number of infants left in bathrooms, hallways and garbage cans has prompted New York City to create a program that allows parents to leave babies in “safe places,” such as police precincts and fire departments, with “no questions asked.” Babies left at such sites-or, like the baby, in hallways-are placed in the care of ACS, which has the legal responsibility and the resources to plan for the baby’s future.

Although the court is sympathetic to the Smiths’ credible claim that the Children Services and the agency were unresponsive to their many calls, the fact remains that the baby needed a foster home immediately, and the spouses had never before applied for such certification. The spouses’ qualifications to adopt Baby Doe may be superior to those of the foster parents, who are described as “pre-adoptive.” The publicity surrounding adoptions of infants by wealthy celebrities suggests that there are more than a few homes that might be available to babies such as the baby. But it is impractical to suggest that whenever the child services assumes custody of a foundling it should invite “any persons with exemplary qualifications” to submit applications to adopt the child. Persons interested in becoming foster parents or adoptive parents have the opportunity to do so. It appears the Smiths did not have such a desire until “that fateful day when the baby was found.

“Fate” or luck should not be the factor elevating a legal stranger’s status to one with standing to pursue adoption of an abandoned, dependent child. Although an extraordinary event may appear to an individual as “fate,” it is not a concept generally recognized in law. For example, when a mix-up of embryos implanted by a fertility clinic in the “wrong” mothers resulted in two women giving birth to babies that were not their own, one set of parents sought ongoing visitation between themselves, their own infant, and the baby that the mother had carried for nine months. Despite the obvious and sincere emotional bond felt by the couple, the appellate court ruled that the “happenstance of . . . nominal parenthood” was insufficient to create standing to such visitation.

This court is mindful of the strong feelings of the foster parents and the spouses, of the importance of foster parent training and supervision, and above all, of the need to minimize harm to the baby and give her the best opportunity to find a safe, permanent, loving home. One might argue that, in a close case, the preferable course is to afford the baby the widest range of options, in other words, to hold a full evidentiary hearing to determine whether the Smiths or the foster parents offer her the best home. Such a course, however, would undermine necessary restrictions on standing, has the potential to create administrative chaos for children services and its agencies, and, worst of all, would delay permanency for the baby. In reality, custody hearings in the New York City Family Court frequently take months to complete. Counsel zealously advocating for their clients would wish to make the most complete record, calling numerous witnesses and doubtless seeking forensic evidence regarding the four-month-old baby’s level of attachment to her foster parents. To schedule such a hearing, accommodating trial calendars, attorneys and expert witnesses, would leave Baby Doe’s future in doubt for months.

For the reasons cited, this court believes the correct decision is to grant the motion to dismiss the Smiths’ custody petition, to conclude the dispositional hearing in the neglect case, and to order the foster care agency to file a petition to terminate parental rights as soon as a cause of action ripens.

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