Opinion
14161 Docket No. B-7372/18 V-19756/18 Case No. 2020-01217
07-06-2021
In the MATTER OF ALEXANDER H, a Child Under the Age of Eighteen Years, etc., Ana M., Petitioner–Appellant, v. Sheltering Arms Children and Family Services, Respondent–Respondent, Renzo H., Respondent.
Bruce A. Young, Brooklyn, for appellant. Sheltering Arms Children & Family Services, New York (Dawn A. Shammas of counsel), for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
Bruce A. Young, Brooklyn, for appellant.
Sheltering Arms Children & Family Services, New York (Dawn A. Shammas of counsel), for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Riti P. Singh of counsel), attorney for the child.
Acosta, P.J., Kapnick, Moulton, Scarpulla, JJ.
Order, Family Court, New York County (Patria Frias–Colon, J.), entered on or about January 3, 2020, which, to the extent appealed from as limited by the briefs, after a hearing, denied with prejudice the petition by the paternal grandmother for custody of the subject child and granted petitioner visitation with the child subject to the discretion of the child's foster parent, unanimously affirmed, without costs.
Petitioner argues that she should be awarded custody of the subject child because siblings should be kept together. However, the child has never lived with his siblings (or with her). He has lived with the same foster parent for his entire life and has developed a close emotional bond with the foster parent, who has attentively and consistently nurtured and cared for him. Awarding custody to petitioner would mean uprooting the child from the only home he has ever known and would not be in his best interests ( Matter of Karin R. [Delinda R.], 146 A.D.3d 526, 527–528, 47 N.Y.S.3d 1 [1st Dept. 2017], lv denied 29 N.Y.3d 903, 2017 WL 1169723 [2017] ; Matter of Sandra N. v. Administration for Children's Servs., 103 A.D.3d 591, 962 N.Y.S.2d 75 [1st Dept. 2013], lv denied 21 N.Y.3d 857, 2013 WL 2395849 [2013] ; Matter of Karon J., 293 A.D.2d 404, 741 N.Y.S.2d 37 [1st Dept. 2002] ).
As the child's grandmother, petitioner does not have presumptively superior custody rights to those of the foster parent; to determine the best interests of the child, the court properly considered the totality of the circumstances ( see Social Services Law § 383[3] ; Matter of Peter L., 59 N.Y.2d 513, 466 N.Y.S.2d 251, 453 N.E.2d 480 [1983] ; Matter of Luz Maria V., 23 A.D.3d 192, 803 N.Y.S.2d 544 [1st Dept. 2005], lv denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006] ; Matter of Alma R. v. Ruth M., 237 A.D.2d 127, 654 N.Y.S.2d 748 [1st Dept. 1997], lv dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 273, 686 N.E.2d 1368 [1997] ). Petitioner had been investigated for using corporal punishment on the child's siblings of whom she had custody, the siblings having already suffered horrific physical abuse at the hands of their parents, and she allowed their father (her son), one of their abusers, to be alone with them despite multiple written and oral court orders and directives prohibiting such unsupervised time. Petitioner had ceased all contact with the child for a period of time, and in her hearing testimony minimized the severe abuse and neglect the child's siblings had suffered at her son's hands. In contrast, the foster parent had proven to be a consistent source of support and love for the child since the child's infancy and had showed himself to be fully engaged in the child's schooling, medical care, and emotional and intellectual development and committed to fostering an ongoing relationship between the child and his extended family.
We have considered petitioner's remaining arguments, most of which are expressed in conclusory terms, without record support, and find them unavailing.