Opinion
02-07-2017
In re DIANE T., Petitioner–Appellant, v. SHAWN N., et al., Respondents–Respondents.
Larry S. Bachner, Jamaica, for appellant. John R. Eyerman, New York, for respondents. Carol L. Kahn, New York, attorney for the child.
Larry S. Bachner, Jamaica, for appellant.
John R. Eyerman, New York, for respondents.
Carol L. Kahn, New York, attorney for the child.
FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, KAHN, JJ.
Order, Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about March 4, 2016, which dismissed the petition for custody of the subject child, unanimously affirmed, without costs.
Petitioner, the subject child's grandmother, contends that she has standing to seek custody and/or visitation pursuant to Domestic Relations Law (DRL) § 72(1) (which addresses grandparents' standing to seek visitation). However, she failed to demonstrate "that conditions exist which equity would see fit to intervene" [sic] (id. ; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182–183, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991] ). Petitioner visited the child so infrequently that she was unable to demonstrate an existing relationship with him.
We note that the record demonstrates no "extraordinary circumstances" pursuant to DRL § 72(2) (which addresses grandparents' standing to seek custody).
In any event, petitioner failed to show that awarding her custody would be in the child's best interests (see Eschbach v. Eschbach, 56 N.Y.2d 167, 170–171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Antoinette McK. v. Administration for Children's Servs.-NYY, 107 A.D.3d 493, 966 N.Y.S.2d 667 [1st Dept.2013], lv. denied 22 N.Y.3d 851, 2013 WL 5567970 [2013] ). In addition to the absence of a meaningful relationship between petitioner and the child (see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004] ), the child was well bonded, loved, and cared for in the foster home, the only home he has ever known.
Contrary to petitioner's argument, kinship relatives of parents whose rights have been terminated do not have and are not afforded any greater standing or interest with respect to custody of the child than the child's foster parents (see Social Services Law § 383[3] ). Moreover, on this record, respondent agency, which had custody and guardianship of the child, supported the child's foster parents as his adoptive resource and would not consent to adoption by petitioner (see Matter of Yary [Carol W.], 100 A.D.3d 200, 952 N.Y.S.2d 514 [1st Dept.2012], lv. denied 20 N.Y.3d 1006, 959 N.Y.S.2d 689, 983 N.E.2d 767 [2013] ).
Petitioner failed to establish the requisite extraordinary circumstances to support her claim that her trial counsel and the attorney for the child rendered ineffective assistance of counsel (see Salvatore v. Salvatore, 68 A.D.3d 966, 893 N.Y.S.2d 63 [2d Dept.2009] ). Notably, during the proceedings, the then two-year-old child was unable to articulate or exercise his own judgment. Thus, the attorney for the child properly substituted her judgment for her client's in advocating for his best interests (see e.g. Matter of Alfredo J.T. v. Jodi D., 120 A.D.3d 1138, 992 N.Y.S.2d 431 [1st Dept.2014] ).