Opinion
B11.
Decided July 22, 2011.
Randall Carmel, Esq., for SN. N., Petitioner in custody proceeding.
R. Ellen Sigal, Esq., Attorney for Child E.N.
Shahabuddeen Ally, Esq., Attorney for Child B.G.
Arnold Rothbaum, Esq., for SK. N., mother of children.
John Eyerman, Esq., for Seaman's Society for children and Families, foster care agency for B.G.
Dwight Kennedy, Esq., for Little Flower Children and Family Services of New York, foster care agency for E.N.
Following a series of intertwined evidentiary hearings conducted jointly, the court sets forth on the record its findings of fact and conclusions of law. These hearings involve two of eight children of respondent mother SK. N. ("mother"). The subject children are B. G., born August 2, 2007, and E. N., born November 18, 2008. With respect to both subject children, the instant hearings combined the dispositional hearing of the termination of parental rights proceeding against respondent mother SK. N. and the custody petition of the maternal great-grandmother, SN. N. ("great-grandmother"). See Matter of Carolyn S. v. Tompkins Co. Dept. of Soc. Serv., 80 AD3d 1087, 1088, 915 N.Y.S.2d 719 (3rd Dept. 2011). The relevant portion of the family tree and the extensive legal proceedings involving all but the recently born child of SK. N. are set forth below for purposes of clarity. Many of these proceedings relate to the instant dispositional hearings, particularly insofar as they concern respondent mother. In addition, neglect findings by another Family Court Judge against the maternal great-grandmother concerning some of SK. N.'s children were reversed by the Appellate Division during the pendency of the proceedings underlying the instant termination of parental rights cases. The court will address in this decision/order the impact of the vacatur of the neglect findings against the great-grandmother. All eight of the mother's children, including the newborn, are either in foster care or in the custody of relatives.
All parties and the attorneys for the children, free to chart their own procedural course, agreed pretrial in the interests of judicial economy to utilize the less restrictive rules of evidence ( e.g., hearsay permitted), applicable to termination of parental rights dispositional hearings, in the related custody hearings as well.
PROCEDURAL HISTORY
Respondent mother SK. N. was born on July 7, 1985. She has suffered from long-term drug addiction, relationships involving domestic violence, and unresolved mental health issues. She is the mother, through several fathers, of at least eight children, with the following dates of birth: JS. N. (February 10, 2001); JM. N. (April 26, 2003); S. N. (January 3, 2005); JL. N. (January 3, 2005); M. N. (January 18, 2006); subject child B. G. (August 2, 2007); subject child E. N. (November 18, 2008); and an eighth child born during the pendency of these termination of parental rights proceedings. The mother apparently fled to Pennsylvania as a result of involvement with a man who allegedly engaged in very violent behavior toward her. The mother gave birth to the eighth child in Pennsylvania and that child was not subject to the jurisdiction of this court. Apparently, the child protective agency in Pennsylvania became involved and the child is no longer residing with the mother. All of the other children are apparently half-siblings of subject children E. N. and B. G.
Respondent mother and her family have been involved in highly dysfunctional parenting relationships with their children. SK. N.'s mother, A. N. ("grandmother"), apparently had several children, all of whom have had extensive relationships with the Administration for Children's Services ("ACS") in New York. The grandmother also suffered from long-term drug addiction and respondent mother herein and some of her siblings were raised, at least in part, by SN. N., the great-grandmother, who is now 60 years of age.
It is from the great-grandmother's home, where respondent mother SK. N. resided, that ACS removed SK. N.'s children over a period of years. In fact, the great-grandmother was a co-respondent with the mother and grandmother in neglect proceedings filed on behalf of three of SK. N.'s children in 2006. The trial court found that the great-grandmother had neglected the children based largely upon unsanitary conditions in the home, but that finding was reversed by the Appellate Division in late May 2009. Pursuant to further neglect proceedings against the mother filed in 2007 on behalf of S. N. and JL. N., the trial court found that the mother neglected the children based upon failure to provide minimally appropriate medical and dental care. This finding was based upon the condition of the children while they lived in the home of the maternal great-grandmother, SN. N.
In September 2007, the Family Court removed then-newborn B. G. from his mother's care and placed him with L. K., who has remained B. G.'s foster parent to this day. The court found neglect against the respondent mother. A similar finding of neglect was made against SK. N. concerning newborn E. N. in 2009. From four days of age, E. N. has been living with his foster mother, K. G., who has ably served as E. N.'s foster parent to date.
After respondent mother failed to engage meaningfully in services and did not address the conditions which led to the placement of S. N., JL. N. and M. N. in foster care, the foster care agency filed a petition to terminate her parental rights as to these children in September 2008. Another Judge found permanent neglect against the mother on July 8, 2009. After that Judge began presiding in another borough, this court conducted the dispositional hearing and signed an order on November 23, 2009 terminating the mother's parental rights concerning these three children and freeing the children for adoption by their foster parents. The adoption by their foster parents has been held in abeyance pending a determination by the Appellate Division of a motion to dismiss the mother's appeals.
On September 16, 2009, the great-grandmother filed petitions seeking orders granting her visitation concerning these three children. By order dated December 14, 2009, this court granted the motion of the attorney for these three children and dismissed the great-grandmother's visitation petition based upon lack of standing.
On October 20, 2009, the great-grandmother filed a visitation petition on behalf of JS. N. and JM. N., who are in her care, seeking an order of visitation with JL. N., S. N. and M. N. The court and the parties arranged for and monitored visitation among these five siblings through a series of court conferences and hearings. At one point, in May 2010, the court granted the motion of the attorney for the three children to direct the great-grandmother not to notify the mother of the visits as there was an incident involving the mother who appeared with her boyfriend at one of the sibling visits and told the children that they were taking them out of foster care. After monitoring the visitation, the court granted on consent a final visitation order directing that visitation among these five siblings occur at least once monthly for three to four hours, with the caseworker or the foster mother to supervise the visits. The order stipulated that, "[n]o one shall speak with subject children regarding court proceedings, adoption, birth mother or birth father at visits."
The great-grandmother obtained custody of JS. N. and JM. N. through a 2003 custody proceeding.
With respect to B. G., ACS filed a neglect petition on September 13, 2007 and, only weeks old, B. G. was placed in the foster home of L. K., where he still resides. Another Judge granted the agency's motion for summary judgment and entered a finding of neglect against respondent mother. On December 21, 2007, DNA testing excluded J. G., the putative father, as the biological father of B. G. Following a dispositional hearing, the court found that it was in B. G.'s best interest to place him with the Commissioner of Social Services.
It was not until nearly two years later, on August 6, 2009, that the great-grandmother filed the instant custody petition seeking a final order of custody of B. G. His attorney, ACS and the foster care agency opposed the petition.
The November 25, 2008 neglect petition concerning E. N. followed a similar path. The trial Judge granted ACS's motion for summary judgment and that court entered a finding of neglect against the mother on April 15, 2009. After a dispositional hearing, the court placed
E. N. with the Commissioner of Social Services. Since the initial removal of E. N. from the mother in 2008, E. N. has resided with his foster mother, K. G. Both B. G. and E. N.'s foster mothers have provided them with loving, nurturing homes and they very much wish to adopt the boys.
Although it was not until August 6, 2009 that the great-grandmother filed for custody of E. N., following the fact-finding phase of proceedings to terminate the mother's parental rights regarding B. G., and during the neglect proceedings concerning E. N., this court ordered visitation on behalf of the great-grandmother with both subject children. The foster care agency and ACS monitored the visitation. The progress of that visitation was discussed at a number of court conferences with all parties and the attorneys for all of the children participating. While for a period of time it appeared that the custody cases would be resolved with post-adoption visitation for the great-grandmother, the parties were unable to resolve the outstanding issues. During pre-hearing conferences, the court ordered expanded visitation for the great-grandmother to permit her and the subject children an opportunity to bond to the extent possible.
The court issued a forensic order in both custody cases. The court appointed Dr. Seymour Moscovitz, Clinical Director, New York County Family Court Mental Health Services, as the forensic examiner in both sets of cases. The court directed the expert to conduct a forensic evaluation of the subject children, the foster parents, respondent mother and the great-grandmother. The order provided that the forensic examiner observe each subject child with the great-grandmother, the current foster parent, and during sibling visitation. Dr. Moscovitz, a clinical psychologist, also reviewed medical and other records.
The court ordered that the evaluation address the following specific issues: Each party's ability to make appropriate decisions for the children; the strengths and weaknesses of each party's ability to parent, including her willingness to encourage and foster a positive and long-term relationship with the other adults and siblings in the child's life; any psychological difficulties of any party which might adversely impact decision-making and parenting time; any behavioral, emotional, developmental, psychological and attachment needs of the child, and the ability of the party to address those needs; and child protective risk factors which may impact upon decision-making and residential arrangements and/or access scheduled to be ordered by the court. Very importantly, the court directed the forensic examiner to address a fundamental issue in these cases — the possible trauma to the child occasioned by a change in placement from the foster parent to the maternal great-grandmother; and whether the short-term impact is outweighed by any potential long-term benefit of the child being in the care of his great-grandmother.
The foster parents, the great-grandmother and the children participated in the forensic evaluation. Respondent mother did not appear. The forensic expert issued an evaluation concerning each set of cases. The court will address these reports infra, in the context of evaluation of the trial testimony.
The foster care agency subsequently filed a petition seeking to terminate the mother's parental rights concerning E. N. in February 2011. Shortly thereafter, in late February 2011, the court commenced the already scheduled joint hearings as to subject child B. G., with the former ACS caseworker and the foster mother testifying. On March 17, 2011, the court found pursuant to Soc. Serv. Law sec. 384-b, by clear and convincing evidence, that respondent mother permanently neglected E. N. The court joined the dispositional hearing concerning E. N. with the great-grandmother's custody petition. The court in turn directed, on consent, that these hearings be joined with hearings just underway concerning B. G. The same attorney represented the great-grandmother in both sets of cases. The joint hearings continued on March 28, 2011 and on other court dates. The parties submitted post-trial memoranda and the court reserved decision.
Since this court was assigned to this family in July 2009, it has addressed motions and conducted hearings concerning the following inter-related proceedings:
B. G.: NN-11433/07 (post-dispositional and permanency planning hearings in neglect petition)
V-24502/09 (great-grandmother's custody petition)
B-25556/09 (termination of parental rights proceeding)
E. N.: NN-13395/08 (post-dispositional and permanency planning hearings in neglect petition)
V-24498/09 (great-grandmother's custody petition)
B-3732/11 (termination of parental rights proceeding)
JL. N., M. N and S. N.: NN-9252-3/06, NN-3534-5/07 (post-dispositional and permanency planning hearings in neglect proceedings)
B-8992-4/08 (termination of parental rights proceedings)
V-27040-2/09 (great-grandmother's visitation petitions)
V-26582-4/09 (great-grandmother's visitation petitions on behalf of JS. N. and
JM. N., two of respondent mother Shaniqua N.'s children in her care)
V-14206-8/11 (great-grandmother's custody petitions)
TRIAL TESTIMONY
Although certain aspects of the trial testimony involved both subject children, the court focused first on the proceedings concerning B. G. The first day of hearings took place on February 25, 2011. Andre Dawkins testified that he was the caseworker assigned to B. G.'s case from August 2009 through January 14, 2011, when he left the agency for other employment. He had no reason to prevaricate. Mr. Dawkins presented as a genial, honest, direct and informed witness who displayed an accurate present recollection of pertinent events.
Within a few weeks of his birth in August 2007, B. G. was placed in his present foster home with foster parent L. K. Mr. Dawkins testified credibly that he visited the foster home monthly and observed a very loving, close mother-child relationship between L. K. and B. G. Mr. Dawkins stated that L. K. was "one-hundred percent involved" in addressing B. G.'s special needs. B. G. has required speech and occupational therapy. At times, L. K. served as liaison between Mr. Dawkins and the agency that provided B. G. with his special services. Mr. Dawkins averred that, as a foster mother L. K. was not required to participate in B. G.'s play therapy, but she did so nonetheless. The agency, Mr. Dawkins stated, strongly supports L. K.'s desire to adopt B. G.
With respect to respondent mother, Mr. Dawkins testified that the last contact he had for some time with her was in December 2010. SK. N. called the caseworker to tell him that she had given birth to another child in Pennsylvania, was not returning to New York, was not planning for B. G., and wanted her own grandmother to care for B. G. Mr. Dawkins stated that the mother had not met any service plan goals for her to be reunited with B. G. and that the mother's newborn child was no longer residing with her; rather the child was with the social services agency in Pennsylvania. The caseworker made all appropriate referrals for the mother, but she did not appear for any appointments for services.
Mr. Dawkins observed sibling visitation among B. G., S. N., JL. N. and M. N. arranged by B. G.'s foster mother, L. K., and the other children's foster mother. B. G. and these siblings are very bonded and it is clear that they will continue to enjoy meaningful sibling contact after adoption by their respective foster parents.
When B. G. was to be placed in foster care, within a few weeks of his birth, he was placed with L. K., not with B. G.'s great-grandmother, SN. N. Although the great-grandmother contended pretrial that the subsequently reversed neglect finding against her inhibited her attempts to be B. G.'s foster parent or custodian or prevented her from meaningfully participating in B. G.'s life, the credible trial testimony, including that of Mr. Dawkins, leads to the directly contrary conclusion, that it was the great-grandmother's deliberate decision not to be involved with B. G. during the first two years of his life to give the respondent mother numerous opportunities to overcome her lifetime issues and regain custody of B. G. As will be discussed in further detail infra, this is but one important, but typical, example of poor judgment on the part of the great-grandmother. At no time has the mother demonstrated an ability to address in any meaningful manner her long-term drug and other issues that prevent her from parenting her biological children in a minimally safe manner. Had the great-grandmother stepped forward to assist in raising B. G. during the crucial early periods of his life, it is possible that she could have formed a deeper bond with B. G. than the one which she now has.
It was only after the court orally freed S. N., JL. N. and M. N. for adoption in late July 2009 and it was clear that the agency would file a termination proceeding concerning B. G. that the great-grandmother indicated an interest in gaining custody of B. G., Mr. Dawkins averred. Through court proceedings, the foster care agency established a visitation schedule among B. G., the great-grandmother and B. G.'s siblings, JM. N. and JS. N., who were in SN. N.'s care. The visits did not go well at first, as B. G. did not know his great-grandmother. Some early visits had to be terminated because B. G. was screaming for his mother (foster mother L. K.). According to Mr. Dawkins, B. G. first became comfortable with SN. N. in June or July 2010. Pursuant to this court's orders, visitation took place approximately every two weeks and later weekly for two to two and one-half hours per visit. Mr. Dawkins observed approximately 30-40 hours of visits and observed a gradual progression by B. G. to a level of comfort with his great-grandmother, which the caseworker described as "familiar, friendly and loving."
Similarly, Nilmary Perez, B. G.'s current caseworker, testified to the close, loving, "mother-child" relationship between L. K. and B. G. Ms. Perez observed that B. G. refers to L. K. as "mommy" and wants her around him at all times. The present caseworker has observed B. G. during multiple visits with his great-grandmother. B. G. refers to her as "grandma". After a period of time, Ms. Perez stated, B. G. becomes anxious and calls for "mommy".
B. G.'s foster mother, L. K., testified for petitioner that B. G. was placed with her on September 16, 2007. B. G. came directly to her from the hospital and was five weeks old. He has lived with her since that time. She very much wants to adopt B. G., whom she considers her son. L. K. stated that she met B. G.'s great-grandmother on one occasion at a visit between the biological mother and B. G., who was then about six months old. L. K. did not see the great-grandmother for the next one and one-half years. She testified that she never received cards, gifts, letters directly or indirectly from the mother or great-grandmother on behalf of B. G. She described her close-knit and loving family, which included B. G. and L. K.'s own biological son, Q. K., who is now 22 years of age. She described Q. K. treating B. G. as a younger brother. She takes B. G. for all of his appointments and has had services for B. G. in her home. The potential adoptive parent described "sleep terrors" B. G. has had for the past year and how she comforts him during the night.
L. K. has been employed as a home attendant since 2005. She described her family's daily routine, including taking care of B. G., accompanying him to the park, as well as her visits with his siblings who reside with their foster parent. L. K. presented to the court as a warm, loving, sensitive parent to B. G., who is very attuned to B. G.'s emotions and needs.
Although L. K. appeared to this court to be a credible witness with respect to her relationship with B. G., it should be noted that L. K. did not appear to be forthcoming concerning how much she wanted to adopt B. G. and her wish not to have the great-grandmother serve as B. G.'s primary parent. The foster parent denied in court that she opposed some time ago the great-grandmother's attempt to gain custody of B. G., when in fact, it appears that she was very emotionally attached to B. G. and at all relevant times wanted to adopt him. The lack of candor by the foster parent was wrong. This conduct does not undercut the court's observation of L. K. as a deeply loving and nurturing parent to B. G. who very much wants to adopt the child whom she has raised essentially since birth.
Dr. Moscovitz's forensic reports were submitted into evidence on consent as joint court exhibits and all parties had full opportunity to cross-examine the expert witness. Dr. Moscovitz noted that respondent mother failed to participate in the forensic examination. Dr. Moscovitz testified in a manner consistent with the findings in his forensic evaluations.
With respect to B. G., Dr. Moscovitz opined that L. K. was a loving, nurturing parent who understood and addressed the child's special needs. In his report, the forensic examiner noted L. K.'s well-developed empathy and that the foster parent "impressed as appropriately identifying the subject child's developmental delays and has an adequate awareness of his special needs." Dr. Moscovitz observed that L. K. has arranged for B. G. "to receive necessary and recommended evaluations and services, and . . . demonstrates strong bonding to the child and tolerance for child-related stressors," such as his night terrors. The foster mother's style of parenting, the examiner noted, "shows a high level of warmth and expressed affect and an ability to provide controls in a non-punitive way . . ."
On the other hand, the forensic examiner stated that the great-grandmother, SN. N., in her role as leader of an extended family, "has presided over an intergenerational pattern of dysfunction, in which certain beliefs, attitudes, and maladaptive coping strategies have contributed to an ongoing cycle of child protective involvement." Dr. Moscovitz explained in his report and in his testimony that SN. N. tended to minimize or rationalize serious problems and project blame onto others. For example, SN. N. tended to absolve her granddaughter SK. N., the respondent mother herein, of any responsibility for her condition or for B. G. continuing in foster care, essentially blaming the situation on the mother not maintaining her visits with the child and with her other children. This is despite SN. N. obtaining de facto custody of JM. N. and JS. N. when the birth mother, SK. N., left them in her house one day and never returned, according to SN. N.'s own testimony. This occurred at different times with each child. With respect to the judicial findings of medical and dental neglect involving S. N. and JL. N., SN. N. appeared to place the blame on the attorney for the children fabricating such evidence and forcing the children's teeth to be extracted unnecessarily.
The expert witness observed that SN. N.'s parenting style was "low-to-moderate in warmth and expressed affect and low in control. SN. N. demonstrated an inability to provide effective adult supervision and guidance when observed with B. G. and his siblings in a play situation that became chaotic and potentially hazardous." Dr. Moscovitz opined that "[SN. N.]'s laissez-faire' parenting style would be a poor fit for a child with [B. G.'s] behavioral problems." Moreover, SN. N.'s decisions which have greatly impacted upon JM. N. and JS. N.'s education, including "home schooling" these two children, raised a serious question in the forensic examiner's view as to SN. N.'s judgment. The court will discuss the home schooling in greater detail, infra.
In his forensic report, Dr. Moscovitz concluded that, "[b]ased on these clinical findings, it is the examiner's opinion that a change in caretaking arrangement, such as petitioned by the maternal great-grandmother and involving separation from and probable loss of the child's primary attachment figure, would likely be highly disruptive to B. G. at this stage of his development." Upon cross-examination, the expert witness stated that awarding primary custody to the great-grandmother would "be wrenching [B. G.] away from a secure attachment base" and would be harmful to the child.
As part of her theory of the case, the great-grandmother posited that the court should project that, had the great-grandmother had more time in the past and/or greater time with B. G. in the future, the bonding would have been or will be at such a level that it would be in B. G.'s best interest now to change custody, or at least that the court should embark upon a controlled course of visitation and services that would lead to an orderly, beneficial transition of custody from L. K. to SN. N. Dr. Moscovitz, on the other hand, testified that the level of time SN. N. had with B. G. was not a basis for his conclusions regarding SN. N.'s parenting style, including inability to control interactions and to set limits as needed with B. G. The expert witness rejected the notion that a transition in care would be appropriate in this instance. In addition to the evidence discussed above, Dr. Moscovitz testified that the great-grandmother was not receptive to having services in her home or for B. G. and incorrectly believed that she had sufficient resources to raise several children, including B. G. and E. N.
SN. N.'s own testimony further highlighted the concerns expressed by the forensic examiner and others concerning whether it would be in B. G.'s best interest to award custody to SN. N. She moved from a project in Manhattan to a project in The Bronx at her request, despite her belief that the schools in The Bronx were inadequate. If that is indeed the case, the court joins the forensic examiner in questioning the great-grandmother's judgment concerning this move. She then decided to home-school JS. N. and JM. N. There was much testimony concerning SN. N.'s home schooling of these two children. SN. N.'s home-schooling of JS. N. and JM. N. and her apparent educational expectations concerning B. G. and E. N., should she receive custody of either or both, raise compelling concern.
As noted by the forensic examiner, SN. N. often brought JS. N. and JM. N. to court and to clinical appointments during the day without the children having any appointment. SN. N. testified initially that the New York City Department of Education ("DOE") monitored her home-schooling, but subsequent testimony revealed that oversight is non-existent. Despite the more than two years in age difference between the children, SN. N. does not meaningfully differentiate the extremely limited educational instruction that she provides. Admittedly, "not too good with algebra and geometry," SN. N. stated that she employed a tutor since December 2009 as she was told that there was "new math". As it turns out, the tutor is someone who works in a library on 86th Street who is not assigned to the children. In fact, there is no tutoring at the library. SN. N. stated that she was thinking of enrolling the children in what appears to be a "Sylvan" learning center, but SN. N. could not remember or pronounce the name of that facility. The great-grandmother testified that she did not need any training for home schooling and that she developed her own curriculum. SN. N. could not describe that curriculum or name a single textbook that she has used for JS. N. or JM. N. over the past two years.
During cross-examination on April 8, 2011, SN. N. testified that she last taught JS. N. science the night before. Questioned as to details, SN. N. acknowledged that she had not used a textbook, but had taught the ten year-old measurements, weather, different squares and shapes, areas and circumferences. The witness stated that she could not remember any of the formulae, such as for the area of a square or rectangle, as she "did not do well in math."
With respect to music instruction, local schools permit home schooled children to use instruments there, but SN. N. stated that she has not taken advantage of this opportunity. With respect to teaching the ten and twelve year-old children to read, SN. N. testified that she sometimes takes the children to the library to pick out their own books, but could not recall the last book that JS. N. read because they had taken the books back to the library. After testifying that JS. N. had read over 50 books in the past year, upon further questioning, the witness could not recall the name of a single book. SN. N. does not know where the library is located in the neighborhood where she currently resides.
SN. N. averred that JS. N. sat for the English Language Arts ("ELA") examination last year as required by law, but that SN. N. did not know the measurement and scale for the scores in the ELA and is not familiar with the substance of the ELA tests. SN. N. gave the children no other tests. SN. N. stated that she could seek assistance from another home schooling parent, but had not done so. The children have had no friends over to the home since they moved to The Bronx. They have not participated in plays, music or art in any meaningful manner and have not gone to museums. SN. N. does not recall the name of JS. N. and JM. N.'s dentist. Upon questioning, SN. N. stated that she could not recall the number of grandchildren that she had, thinking that it was ten or eleven and later stating that she had 15 grandchildren.
The focus upon SN. N.'s home schooling of JS. N. and JM. N. highlights the serious lack of insight and judgment on the part of SN. N. The great-grandmother's concerns regarding the schools near her Bronx home may now be obviated, as she apparently fled that home with the children in her care just prior to the conclusion of trial based upon allegations of threats by the boyfriend of her granddaughter SK. N. against her. She is now living in New York County in an apartment provided on a temporary basis by a domestic violence prevention agency and is awaiting a transfer to another New York City Housing Authority apartment.
DISCUSSION
In any custody analysis, the court must, of course, focus upon what is in the child's best interests and is not limited by a finite set of determinative factors. Eschbach v. Eschbach, 56 NY2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 (1982). Rather, the "court is guided by principles which reflect a considered social judgment in this society respecting the family and parenthood." Bennett v. Jeffreys, citing Matter of Spence-Chapin Adoptions Serv. v. Polk, 29 NY2d 196, 204, 274 N.E.2d 431, 436, 324 N.Y.S.2d 937, 944 (1971). Looking at the totality of circumstances, the Court may consider a party's ability to provide stability in the child's life, and her ability to provide for the physical, emotional, and educational needs of the child. St. Clemente v. Cascale, 29 AD3d 367, 815 N.Y.S.2d 51 (1st Dept. 2006). See also In re Reeva A.C. v. Richard C. , 84 AD3d 521, 921 N.Y.S.2d 857 (1st Dept. 2011). The court may also delve into the child's life to ascertain the child's relationships and activities, Banks v. Banks, 285 AD2d 686, 726 N.Y.S.2d 795 (3rd Dept. 2001), and to assess the quality of the home environment and relative fitness of a potential custodian, Esposito v. Shannon , 32 AD3d 471 , 823 N.Y.S.2d 159 (2d Dept. 2006).
The instant proceedings differ meaningfully from straightforward custody contests in that these proceedings entail disposition at the conclusion of termination of parental rights proceedings following years in foster care subsequent to findings of neglect and then permanent neglect against the birth mother. The issue before the court is not just whether one party or another should be awarded custody; rather, a threshold issue is whether or not the court should terminate the biological mother's parental rights and free the children for adoption to achieve appropriate permanency in their lives, as opposed to an award of custody. See Matter of Arnetta S. v. Commissioner of Soc. Serv., 186 AD2d 519, 589 N.Y.S.2d 327 (1st Dept. 1992). With respect to permanency, there is no male who is entitled to notice of this proceeding or whose consent to adoption is required. The birth mother, SK. N., has made no progress whatsoever in planning for the return of B. G. from foster care and has indicated that she does not wish to plan for his return from foster care. It is in B. G.'s best interest that he be freed for adoption. Even if this court determined that it was in B. G.'s best interest to live with the great-grandmother, which it does not, it would dismiss the custody petition because adoption by a loving, nurturing adult is in his best interest.
At this stage of the termination of parental rights and the custody proceedings, the only relevant analysis is what is in the best interest of the subject child. Matter of Star Leslie W., 63 NY2d 136, 147, 470 N.E.2d 824, 481 N.Y.S.2d 26 (1984). See also Matter of Carolyn S. v. Tompkins Co. Dept. of Soc. Serv., 80 AD3d 1087, 915 N.Y.S.2d 719 (3rd Dept. 2011). A grandparent, no less a great-grandparent, "has no preemptive statutory or constitutional right to custody surpassing that of persons who might be selected by the agency as suitable adoptive parents." In re Geneva B. v. Admin. for Children's Serv., 73 AD3d 406, 899 N.Y.S.2d 606 (1st Dept. 2010), citing Matter of Luz Maria V. , 23 AD3d 192 , 194, 803 N.Y.S.2d 544 (2005), lv. den., 6 NY3d 710, 846 N.E.2d 477, 813 N.Y.S.2d 46 (2006); Matter of Peter L., 59 NY2d 513, 520, 453 N.E.2d 480, 466 N.Y.S.2d 251 (1983). See also FCA sec. 631 (Order of disposition following adjudication of permanent neglect shall be made "solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular disposition.").
The great-grandmother has not had unsupervised visitation with B. G. He has never been to SN. N.'s home in The Bronx or to her new, temporary apartment. With respect to her not stepping forward earlier in B. G.'s life, SN. N. testified that she did visit with B. G., accompanying SK. N. and others at first, but the agency advised her that there were too many people at the visits and that the birth mother needed an opportunity to bond with the child. The great-grandmother testified that she wanted to give her granddaughter an opportunity to get her children back and did not want to interfere, letting the birth mother "do what she needed to do." SN. N. acknowledged that it was important for a parent or guardian to be with a child "from day one" to bond with that child.
SN. N. last worked in 2006 as part of her public assistance requirement, but acknowledges that she has no physical or non-physical impairments. SN. N. has not had a full-time job in the more than 30 years that she has lived in New York. SN. N. has not made clear how she would care for up to seven children of SK. N. whom she wants in her care. There is no clear-cut plan for their support and nurture. From educational, vocational, financial and emotional perspectives, L. K. is by far the better choice for B. G. .
This court rejects as not in B. G.'s best interest having B. G. undergo a court-supervised transition from L. K.'s to SN. N.'s care. Not only is L. K. an excellent parent to B. G. and the great-grandmother would not be, as discussed above, but SN. N. made no meaningful effort to become involved in B. G.'s life during his first two years. Again attesting to the great-grandmother's lack of insight and judgment, SN. N. did not step forward while her granddaughter made no meaningful effort or progress toward return of her children. It is not appropriate for this court or any agency to "experiment" with B. G., a child with significant special needs who is closely bonded to a loving, nurturing parent, the only parent he has ever known, by having him transition into what some would consider a dysfunctional household because the head of that household is a relative three generations removed from the child. Not only would such a course of conduct be "wrenching" for the child, as described by the forensic examiner, but it would be both misguided and cruel.
Under the totality of circumstances, the court finds that it is in the best interest of B. G. for the court to commit his guardianship and custody jointly to the Commissioner of Social Services and to the petitioning foster care agency for the purpose of freeing him for adoption without the further consent of any other individual, subject to approval by a court of competent jurisdiction. The court dismisses the custody petition. In re Shane Chayann Orion S., 79 AD3d 430, 431, 912 N.Y.S.2d 46 (1st Dept. 2010) (citations omitted).
With respect to subject child E. N., much of the same analysis of the great-grandmother's questionable ability to care for a young child whom she has not raised applies with equal force. There are meaningful differences to be addressed, however. E. N. was born on November 18, 2008 and, like B. G., was removed from his mother's care almost immediately. The Family Court entered a finding of neglect against the biological mother, SK. N., on April 15, 2009. By dispositional order dated June 10, 2009, E. N. was placed with the Commissioner of Social Services. From the time he was removed from his mother's care until the present, E. N. has been cared for and raised by his foster mother, K. G.
The court has had the opportunity to observe K. G. on a number of occasions during court proceedings, including on the witness stand. Based upon the court's observation of K. G. during her testimony, as well as upon the logic and consistency of her testimony, the court finds her to be a credible witness.
K. G. testified that she has known E. N. since he was four days old. The foster mother, now 25 years of age, was close friends with E. N.'s biological mother from the time K. G. was ten years old until shortly after E. N. was placed in her care. K. G. agreed to the request of the biological mother and the foster care agency to serve as a foster parent for E. N. and has done so since November 2008. According to this witness, SK. N. did not want the great-grandmother to have E. N., fearing that she would hit E. N. as she had SK. N.'s other children. It was K. G.'s understanding that her role as a foster parent would be limited in duration, as the biological mother, SK. N., had promised that she would do what was necessary to have E. N. returned to her care. K. G. openly acknowledged that she went along with SK. N.'s representation to the foster care agency that she was SK. N.'s relative in order to maximize the chance that she would be permitted to serve as a foster parent for E. N. .
K. G. lives in a committed relationship with her boyfriend, J. W., who has received all necessary clearances. J. W. and K. G. have been in a relationship for four years. J. W., an assistant manager at a department store, appears to have a strong bond with E. N., who calls him "Jay" or "Ay". K. G. has no criminal or mental health history and has had no ACS involvement in her life. Although she has wanted to give birth to her own child, K. G. suffered a miscarriage just prior to her interview by the forensic examiner in this case. In September 2010, a few months before her meeting with the forensic examiner, K. G.' grandmother, who raised her, passed away.
K. G. described a typical morning in caring for two year-old E. N., whom she was potty training. She wakes him up, has him sit on the toilet, lets him watch some cartoons, has him play on the computer to help him learn, reads to him, uses flashcards to help him vocalize his thoughts, takes E. N. outside for a walk or to medical or other appointments. K. G. completed the 11th grade and then obtained her GED. She currently receives unemployment insurance benefits and is actively seeking employment. The forensic examiner noted with criticism K. G.'s apparent statement that she could not find employment because she was caring for E. N., indicating from the examiner's perspective, that the foster parent was in some manner blaming E. N. for her lack of employment. During the hearing, K. G. testified credibly that it was in part because of the requirements of visitation with the great-grandmother and because of other appointments or commitments necessitated by her caring properly for E. N. that she could not obtain full-time employment. The court interprets this testimony as a straightforward statement of fact and notes that K. G. has been working with the agency caseworker to obtain day care so that she can be employed.
The foster parent testified that she and E. N. play a great deal and that she has grown to love him very much and is very protective of him. E. N. calls her "mom". Neither E. N.'s birth mother or his great-grandmother has sent E. N. cards, gifts or letters. After the biological mother stopped visiting E. N., K. G. realized that E. N. was not going to be returned to SK. N., and she stated that she would adopt E. N. If she received approval to adopt E. N., she would encourage visitation between the great-grandmother and E. N., even though she is apparently wary of the great-grandmother, as she did not want the great-grandmother to know the borough in which she lived.
Although the great-grandmother focused upon K. G.'s participation in having the foster care agency believe that she was SK. N.'s cousin, it appears that the great-grandmother was aware of this ruse as well. More importantly, it was K. G., not SN. N., who stepped up to care for E. N. when he was first placed in foster care as a newborn and who has raised him in a loving home since that time.
Similar to the time frame with B. G., the great-grandmother did not step forward to even seek meaningful contact with E. N. until the summer of 2009. Matter of Deborah F. v. Matika G. , 50 AD3d 1213 , 1215, 855 N.Y.S.2d 299 (3rd Dept. 2008). This court ordered the foster care agency to arrange a progressive series of visits between SN. N. and E. N., starting with visitation supervised at the agency, moving to limited unsupervised visitation, unsupervised visitation for a day, followed by overnight visitation and then ultimately progressing to weekend visitation. The quality of the visits appeared generally to go well and E. N. has developed a bond with his great-grandmother. This visitation apparently stopped, however, during the hearings, as the great-grandmother left her home because of alleged threats from SK. N.'s boyfriend, the father of her eighth child.
The interview between the foster mother and the forensic examiner appears to have been marked by guardedness by the foster mother and a lack of understanding on her part of the nature and purpose of the evaluation. The forensic examiner stated that the foster parent appeared somewhat sullen and surmised that K. G. was ambivalent about parenting E. N. because she indicated that she lost her job early in her foster parenthood because of her foster parent obligations concerning visits and appointments and it may have been the strain of her having to take the subject child to numerous appointments and visitation at the foster care agency that may have contributed to her miscarriage.
This court's observation of K. G. is that she is a sincere, straightforward person who loves E. N. and who has taken good care of E. N. from the time he was four days old despite being essentially a single parent, with limited financial and educational resources. K. G. did come forward at the request of her close childhood friend to care for E. N. based upon the birth mother's representation that she was attending parenting classes and was compliant with all required services that would lead to an early return of E. N. to his biological mother. K. G. was very young at this time and had held a steady job. K. G. had obtained an 11th grade education and then her GED while working in a retail store at night. The foster parent's loss of her steady employment may well have resulted, as she stated, from her having to miss numerous days of work for appearances at the foster care agency and it may also well be that her parenting obligations do prevent her from gaining further job training and full time employment, something to which she clearly aspires. In light of her clear love of and dedication to E. N., her statement to the forensic examiner and her testimony in court about her loss of employment does not appear to the court to indicate ambivalence about parenting; rather, it is a direct explanation from the foster mother's perspective as to what occurred.
It is also readily apparent from the forensic evaluation and through her testimony that K. G. is very private and guarded about revealing personal, truly intimate details of her life to strangers, including the forensic examiner and the court. While the foster care agency may or may not have explained to K. G. prior to the forensic evaluation what to expect and why certain questions would be asked, K. G.'s guarded reaction to necessarily probing questions as to her personal life is by no means extraordinary or indicative to the court of ambivalence concerning her love for and devotion to E. N.
As the testimony and the forensic evaluation made clear, E. N. is very attached to K. G. At various times, the forensic examiner noted that E. N. was inconsolable for extended periods of time when not in the presence of the foster mother and that the foster parent and E. N. were affectionate with one another.
With respect to the great-grandmother, it is clear that she knew that E. N. was in foster care from birth, and was aware that he was placed with K. G., but took no steps until the summer of 2009 to become involved in E. N.'s life. SN. N.'s lack of insight in general and regarding E. N. in particular is apparent in several aspects of her testimony and in the forensic examiner's report.
In his report, Dr. Moscovitz noted that despite the physical threats to her and indirectly to any children living with her, SN. N. indicated that she wanted to have SK. N.'s most recent newborn child live with her. The court has serious concerns as to whether and under what circumstances the great-grandmother would return the subject children to the mother should the great-grandmother be awarded custody. With respect to SK. N.'s eighth child, not a subject of New York court proceedings, the great-grandmother, according to the forensic examiner, "entertained the possibility that the . . . mother will take responsibility for the child. Maybe this baby will change her,' [SN. N.] observed." Dr. Moscovitz made clear in his trial testimony that he was not recommending either the great-grandmother or the foster mother as the ultimate parental resource for E. N.
During trial, the attorney for E. N. supported a transition in custody from the foster mother to the great-grandmother. Prior to issuance of this decision/order, E. N.'s attorney changed her position to support the foster mother:
"In view of circumstances that have recently become known to me, and to the Court, in the matter regarding my client, [E. N.], I am withdrawing my support for the maternal great-grandmother's petition for custody. Although my concerns regarding the foster mother continue, it has become evident to me that [SN. N.] is not an appropriate custodian for my client. Thus, of the two, I am now in support of the foster mother's adoption of [E. N.]."
The factual or analytical basis for this change of position is not absolutely clear to the court and counsel did not move to restore the case to the calendar for an order re-opening the proceeding. Although the court assumes that counsel was referring to the great-grandmother's most recent relocation allegedly based upon fear of violence by the birth mother's boyfriend, and other decisions taken in relation thereto, the court's decision today is not based upon the advocacy position taken by counsel.
In addition to the great-grandmother not recognizing possible developmental delays in E. N., not understanding appropriate milestones for a young child, by stating that E. N. was delayed because he could not walk by ten months, not being able to control safely or appropriately situations described in the forensic examiner's report, SN. N. stated that she observed that E. N., who has known K. G. as his mother from the time he was four days old, knew instinctively that K. G. is not his biological mother. SN. N. told the forensic examiner that young E. N. wanted to leave K. G. because he knew that she was not his biological mother.
Although E. N. has formed a bond with the great-grandmother, there is no evidence to indicate that it is comparable to the close bond he has formed with K. G., or that it is or could be other than a child-grandparent-type relationship. Leslie Dunn, the caseworker from Little Flower Children's Services, the foster care agency assigned to E. N., testified that she was assigned to E. N. since he first came into care until early 2011. Ms. Dunn testified that E. N. and K. G. were "really attached" to one another and that E. N. regularly follows her around, going only briefly to other people. The court found Ms. Dunn to be an honest, caring witness. Ms. Dunn, who has observed K. G. and E. N. over an extended period of time, testified that she never had any concern about the foster mother's affect or E. N.'s development in the care of K. G. While it would be beneficial for E. N. to continue to develop a relationship with his half-siblings who live with SN. N., it appears that K. G., after adoption, will encourage that relationship.
As with B. G., the court does not believe that it is in the best interest of E. N. to wrench him from his home and the only parent he has ever known in an attempt to transition him to being raised by the great-grandmother. K. G. and, to an extent, her boyfriend, are E. N.'s immediate family and it is the best interest of E. N. to be raised by K. G. Matter of Peter L., 59 N.Y.32d 513, 453 N.E.2d 480, 466 N.Y.S.2d 251 (1983). The great-grandmother herein faces "a virtually impossible task," as she must demonstrate that not only would she make a suitable adoptive parent, but would provide a better adoptive home than that planned by E. N.'s social service agency. Id. at 520, quoting People ex rel. Ninesling v. Nassau Co. Dept. of Soc. Servs., 46 NY2d 382, 389, 386 N.E.2d 235, 413 N.Y.S.2d 626 (1978).
In light of the totality of circumstances, the court finds that it is in the best interest of E. N. to commit the guardianship and custody of E. N. jointly to the Commissioner of Social Services and to the petitioning foster care agency for the purpose of freeing the subject child for adoption without the further consent of any other individual, subject to approval by a court of competent jurisdiction. The court dismisses the custody petition. Matter of Sharon V. v. Melanie T., 925 N.Y.S.2d 231, 234-35, 2011 NY Slip Op. 04793 (App. Div. 3rd Dept. June 9, 2011); Matter of Deborah F. v. Matiga G. , 50 AD3d 1213 , 1215, 855 N.Y.S.2d 299 (3rd Dept. 2008).
This constitutes the decision of the court. The court will enter orders dismissing the custody petitions. Concerning the termination of parental rights proceedings, the petitioning agencies are to settle orders on notice. The freed-child permanency planning hearing will take place in Part 9, August 9, 2011, 2:30 — 3:00 P.M.