Opinion
08-03-2016
In the Matter of Valerie D. WEISS, appellant, v. ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, et al., respondents.
The Virdone Law Firm, P.C., Westbury, NY (John Virdone of counsel), for appellant. Landgon C. Chapman, County Attorney, Goshen, NY (Christine Foy Stage of counsel), for respondent Orange County Department of Social Services. Paul G. Callagy, Poughkeepsie, NY, attorney for the child.
The Virdone Law Firm, P.C., Westbury, NY (John Virdone of counsel), for appellant.
Landgon C. Chapman, County Attorney, Goshen, NY (Christine Foy Stage of counsel), for respondent Orange County Department of Social Services.
Paul G. Callagy, Poughkeepsie, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.
Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated February 4, 2015. The order dismissed, without a hearing, the maternal grandmother's petition pursuant to Family Court Act article 6 for visitation with the subject child.
ORDERED that the order is reversed, on the law, without costs or disbursements, the maternal grandmother's petition for visitation with the subject child is reinstated, and the matter is remitted to the Family Court, Orange County, for a hearing on the maternal grandmother's petition, to be conducted before the same Judge hearing the maternal grandmother's petition in a related proceeding for custody of the subject child commenced under Docket No. V–710–14, and conducting a dispositional hearing in related proceedings to terminate the mother's parental rights commenced under Docket Nos. B–1841–14 and B–1845–14, and a new determination thereafter.
In this proceeding pursuant to Family Court Act article 6 for grandparent visitation with the subject child, the Family Court dismissed the maternal grandmother's petition for visitation, without a hearing, on the basis that she lacked standing to seek visitation as a result of a previous termination of the mother's parental rights. This was error. A biological grandparent may seek visitation with a child even after parental rights have been terminated or the child has been freed for adoption (see People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 326, 445 N.Y.S.2d 420, 429 N.E.2d 1049 ; Matter of Jordan, 60 A.D.3d 764, 875 N.Y.S.2d 188 ; Matter of Ann M.C. v. Orange County Dept. of Social Servs., 250 A.D.2d 190, 193, 682 N.Y.S.2d 62 ; Matter of Rita VV., 209 A.D.2d 866, 869, 619 N.Y.S.2d 218 ; Matter of Loretta D. v. Commissioner of Social Servs. of City of N.Y., 177 A.D.2d 573, 575, 576 N.Y.S.2d 164 ; Matter of Netfa P., 115 A.D.2d 390, 392, 496 N.Y.S.2d 21 ). In any event, the dispositional portions of the orders terminating the mother's parental rights have been vacated on the mother's related appeal (see Matter of Isabella R. W., ––– A.D.3d ––––, –––N.Y.S.3d ––––, 2016 WL 4099238 [decided herewith] ).
Where a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must undertake a two-part inquiry (see Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ). First, the court must determine whether the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances (see Domestic Relations Law § 72[1] ; Matter of E.S. v. P.D. 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181–182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; Matter of Gray v. Varone, 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573 ). Where the court concludes that the grandparent has established standing, the court must then determine whether visitation with the grandparent is in the best interests of the child (see Domestic Relations Law § 72[1] ; Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ; Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526 ; Matter of Emmanuel S. v. Joseph E., 78 N.Y.2d at 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; Matter of Brancato v. Federico, 118 A.D.3d 986, 988 N.Y.S.2d 678 ). In determining whether equitable circumstances confer standing, the court must examine all relevant facts (see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ). “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,” including whether the grandparent has a meaningful relationship with the child (id. ; see Matter of Luft v. Luft, 123 A.D.3d 831, 996 N.Y.S.2d 535 ; Matter of Sherman v. Hughes, 32 A.D.3d 959, 960, 821 N.Y.S.2d 628 ).
Here, the grandmother's petition alleged the existence of a sufficient relationship with the child to confer standing upon her to seek visitation (see Matter of Brancato v. Federico, 118 A.D.3d at 987, 988 N.Y.S.2d 678 ; Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ). Further, the information before the Family Court was insufficient to enable it to undertake a comprehensive independent review of the standing issue, without a hearing (cf. Matter of Seasia D. [Kareem W.], 75 A.D.3d 548, 552, 905 N.Y.S.2d 643 ; Matter of Lynda D. v. Stacy C., 37 A.D.3d 1151, 830 N.Y.S.2d 881 ).
Accordingly, the Family Court improperly dismissed the grandmother's visitation petition without first conducting a hearing on the issue of her standing and, thereafter, if warranted, a hearing to determine whether visitation with the grandmother would be in the child's best interests (see Matter of Brancato v. Federico, 118 A.D.3d at 987, 988 N.Y.S.2d 678 ; Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ).