Matter of P.C. v Orange County Dept. of Social Servs.
Annotate this CaseDecided on August 4, 2009
Family Court, Orange County
In the Matter of a Proceeding Under Article 6 of the Family Court Act., P.C., Petitioner,
against
Orange County Department of Social Services, Respondent.
V-1628/1630-09
The Department of Social Services was represented by the Orange County Department of Law, Christine Foy Stage, Esq., of counsel;
the Attorney for the Children is Karen A. Riley, Esq.,
The Children's Rights Society and the grandmother appeared pro se.
Andrew P. Bivona, J.
This is an application by the Orange County Department of Social Services to dismiss the petitioner grandparent's application for custody/visitation with the subject children. The application was brought on by way of Notice of Motion returnable in this Court on June 15, 2009. On the return date the Petitioner appeared without counsel, the Respondent Department of Social Services appeared by Christine Foy Stage, Esq., of counsel to the Orange County Department of Law, and Karen Riley, Esq., of counsel to The Children's Rights Society appeared on behalf of the subject children. The Petitioner opposed the motion orally and the Attorney for the Children opposed the motion orally and in writing. However, the Attorney for the Children states in her Affirmation in Opposition, that the Affirmation is submitted only as to R. and B. and that the motion is consented to as to T.. [*2]
In reaching its Decision, the Court has considered the motion papers submitted herein, the arguments advanced on the return date and the contents of the Court's file.
The children who are the subjects of the underlying petition are: B. L. Merwede, born February 7, 1994, age 15 years; T. A. Merwede born November 11, 1992, age 16 years; and T.' twin, R. H. Merwede, Jr., born November 11, 1992, age 16 years. In 2000, the Orange County Department of Social Services filed a petition against these children's parents, R. and B. M.. The children were placed in foster care and in 2003 proceedings to terminate parental rights were initiated. On May 14, 2003, B. M. signed judicial surrenders freeing the children for adoption and on June 24, 2003, R. M. likewise signed judicial surrenders freeing the children for adoption.As of this date no adoption proceedings have been commenced and at the last permanency proceeding it was determined that none of the children wish to be adopted. It was also learned at that hearing that R. and T. had been removed from their long term foster home as they had been abused in that home. R. is currently placed at McQuade which is a residential center and T. resides at A Friends House in Middletown, New York. B. is in therapeutic foster care through Abbot House. Unfortunately, these three siblings do not reside together and according the Affirmation of their attorney have limited contact with each other.
At common law grandparents had no right to visitation against the wishes of a custodial parent (Matter of Emanuel S. v Joseph E., 78 NY2d 178; 573 NYS2d 36). The New York State Legislature saw fit to enact legislation which grants grandparents the right to seek visitation with their grandchildren. Domestic Relations Law §72 governs grandparent visitation and grandparent custody. That section grants grandparents the right to seek visitation where "either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene...." (Domestic Relations Law §72[1]). The statute then provides that the court "may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child." Id.
In 1983 the Court of Appeals reiterated that visitation between grandparents and grandchildren was governed by the standard of best interest of the child even when the children have been surrendered for adoption (Matter of Peter L. v Krauskopf, 59 NY2d 513 at 520; 466 NYS2d 251 at 254). That principle was applied in Matter of Ann M.C. v Orange County Department of Social Services, 250 AD2d 190; 682 NYS2d 62, where the petitioning grandmother's parental rights to her daughter had been terminated and she was seeking visitation of that daughter's child. The Second Department found:
"A grandparent may seek visitation with a grandchild even after parental rights have
beenterminated or the child has been freed for adoption (cites omitted)." Matter of Ann M.C.
v Orange County Department of Social Services, supra , at 194; at 65.
The Court went on to reiterate:
"Thus, now a grandparent seeking visitation must first demonstrate the existence ofstanding by proving either that his or her child has died, or that standing should be granted based upon equitable considerations. Thereafter, whether or not to permit grandparental visitation turns on an evaluation of the best interest of the grandchild (Matter of Emanuel S. V [*3]Joseph E., supra ). Each case must be determined on its individual merits. It is settled that the very issue of standing should only be made after consideration of allrelevant facts and circumstances." Matter of Ann M.C. v Orange County Department of Social Services, supra .
In 2003 and 2004, the New York State Legislature again amended Domestic Relations Law §72 to provide that grandparents may seek custody in extraordinary circumstances.The recent case of Matter of Gabriel James Mc. v Administration for Children's Services and Ann Marie Mc, 60 AD3d 1066; 877 NYS2d 126 (Second Dep't, 2009), found that in that case "conditions exist [in] which equity would see fit to intervene" where a neglect proceeding had been commenced against the mother and the grandparents were seeking either custody or visitation.
As poignantly set forth in the Attorney for the Children's Affirmation in response to the caseworker's Affirmation that the caseworker believes it is not in the children's best interest to be placed in the custody of the grandmother: "Does the Department feel it is in the children's best interest to be split into 3 different homes at this time? To have extremely limited contact with each other? To be moved from place to place into different non-relative arrangements? To be managed by a parade of ever changing caseworkers and agencies?" (Affirmation of Karen A. Riley, paragraph 7). These children have been in foster care since 2000, over half of their lives. It is clear the situation is not improving. This situation may constitute extraordinary circumstances. The motion to dismiss is denied. The Department of Social Services is directed to commence a home study pursuant to the Interstate Compact.
This constitutes the decision and order of the Court.
Dated: Goshen, NYE N T E R
August 4, 2009
______________________________
Andrew P. Bivona
Family Court Judge
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