[*1]
Matter of Davon D.
2015 NY Slip Op 51264(U) [48 Misc 3d 1225(A)]
Decided on April 21, 2015
Family Court, Bronx County
Hettleman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 21, 2015
Family Court, Bronx County


In the Matter of Davon D., A Dependent Child Under Eighteen Years of Age.




B-XXXX/13



APPEARANCES:

For the Administration for Children's Services:
Colleen Richman, Esq.
Bronx Family Court Legal Services
NYC Administration for Children's Services
900 Sheridan Avenue, 6th Floor
Bronx, New York 10451

For Leake & Watts:
Kerry Mulvihill, Esq.
Rosin Steinhagen Mendel
801 Second Avenue, 10th Floor New York, New York 10017

For Guardianship Petitioner:
Lauren Teichner, Esq.
Family Defense Practice
The Bronx Defenders
360 E. 161st St.
Bronx, New York 10451

For the Child:
Debra Gambella, Esq.
Legal Aid Society — Juvenile Rights Practice
900 Sheridan Avenue 6C-12
Bronx, New York 10451


Robert Hettleman, J.

The subject child's former foster parents have filed a petition for Guardianship of the subject child, and in the interim, they have sought expanded, overnight visitation with the child. Under the current law, this Court cannot cannot pursue an eventual return of the child to the foster parents without the consent of the foster care agency. In the specific circumstances presented here, a former foster parent of a subject child does not have standing to either (1) file an adoption petition for the child or (2) seek guardianship of the child. And even if it could be argued that either of these would be in the best interest of the child, the case law from the Court of Appeals and First Department specifically prohibits both options without the agency's consent. Accordingly, the Guardianship petition is dismissed, and the application for overnight visitation is denied.

Procedural Posture

On February 7, 2012, the Administration for Children's Services filed a neglect petition in Bronx Family Court, alleging neglect of the subject child, Davon. Davon was remanded and placed in foster care with Leake & Watts, who placed him with the P. family. He lived in that foster home until late 2014. A prior court found that the biological mother of the child neglected Davon, and later Leake & Watts filed a termination petition. On March 10, 2014, I found that the biological mother both abandoned and permanently neglected Davon, and that no male was entitled to any further notice or consent for any proceedings. At disposition, I committed the child's custody and guardianship to Leake & Watts, freeing him for adoption.

The P. family was prepared to adopt Davon, obtained an adoption attorney, and began the process to complete the adoption with the consent of Leake & Watts. At a permanency hearing on September 3, 2014, the only significant barrier to adoption identified by the parties was the final approval of the adoption subsidy. However, on October 22, 2014, a report was made alleging that Ms. P. used excessive corporal punishment on a different foster child. On that same day, Leake & Watts removed Davon and the other child from the P.s' home, and after an investigation, they de-certified the P.'s as foster parents. The P.'s have fought this determination in several administrative forums, without success.

Since he was removed from the P.s' home in October of 2014, Davon has been in a new, pre-adoptive foster home. The P.'s have had regular visitation with Davon, initially with the consent of the parties in this case. Now, the P.'s seek overnight visitation with Davon, and they also have filed a Guardianship petition, seeking to have Davon returned to their care, even without foster care funding. The foster care agency adamantly opposes any contact between the child and the P.'s, will not consider re-opening that foster home, and will not consent to Davon living with the P.'s under any circumstance. The attorney for the child, after initially decrying this situation as tragic and unfair to the child and the P.'s, now believes that Davon is happy in his new foster home and therefore opposes expanded visitation.



Legal Discussion

The case law makes clear that, without the consent of the foster care agency, the P.'s may seek neither adoption of Davon nor guardianship of him at this stage of the proceedings.

And this is true regardless of whether or not Davon's best interests eventually might be served by returning him to the P.'s, without or without foster care funding.



1. Adoption. In Matter of Yari, 100 AD3d 200, 206 (1st Dept. 2012), the First Department confronted an almost-identical legal situation. There, after the court freed the subject child for adoption, a biological aunt sought guardianship or to adopt the child, who was in foster care. The Family Court Judge ordered a hearing or trial to consider the relative merits of adoption by either the aunt or the foster family. In reversing, the First Department expressly held that where a child has been freed in Family Court:



[T]he agency is the only entity having lawful care and custody of the child, and there is no individual in the position of parent or guardian who has the right to consent, or withhold consent, to an adoption of the child. Consequently, we conclude that adoption of the child in this instance must satisfy the provisions of sections 112 through 114 [of the Domestic Relations Law], covering authorized agency adoptions, and that the framework for private placements adoptions is not applicable here (see Matter of Brendan N. [Arthur N.], 79 AD3d 1175, 912 NYS2d 706 [3d Dept 2010], [11] lv denied 16 NY3d 735, 942 NE2d 310, 917 NYS2d 99 [2011] [grandparents' petition for private placement adoption was properly dismissed as defective since the child was in the custody of an authorized agency]).



Indeed, even if we agreed with the aunt that the statutory framework for private placement adoptions may be applicable here, the consent provisions of Domestic Relations Law § 111 would still control; the statutory provisions concerning both agency adoptions and private placement adoptions explicitly recognize the applicability of the consent provisions of section 111 (see Domestic Relations Law §§ 112 [2] [c]; 115 [3]).



Id. at 206. Although the facts in the instant matter are somewhat different, in that the P.'s parented Davon for almost three years and have established an unquestioned bond with him, the First Department holding was clear and specific:



[I]n situations where an agency has been awarded care and custody of a child, that the agency's refusal to consent to an adoption petition leaves the court without the authority to entertain the petition.



Id. Accordingly, without the consent of Leake & Watts, this Court has no authority to even hold a hearing or trial to consider Davon' best interests with respect to the best or most appropriate adoptive home.



2. Guardianship. Likewise, the courts have held that foster parents may not file a custody or guardianship petition under these circumstances, because even if a child's best interests might warrant it, custody and/or guardianship are not proper permanency outcomes at this stage of a case. In Mary Liza J. v. Orange County Dep't of Social Servs., 198 AD2d 350 (2nd Dept. 1993), the Second Department ruled that grandparents could not seek custody of a child who had been freed for adoption in Family Court. In their reading of Social Services Law §384-b, "the granting of custody . . . would be inconsistent with the legislative purpose of securing a permanent home for the child." Mary Liza J., 198 AD2d at 352 (citing In re Michael B., 80 NY2d 299 (1992); other citations omitted). In Michael B., the Court of Appeals interpreted the relevant statutes to prohibit the removal of a child from foster care and into a direct placement or [*2]custody of a foster parent. They reasoned that any outcome other than those authorized under SSL §384-b is unauthorized and contravenes the statutory requirement of permanency:



[T]o permit removal of the [133] [71] child from foster care and an award of legal custody to the foster parents[] exacerbates the legal limbo status. The child is left without a placement looking to the establishment of a permanent parental relationship through adoption, or the prospect of subsequent review of foster care status with the possibility of adoption placement at that time [Social Services Law § 384-b [4]; Matter of Peter L., 59 NY2d 513, 519 (1983)] .



In re Michael B., 80 NY2d at 316-17. In that case, the parental rights had not yet been terminated. But while the Court of Appeals noted that the Social Services Law does permit a direct placement with a parent, relative, or other suitable people, they found that the statute did not contemplate this as applying to a foster parent. Id. Reading this in conjunction with Mary Liza J., it seems clear that at either stage of the proceedings, but certainly after a child has been freed for adoption, a guardianship petition by a former foster parent cannot lie. To permit mere guardianship or custody of a freed child, other than in a kinship guardianship situation — which is specifically authorized by statute — would leave him without "the establishment of a permanent parental relationship through adoption." Id. And, as noted in section 1, supra, the P.'s cannot adopt Davon without the consent of Leake & Watts.

Conclusion

Although I have not yet heard all of the facts and circumstances surrounding Davon's placement with the P.'s, nor surrounding his placement in the new foster home, the law is clear that since Davon's care and custody have been committed to the foster care agency, the foster care agency's consent is required for any adoption. And at this stage of the case, adoption is the only permanency option still available. Accordingly, the Guardianship petition filed by the P.'s is dismissed.

I note that under most circumstances, even the substantiated use of excessive corporal punishment in a disciplinary situation, particularly against a different child, would not result in permanently removing a subject child from a parent's or guardian's care. It is my sincere hope that the agency will continue to examine, quickly and carefully, the facts of this situation as well as Davon's ultimate best interests before fully giving up on the P.'s as a possible adoptive family. It appears that the P.'s have taken excellent care of Davon for almost his entire life, and subjecting him to a new family, further delays, and a lack of permanency may not serve him well.

In light of this, expanded visitation for the foster parents would not serve the child's best interests or the permanency goals available in this case, and the application is denied.


Dated:Bronx, NY

April 21, 2015

ENTERED:

___________________________

Robert Hettleman, J.F.C.