Opinion
V 10651/08.
Decided August 12, 2009.
Two petitions are before the Court seeking custody/visitation pursuant to the Family Court Act (FCA) § 651(b) and Domestic Relations Law (DRL) § 72. On December 5, 2008, Kareem W., (birth father), filed a petition, V 10651/08, seeking custody of and/or visitation with the child Seasia D., (D.O.B. 04/01/2004). On December 5, 2008, Karen S., mother of Kareem W., filed a petition, V 10652/08, seeking custody of and/or visitation with the child, Seasia D. For reasons set forth below, the Court grants the motion filed by the respondents, Mr. and Mrs. Anonymous, and dismisses each of these petitions.
Stephen M. Hudspeth, Attorney for Petitioners Kareem W. and Karen S.
Deana Balahtsis, Attorney for the Respondents, Mr. and Mrs. Anonymous
Toba Beth Stutz, Attorney for the Child Seasia D.
On April 3, 2004, the child, Seasia D., was validly surrendered by her birth mother to Family Focus Adoption Services, Inc., for the purposes of adoption (see Social Services Law [SSL] § 384). On December 3, 2004, the pre-adoptive parents, the respondents, Mr. and Mrs. Anonymous, filed a petition for adoption of Seasia D. in Queens County Family Court (A 17771/ 04). On June 30, 2006, the Queens County Family Court dismissed the adoption petition, finding that the birth father's consent to the adoption was necessary, and the birth mother's surrender of the child was invalid. That decision was upheld by the Appellate Division, Second Department, Matter of Seasia D. , 46 AD3d 878, 848 NYS2d 361 (2d Dept 2007).
On June 3, 2008, the New York State Court of Appeals reversed the decision of the Queens County Family Court, ruling that Kareem W. was a "notice" father, not a "consent" father, with limited legal rights, and that the birth mother's surrender of the child was valid ( Matter of Seasia D. , 10 NY3d 879, rearg denied 11 NY3d 752, cert denied 555 US ___, 129 S Ct 629 [No. 08-296, 2008 Term]). The Court of Appeals reinstated the adoption petition, remitting the matter to the Queens Family Court for further proceedings. The petitioner, Kareem W., filed for certiorari in the United States Supreme Court requesting the reversal of the decision of the New York State Court of Appeals. His writ of certiorari was denied on December 1, 2008.
The provisions of DRL § 111-a afforded Kareem W. the right to notice of the adoption proceeding and an opportunity to be heard as to the best interests of the child. On December 22, 2008, this Court held a hearing pursuant to DRL § 111-a, in which Kareem W. testified, called his mother, Karen S. as a witness, and was provided the opportunity to present evidence relevant to the best interests of the child. Counsel for Kareem W. submitted two briefs on his behalf on December 22, 2008 and January 3, 2009. At that time, the Court held in abeyance a decision on the instant custody/visitation petitions, V 10651/08 and V 10652/08.
By Decision dated February 2, 2009, this Court determined that adoption of Seasia D. by the respondents, Mr. and Mrs. Anonymous, was in the best interests of the child. In making that determination, this Court carefully considered the testimony of the birth father, Kareem W. and his mother, Karen S., the documentary evidence submitted by the pre-adoptive parents in the adoption proceeding, and the two briefs submitted by counsel for Kareem W. In spite of numerous attempts by his counsel to focus him on the "best interests" of Seasia D., Kareem W. barely acknowledged the child's interests as separate from his own and never addressed them. At no point in the December 22, 2008 hearing did Kareem W. focus on the fact that Seasia D. has been with the pre-adoptive parents since birth, almost five years. He never discussed the impact on her if she were to be removed from the only home she has ever known, one in which she is clearly loved and nurtured. Nor did he address the fact that she has had no contact with him for more than two years, and had seen him only a limited number of times prior to that, and only under the supervision of a mental health professional and in the presence of her pre-adoptive mother. Kareem W. testified that he had visited with Seasia D. about "50 percent" of the time during the two to three-year period that the court ordered supervised visitation at no cost to him. After the court ordered that Kareem W. pay the supervisor's fees, he did not visit at all. Further, Kareem W. exhibited no sensitivity to or understanding of Seasia D., nor did he ever discuss or indicate any interest in her needs, her strengths and weaknesses, her personality or her life. He did not state what inquiries he had made, if any, as to her emotional and intellectual development. He never addressed his interest in or his ability to meet Seasia D.'s physical, emotional and psychological needs, nor did he state any efforts he would make to do so.
Kareem W. called his mother, Karen S., as a witness to testify on his behalf. In her testimony on December 22, 2008, Karen S. stated that she had joined Kareem W. during supervised visitation with Seasia on only three occasions some time before 2007, and that she had never visited Seasia on her own and had not seen the child at all since 2007. She testified that she believed that it was unlikely that Seasia would recognize her or know who she was. Karen S. did not state that she sent any cards, letters, gifts, to the child, or made any independent effort to have contact with or reach out to Seasia. Karen S. had little to add other than to say that it was "unfair" to her son if the court proceeded with the adoption. The court found that the pre-adoptive parents, Mr. and Mrs. Anonymous, created a loving, stimulating and supportive environment and encouraged Seasia to grow, learn, and develop. She has been cherished and loved by Mr. and Mrs. Anonymous, as well as their extended family. They have protected Seasia from the stresses of four years of litigation, and responded to and cared for her with great sensitivity, thoughtfulness and caring. A final order of adoption of Seasia by Mr. and Mrs. Anonymous was issued by this Court on February 9, 2009.
On February 12, 2009, counsel for the petitioners, Kareem W. and Karen S., submitted a brief in support of their petitions for custody/visitation, V 10651/08 and V 10652/08. On February 13, 2009, counsel for the petitioners modified the custody/visitation petitions to name the adoptive parents, Mr. and Mrs. Anonymous, as respondents. On April 7, 2009, the attorney for the respondent adoptive parents submitted a motion to dismiss the custody/visitation petitions, asserting that the petitioners lacked standing to pursue these petitions. Counsel for the petitioners then submitted a brief dated April 8, 2009, to supplement his brief dated February 12, 2009. On May 1, 2009, counsel for the petitioners submitted a reply affirmation in opposition to the respondent adoptive parents' motion to dismiss the petitions, and requested that the court hold a hearing.
The same counsel who represented Kareem W. at the hearing pursuant to DRL § 111-a also represents Kareem W. and Karen S. in their custody/visitation petitions.
On May 28, 2009, the attorney for the child filed a reply affirmation in opposition to respondents' motion to dismiss, and in support of the petitions filed by Kareem W. and Karen S. She stated that this Court should hold a "best interest hearing and grant visitation." The child's attorney stated that she supported visitation between the adopted child, Seasia D., and Kareem W. because he attended some of the court-ordered supervised visits with the child between 2004 and 2007. The child's attorney endorsed the initiation of visits between Karen S. and the child because of Kareem W.'s "said relationship" and, therefore, somehow imputed a relationship between Karen S. and the child. The child's attorney stated, "As a result of the visitation between the subject child and the birth father for over three years, it is the position of the Lawyer for the Child, that said relationship has been established between the subject child and the birth father and through him, the paternal birth grandmother" (Reply Affirmation of Child's Attorney ¶ 7). This statement has no basis in fact or law and was specifically contradicted by Karen S. in her testimony on December 22, 2008, when she stated that Seasia would not recognize her and would not know who she was. The child's attorney also presented a general argument in support of the proposed visitation: "children of adopted parents, eventually, according to all reports in recent years, both published in newspapers, magazines and broadcast on television stations, seek out their natural parents when they reach teenage or young adult years" ( Id. ¶ 2). However, Seasia is five years old and her individual interest in or how she would benefit from visitation with Karen S. or Kareem W. is neither identified nor explored by the child's attorney. Nor does the attorney address the important threshold issues of standing in relation to each petitioner.
The Court has carefully examined the record before it and the decision of the New York State Court of Appeals in this matter. Further, the Court has carefully considered the testimony by Kareem W. and Karen S. in the hearing held on December 22, 2008, pursuant to DRL § 111-a, as well as the two briefs submitted in that proceeding by counsel for Kareem W. and Karen S. dated December 22, 2008, and January 3, 2009. In addition, in this proceeding, the Court has carefully weighed the two briefs dated February 12, 2009, and April 8, 2009, which counsel for the petitioners submitted in support of the petitions for custody/visitation; the motion to dismiss petitioners' custody/visitation petitions submitted by counsel for the respondent adoptive parents, Mr. and Mrs. Anonymous, on April 7, 2009; the affirmation in support of petitioners' custody/visitation petitions and in opposition to respondents' motion to dismiss, submitted by counsel for the petitioners on May 1, 2009; and the affirmation in opposition to respondents' motion to dismiss and in support of petitioners' custody/visitation petitions submitted by the child's attorney on May 28, 2009. Thus, the record before this Court is comprehensive and well-developed.
It is well-established that where "the information before the court enables it to undertake a comprehensive independent review' of a custody or visitation issue," an evidentiary hearing is not required ( Matter of Lynda D. v Stacy C. , 37 AD3d 1151, 830 NYS2d 881, 882 [4th Dept 2007] quoting Matter of Folsom v Folsom , 12 AD3d 962, 963, 784 NYS2d 913 [4th Dept 2004] [internal quotation marks omitted]; see Matter of Marks v Cascio , 24 AD3d 556, 808 NYS2d 261 [2d Dept 2005]; Horowitz v Kelly, 300 AD2d 659, 751 NYS2d 785 [2d Dept 2002]). Further, the court may "decide the matter upon pleadings, papers, and admissions to the extent that no triable issues of fact are raised'" ( Karr v Black , 55 AD3d 82, 86, 863 NYS2d 26, 29 [1st Dept 2008] quoting Civil Practice Law and Rules § 409 [b]; citing Matter of Port of NY Auth. [ 62 Cortland St. Realty Co.], 18 NY2d 250, 255, 273 NYS2d 337, 219 NE2d 797 [1st Dept 1966], cert. denied sub nom. McInnes v Port of NY Auth., 385 US 1006, 87 S Ct 712, 17 L Ed2d 544).
This Court finds that the record before it has ample information to determine the threshold questions whether either petitioner can establish "extraordinary circumstances" as to the issue of custody, and whether either petitioner has "standing" to pursue his/her petition for visitation. The record contains information that is more than sufficient to afford a full, independent and comprehensive review of all relevant facts and circumstances as to those issues. Accordingly, this Court renders decisions on the instant custody/visitation petitions, V 10651/08 and V 10652/08, filed by Kareem W. and Karen S. respectively, based on the record before it, and grants respondent adoptive parents' motion to dismiss both petitions based on lack of standing.
Petition V 10651/08 filed by Kareem W.
The petition filed by Kareem W. asks this Court to award him custody of and/or visitation with Seasia, whose adoption is now final. This Court finds that Kareem W. lacks standing to pursue the custody/visitation petition V 10651/08. Upon the finalization of Seasia's adoption, Kareem W.'s parental rights ceased, and he has no legal rights to the custody of or visitation with the adopted child, Seasia. DRL § 117 (1) (a) delineates the effect of the adoption:
After the making of an order of adoption the birth parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or or succession, except as hereinafter stated.
Adoption "is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child's religious, educational, emotional, or physical development'" ( Matter of Ricky Ralph M., 56 NY2d 77, 80 quoting Lassiter v Department of Social Servs., 452 US 18, 39 [Blackmun, J. dissenting], citing DRL § 117). In short, the adoption order of February 9, 2009 effected a termination of all of Kareem W.'s parental rights. Seasia is "in substance . . . a natural child of the adoptive parents" ( Matter of Pierro, 173 Misc 123, 124, 17 NYS2d 233, 234 [Sur Ct, Kings County 1940] [citations omitted]). Kareem W. is a legal stranger to the adopted child.
Nor does Kareem W. have standing to file for custody as a non-parent, third party pursuant to the "extraordinary circumstances" standard established by New York State's Court of Appeals in the Matter of Bennett v Jeffreys, 40 NY2d 543, 544 (1976). As stated by the Family Court in the Matter of Tiffany H., 171 Misc 2d 786, 656 NYS2d 792 (Fam Ct, Kings County 1996), the application of the Bennett v Jeffreys standards in the instant case would contravene the intent and mandates of New York's adoption and custody laws:
Were the biological parents whose parental rights have been terminated accorded standing to file a custody petition for an adopted child and thereby overcome the legal consequences attached to the court's findings under Family Court Act article 10, Social Services Law § 384-b and Domestic Relations Law § 114 by a showing of extraordinary circumstances', the finality of adoptions would be jeopardized forever . . . Second, this practice would nullify the strongly worded legislative intent behind Domestic Relations Law § 117 (1) (a), which is to leave the biological parent, after an adoption, with no rights. Third, Bennett ( supra) grants standing to a class of third parties (grandparents, aunts, uncles, godmothers and family friends) whose sincere motive is to provide a home for a child and who have not been in court to litigate their custodial interest previously. They are not the fictional "third party" to the child which the petitioner is. Fourth, if successful, this petitioner would regain the very same rights she was previously divested of . . . And finally, custody does not create a permanent parental relationship and does not give the child the security of a permanent home [emphasis in original]( Id. at 793-94 [citations omitted]).
Here, Kareem W. seeks an award of custody of Seasia or, as an alternative, court-ordered "liberal and unsupervised" visitation with the child because "there is no reason why the contacts with the birth family should be ended here" (Petitioners' Brief at 5). However, this Court finds many compelling reasons to deny the relief requested in petition V 10651/08. The Court's grant of Kareem W.'s request would violate public policy and contravene judicial precedent and the principles of "preserving the finality of an adoption, protecting the adoptive relationship from uncertainty and disruption, and promoting stability and permanence in the adoptive relationship" ( Matter of Tiffany H., 171 Misc 2d at 791, citing Matter of Robert O. v Russell K., 80 NY2d 254; Matter of Sarah K., 66 NY2d 223, 233-234, cert denied sub nom. Kosher v Stamatis, 475 US 1108). As stated by New York's Court of Appeals, "[a]lthough adoptive parents are free, at their election, to permit contacts between the adopted child and the child's biological parent, to judicially require such contacts arguably may be seen as threatening the integrity of the adoptive family unit" ( Matter of Gregory B., 74 NY2d 77, 91, 544 NYS2d 535, 542).
Finally, Kareem W. asserts that DRL § 72, which authorizes a grandparent or grandparents to seek custody/visitation rights with a grandchild, also applies to him, as "a birth father . . . whose parental rights have been terminated . . ." (Reply Affirmation of Petitioners' Attorney ¶ 6). Kareem W.'s argument that DRL § 72 applies to him as a father whose rights are terminated is a spurious claim at best. DRL § 72 states plainly that it applies to "certain infant grandchildren" and "a grandparent or grandparents." The sole purpose of DRL § 72 at the time of its enactment in 1966 was to give grandparents, whose child was deceased, the right to be heard in court regarding visitation with the children of their deceased child. The statute was expanded to include other "grandparents" but it has never been construed to include "parents."
DRL § 72 is construed strictly, and its provisions apply only to legally recognized grandparents (see Matter of Jordan , 60 AD3d 764, 875 NYS2d 188 [2d Dept 2009] overturning family court's finding that a putative grandmother had standing under DRL § 72, and holding that the grandmother was not entitled to be heard because she failed to "establish that she is the child's biological grandparent"; Matter of Gross v Siegman, 226 AD2d 724, 642 NYS2d 44 [2d Dept 1996] holding that DRL § 72 did not apply to the petitioner because he was not "the biological grandfather" and he was not "a legal grandparent by virtue of adoption"; Matter of Rosella G. v Eileen B., 277 AD2d 379, 715 NYS2d 756 [2d Dept 2000] finding that the DRL § 72 did not apply to the petitioner, a great-grandparent of the child). "Under New York statutory law, the only people who have the right to seek visitation are parents [Domestic Relations Law §§ 70, 240], grandparents [Domestic Relations Law §§ 72, 240], and siblings related by whole or half-blood [Domestic Relations Law § 71]" ( Perry-Rogers v Fasano, 276 AD2d 67, 74, 715 NYS2d 19, 24 [1st Dept 2000], lv denied 96 NY2d 712 [2001]; see also FCA Article 6).
Moreover, Kareem W. is not a father "whose parental rights have been terminated." The Court of Appeals made clear in its decision in this case that Kareem W. is a "notice father," who has the limited right to notice of the adoption proceeding for the "sole purpose" of presenting "evidence to the court relevant to the best interests of the child" (DRL § 111-a). Kareem W. is not a "consent father" with the legal right to withhold consent to Seasia's adoption (DRL § 111). Moreover, Kareem W.'s limited legal rights as a "notice father" were satisfied at the December 22, 2008 hearing before this Court pursuant to DRL § 111-a. Even if Kareem W. qualified as a consent father whose parental rights were terminated involuntarily, New York's appellate courts have ruled uniformly that the family courts do not have authority to order contact between the adopted child and a birth parent whose rights have been terminated (see, Matter of Kevin W. , 38 AD3d 672, 832 NYS2d 82 [2d Dept 2007] lv dismissed 9 NY3d 803, 840 NYS2d 762 Matter of William W. , 23 AD3d 735, 803 NYS2d 722 [3d Dept 2005]; Matter of Livingston County Dept. of Social Servs. v Tracy T. , 16 AD3d 1133, 792 NYS2d 273 [4th Dept 2005]; Matter of Alexis S. D., 7 AD3d 359, 776 NYS2d 287 [1st Dept 2004] citing Matter of April S., 307 AD2d 204, 762 NYS2d 380 [1st Dept 2003], rearg denied 307 AD2d 204 [1st Dept 2003], lv denied 1 NY3d 504).
In the Matter of Corinthian Marie S., 297 AD2d 382, 746 NYS2d 606 (2d Dept 2002), the appellate court considered a family court order permitting postadoption contacts between a mentally retarded parent and her adopted children. The Second Department affirmed the family court's decision, which allowed limited contact, two supervised visits per year and an exchange of correspondence on holidays and the children's birthdays. The Second Department found that the adoptive parents and the child's attorney had agreed to such contacts prior to the termination of the mother's parental rights. These facts are not applicable here.
The Fourth Department has addressed the issue of post termination contact in the Matter of Kahlil S., 35 AD3d 1164, 830 NY3d 625 (4th Dept 2006), concluding that, "in the event that parental rights are terminated after a finding that the parent is unable by reason of mental illness or mental retardation to provide proper and adequate care for his or her child or after a finding of permanent neglect (see Social Services Law § 384-b [4] [c], [d]), Family Court may, in those cases in which the court deems it appropriate, exercise its discretion in determining whether some form of post termination contact with the biological parent is in the best interests of the child." Kareem W. was held to be a "notice" father only and these circumstances do not apply to him. Further, the First and Second Departments have not made similar rulings.
New York State's legislature has created one exception to this general bar against court-ordered postadoption contact in termination cases; however, it applies only to parents who voluntarily have surrendered their rights to the child. Only these parents may "reserve the right to postadoption visitation and communication" ( Matter of Rebecca O. and Mary O., 46 AD3d 687, 688, 847 NYS2d 610, 611 [2d Dept 2007] citing Matter of Gerald T., 211 AD2d 17, 20, 625 NYS2d 509 [2d Dept 1995]; see SSL §§ 383-c [b] and 384 [2] [b]). In the instant case, the birth mother of Seasia was the consent parent with full legal rights, who surrendered the child for adoption voluntarily. Kareem W.'s reliance now on DRL § 72 in support of the instant custody/ visitation petition is entirely without merit.
In view of the foregoing, this Court finds that the adoption of Seasia has relieved Kareem W. of all parental rights and responsibilities ( Matter of the Adoption of Baby Girl R., 105 AD2d 575, 576-577, 481 NYS2d 516, 517 [3d Dept 1984], lv denied 64 NY2d 603). Kareem W. is a legal stranger to the adopted child, and, as such, he lacks standing to pursue the instant petition, V 10651/08, for custody and/or visitation. Accordingly, the Court grants the motion of the respondent adoptive parents, and dismisses the custody/visitation petition, V 10651/08, filed by Kareem W., based on his failure to establish standing to pursue his petition.
Petition V 10652/08 filed by Karen S.Karen S. asserts that she has separate standing to seek custody of or visitation with the child Seasia. However, Karen S. has failed to establish "extraordinary circumstances" to pursue a custody petition pursuant to FCA Article 6 or DRL § 72 (2). In addition, she has failed to establish threshold circumstances, "which equity would see fit to intervene" for purposes of visitation. Therefore, she lacks standing to pursue visitation rights pursuant to DRL § 72 (1) and FCA § 651(b). Accordingly, this Court dismisses the custody/visitation petition V 10652/08 filed by Karen S.
Karen S. lacks standing to obtain custody of the child pursuant to FCA Article 6 or DRL § 72 (2).
Karen S. urges this Court to apply the standard of the "best interests of the child" and award her custody of Seasia pursuant to the provisions of DRL § 72 or FCA Article 6.
Pursuant to Article 6, a grandparent has no "pre-emptive right" to custody of the child ( Matter of Peter L., 59 NY2d 513, 519). Neither does she have a special statutory right to a "best interests" hearing. The grandparent first must prove the existence of "extraordinary circumstances" ( Matter of Bennett v Jeffreys, 40 NY2d 543, 546, 387 NYS2d 821) — the relinquishment of rights by the legal parent, here the adoptive parents, "due to surrender, abandonment, persistent neglect, unfitness, or similar extraordinary circumstances" ( Matter of Hyde v King , 47 AD3d 813, 849 NYS2d 650 [2d Dept 2008] [citations omitted]). Only where an "extraordinary circumstance" has been proven, is the right to a hearing on the "best interests of the child" triggered. The legal parent "has the superior right to custody that cannot be denied" in the absence of "extraordinary circumstances" ( id.).
In amendments to DRL § 72 that took effect on January 6, 2004, the legislature codified one type of "extraordinary circumstance" the Court of Appeals identified in Bennett v Jeffreys. The amendment to DRL § 72 recognized an "extended disruption of custody," defined as, but not limited to, a period of "at least twenty-four continuous months," as a basis for a grandparent to seek custody of a child (DRL § 72). Where the child has "resided in the household of the petitioner grandparent" under circumstances in which the legal parent has "voluntarily relinquished care and control of the child," the statute provides that the standard of "extraordinary circumstances" has been met and the court may immediately proceed to a "best interests" hearing. Thus, in the 2004 amendments to DRL § 72, the legislature merely recognized that an "extended disruption of custody" between the legal parent and the child is an "extraordinary circumstance." The amendments did not create special statutory custody rights for grandparents ( Matter of Tolbert v Scott , 15 AD3d 493, 495, 790 NYS2d 495, 498 [2d Dept 2005]).
In Tolbert v Scott, the appellate court reaffirmed that the petitioning grandparent "bears the burden of proving extraordinary circumstances," and, in the absence of extraordinary circumstances, the court's inquiry ends, and a "best interests" determination is not triggered. The provisions of DRL § 72 (2) are not applicable in the instant case, in that Seasia has never resided with Karen S., nor has Karen S. ever provided any caretaking whatsoever for this child. Further, Karen S. has not pled, alleged, testified, demonstrated or made any showing that would establish "extraordinary circumstances" as to the care provided by the adoptive parents to Seasia or their relationship with the child. Accordingly, Karen S. lacks standing to be heard on the best interests of the child in relation to a custody award pursuant to DRL § 72 or FCA Article 6.
Moreover, at the time that Karen S. filed the instant custody/visitation petition in 2008, the consent parent, the birth mother, had executed a valid surrender of the child for the purpose of adoption pursuant to SSL § 384, and the child had been with the then pre-adoptive (now adoptive) parents since birth in 2004. The statutory framework of SSL § 384 governs. The appellate courts have held that, "Grandparents are not without statutory rights with respect to their grandchildren (e.g. Domestic Relations Law §§ 72, 240; People ex rel. Sibley v Sheppard, 54 NY2d 320), but those rights do not entitle a grandparent to override the right of the natural parent to surrender the child to a public agency and to confer on it the right to consent to the adoption of the child" ( Matter of Peter L., 59 NY2d at 520; see Matter of Pryor v Lindsay, 60 AD3d 859, 876 NYS2d 79 [2d Dept 2009]); Matter of Linda S. v Krishnia S. , 50 AD3d 805, 856 NYS2d 174 [2d Dept 2008]; Matter of Rita T. , 49 AD3d 327, 854 NYS2d 344 [1st Dept 2008] ; Matter of Ella J. v Iva J. , 4 AD3d 527, 771 NYS2d 719 [2d Dept 2004]; Matter of Violetta K. v Mary K., 306 AD2d 480, 761 NYS2d 514 [2d Dept 2003].
In the seminal case, the Matter of Peter L., the birth mother signed a surrender agreement pursuant to SSL § 384 committing the child to the care and guardianship of the Commissioner of Social Services for the purpose of adoption. The paternal grandmother sought custody rights only after learning that the agency had identified an adoptive home for the child. The grand-mother asserted that she had "a pre-emptive right to custody of the child surpassing that of strangers who might be selected by the agency as suitable adoptive parents" ( Matter of Peter L., 59 NY2d at 519). The Court of Appeals found no "statutory or judicial precedent in this jurisdiction offered for the proposition that a fit member of an extended family takes precedence over adoptive parents selected by an agency to which has been transferred the natural parent's power to consent to an adoption" ( Id. at 520). In short, upon the birth mother's surrender of the child Seasia, "adoption became the sole and exclusive means to gain care and custody of the child" ( Matter of Genoria SS. v Christina TT., 233 AD2d 827, 650 NYS2d 830 [3d Dept 1996]) lv denied 89 NY2d 811). The consent parent's valid surrender of the child for the purpose of adoption requires that the custody aspect of the petition filed by Karen S. be dismissed ( Matter of Moorhead v Coss , 17 AD3d 725 , 792 NYS2d 709 [3d Dept 2005] citing Matter of Peter L., 59 NY2d 513, 516; Matter of Herbert PP. v Chenango County Dept. of Social Servs., 299 AD2d 780, 781, 751 NYS2d 96 [3d Dept 2002]).
Karen S. has failed to establish circumstances that equity sees fit to confer standing to pursue visitation rights under DRL § 72 (1).
Karen S. requests that this Court grant her visitation rights with the adopted child, Seasia, pursuant to the court's equitable authority under DRL § 72 (1), which affords grandparents the right to bring a special proceeding or habeas corpus to obtain visitation rights in respect to certain infant grandchildren. In regard to the issue of statutory rights to grandparent visitation, the United States Supreme Court has held that "the decision whether . . . an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision [. . .] becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination" ( Troxel v Granville, 530 US 57, 71, 120 S Ct 2054). Recently, New York's Court of Appeals has held that central to the interpretation of DRL § 72 is "the strong presumption that the parent's wishes represent the child's best interests . . . this presumption creates a high hurdle" for petitioning grandparents to overcome ( Matter of E. S. v P.D., 8 NY3d 150, 160, 831 NYS2d 96, 106). In short, "the courts should not lightly intrude on the family relationship against a fit parent's wishes" ( Id. at 157).
The legislative purpose of DRL § 72, as enacted in 1966, was narrow. The scope of the law was limited to assisting only those grandparents "who have lost their only child [and] have been unable to apply to the Courts for leave to be granted the right to visit the children of their deceased child" ( Matter of Scranton v Hutter, 40 AD2d 296, 297, 339 NYS2d 708, 709 [4th Dept 1973] quoting the "memorandum by Assemblyman Noah Goldstein in support of 1966 Assembly Intro No. 264, Print No. 7112, the bill enacted as chapter 631 of the laws of 1966, referred to in the Consolidated Laws as section 72 of the Domestic Relations Law"). In 1975, the legislature amended DRL § 72 "to allow standing not only where a parent had died, but also where circumstances show that conditions exist which equity would see fit to intervene'" ( Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181, 573 NYS2d 36 quoting DRL § 72).
To determine whether "equity would see fit to intervene" to permit court-ordered visitation by a grandparent against a parent's wishes, the Court of Appeals has identified two "essential" equities that the court must weigh: "the nature and extent of the grandparent-grandchild relationship" and "the nature and basis of the parents' objection to visitation" ( id.). DRL § 72 does not create any "absolute or automatic" rights to visitation by grandparents or presumptions in favor of grandparent visitation. On the contrary, the Court of Appeals holds that DRL § 72 creates a "strong presumption" on behalf of the parent's wishes, and merely affords a "procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild" ( Matter of Wilson v McGlinchey, 2 NY3d 375, 380, 779 NYS2d 159). Further, the Court of Appeals has held that grandparents must do more than assert their biological ties or their desire for a relationship with the child:
It is not sufficient that the grandparents allege love and affection for their grandchild. They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it is one deserving the court's intervention.
( Matter of Emanuel S., 78 NY2d at 182).
Procedurally, this Court "must make a threshold determination that the grandparent has established the right to be heard' . . . by demonstrating the existence of circumstances in which equity would see fit to intervene' . . . Only after standing has been established is it necessary or permissible to determine if visitation is in the best interest of the grandchild'" ( Karr v Black, 55 AD3d at 86, quoting Matter of Emanuel S., 78 NY2d at 181).
In applying these principles to the present case, Karen S., by her own testimony on December 22, 2008, at the hearing held pursuant to DRL § 111-a, acknowledged that she hadminimal contact with Seasia, had no relationship with the child, and had done little to establish a grandparent-grandchild relationship. In January 2004, prior to Seasia's birth, Karen S. and her family relocated from Staten Island, New York, to the State of Maryland. In her testimony before the court on December 22, 2008, Karen S. stated that between 2004-2007 she only visited Seasia with her son on three occasions, during the period of time in which fees for court-ordered supervised visitation were not charged to Kareem W., and neither she nor her son visited at all after her son was required to assume the fees. Karen S. testified that, other than the three times she visited Seasia with her son, under the supervision of a mental health professional and in the presence of the adoptive mother, she has not seen the child since her birth in 2004. She testified that Seasia would not recognize her or know who she was.
The appellate courts have found that the "occasional visit" and an "extended period of time" without visits or other types of contact, as evidenced here, do not establish equitable circumstances to confer standing upon the grandparent to pursue court-ordered visitation ( Matter of Herbert PP., 299 AD2d at 782). The minimal contacts made here by Karen S. do not show a "sufficient effort to establish a relationship with the child" that is a "meaningful" one ( Matter of Weis v Rivera , 29 AD3d 812, 813, 814 NYS2d 743 [2d Dept 2006] citing Matter of Emanuel S. v Joseph E., 78 NY2d 178, 573 NYS2d 36, supra; Matter of Ziarno v Ziarno, 285 AD2d 793, 795, 726 NYS2d 820, 822 [3d Dept 2001] holding that 18 to 20 contacts made by a grandparent during a five-year period is not "evidence that petitioner made any genuine effort to establish a close, nurturing relationship with the child from the time of his birth"; Matter of Seymour S. v Glen S., 189 AD2d 765, 592 NYS2d 410 [2d Dept 1993] grandfather's "last contact with his granddaughter when she was two weeks old" did not establish equitable circumstances warranting the court's intervention; Matter of La Porte v Rivers, 144 AD2d 861, 862, 534 NYS2d 586 [3d Dept 1988] upholding the family court's denial of visitation where the petitioning grandparent last saw her grandchildren two years before the hearing date, finding "no meaningful relationship and only infrequent contact").
Finally, even if barriers to the relationship between the grandparent and the grandchild are posed, as is claimed here, the appellate courts expect the grandparent to initiate "reasonable efforts" to establish or foster a relationship, for example, by sending cards or letters or gifts to the child ( Matter of Luma v Kawalchuk, 240 AD2d 896, 897, 658 NYS2d 744 [3d Dept 1997] finding a lack of equitable circumstances where grandparents "did not send any greeting cards to the children nor did they send any presents" nor did they initiate contact or visit the children).
Moreover, where contact is infrequent or occasional, as it is here, the appellate courts have held that only a "superficial" relationship is formed, and in such circumstances parents "have the right to choose with whom their children should associate," and that "Domestic Relations Law § 72 does not give the petitioners the right to interfere with that choice" ( Matter of Coulter v Barber, 214 AD2d 195, 197, 632 NYS2d 270, 271 [3d Dept 1995] citing Matter of Alison D. v Virginia M., 77 NY2d 651).
In the instant case, Karen S., based on her oral statements, does not have a "meaningful" prior existing relationship with the child nor did she make sufficient attempts to foster such a relationship, and, therefore, she has failed to meet her burden of establishing the existence of equitable circumstances that would confer standing, and permit her to pursue the visitation petition, V 10652/08.
The proposed visitation by Karen S. hinders the integrity of the adoptive family unit.
The other "essential" equity that this Court must weigh in determining whether Karen S. has established circumstances sufficient to pursue court-ordered visitation with the adopted child is the "nature and basis of the parents' objection to visitation" ( Matter of Emanuel S., 78 NY2d at 182). The petitioner Karen S. relies heavily on the Court of Appeals decision in People ex rel. Sibley v Sheppard, 54 NY2d 320. In Sibley, the child and his mother resided in the maternal grandmother's household from the child's birth in December 1968 until early August 1970. A neglect proceeding was filed against the mother in October 1969. The child was removed from the maternal grandmother's home shortly after his mother's death in 1970 and placed in a non-kinship foster home where he remained for about one year, and the maternal grandmother and her family visited him regularly. In 1971, the child was moved to the home of the paternal grandparents who then adopted him in 1972. The maternal grandmother and her family visited him frequently until the finalization of the adoption. Upon the adoption, the paternal grandparents obstructed the maternal grandmother's contact with the child. However, between 1972 and 1978, the maternal grandmother and relatives consistently made attempts to visit the child but saw him infrequently.
The Court of Appeals also notes that the child's father was deceased but a date of death is not provided.
The Court of Appeals affirmed the lower court rulings, and granted the maternal grand-mother's petition for postadoption visitation over the objection of the adoptive parents/paternal grandparents, which met the "certain or limited" statutory requirements that "one or both parents have died . . . [and] a relationship between the grandparents and grandchild has been established" ( People ex rel. Sibley v Sheppard, 54 NY2d at 327). Due to the existing family relationship, the Court of Appeals found that continuation of visits by the maternal grandmother posed no "embarrassment to natural parents, conflicts between the authority of the natural and adoptive parents, or invasion of the natural or adoptive parents' privacy" ( Id. at 328). The Court concluded that what was "[m]ost telling" in Sibley was that "respondents [adoptive parents/grandparents] admit that it would be in Willie's best interest to continue visiting" ( id). Within these unique circumstances, the Court of Appeals held that postadoption visits between the grandchild and the maternal grandmother should continue, in view of the equitable circumstances — the meaningful, decade long relationship between the grandmother and the grandchild, the lack of hindrance to the integrity and development of the adoptive family unit, and the acknowledgment by the adoptive parents/grandparents that the grandmother's visits were in the best interests of the child. Clearly, these facts are distinctly different from those presented to this Court.
Karen S. also contends that the Second Department's holding in Matter of Ann M.C. v Orange County Department of Social Servs., 250 AD2d 190, 682 NYS2d 62 [2d Dept 1998] lv dismissed 93 NY2d 957, requires that this Court award her visitation rights. In Ann M.C., the petitioner grandmother's parental rights were terminated when her daughter was about nine years old but the mother and daughter continued to visit and "enjoy a close relationship" ( Id. at 191-192). When the teenage daughter's child was born, child protective services removed the infant from the daughter's care. The grandmother immediately filed a petition seeking visitation rights with the infant, who was in temporary foster care in the custody of the Commissioner of Social Services.
Karen S. also cites Matter of Weis v Rivera , 29 AD3d 812 , 814 NYS2d 743 (2d Dept 2006), supra, in support of her claim that she has standing in this matter. In that case, the appellate court found that the grandparent had a "longstanding loving relationship with the subject child before the dispute that gave rise to this litigation" and upheld the family court's grant of standing, and its finding that visitation was in the best interests of the child. In the instant case, Karen S. has not in any way demonstrated that she had or tried to establish a "longstanding loving relationship" with the child.
The Family Court dismissed the grandmother's petition and "concluded as a matter of law the termination of the petitioner's parental rights vis-a-vis Elizabeth [the daughter] also severed the petitioner's grandparental rights" ( Id. at 192). The Second Department ruled that the Family Court "erred as a matter of law in holding that termination of the petitioner's rights to her child ipso facto terminated her rights to seek visitation with her grandchild" ( Id. at 193). Moreover, in applying the equity test outlined in Emanuel S., the appellate court found "unusual circumstances" present, specifically, the grandmother engaged in immediate and ongoing attempts to see the infant, and her daughter fully supported the grandmother's attempts to initiate visits with the infant who was in the custody of the Commissioner of Social Services in temporary foster care [emphasis added]( Id. at 194 citing Matter of Luma v Kawalchuk, 240 AD2d 896, 658 NYS2d 744 [3d Dept 1997]; Matter of Coulter v Barber, 214 AD2d 195, 632 NYS2d 270 [3d Dept 1995]).
The instant case is clearly distinguishable and markedly different. Here, Karen S. has made little effort to establish a relationship with Seasia and she clearly did not "demonstrate a sufficient existing relationship with her grandchild[ren] despite opportunities to foster one" ( Matter of Ileana , 55 AD3d 424 , 866 NYS2d 65, 66 [1st Dept 2008], denying the grandparent's application for visitation and dismissing the petition with prejudice stating that the grandparent had "one visit shortly after the children were placed in foster care. Petitioner lacked any meaningful relationship with the children and conceded that they would likely not recognize her and would think of her as a stranger"). Most important, in the instant case, the child Seasia has been adopted, and is not in temporary foster care.
The adoptive parents object to the proposed visits because Karen S. failed to establish a relationship with the child and she is now a stranger to her. As stated in their attorney's affirmation, "It was the paternal grandmother's inaction that prevented her from forming a relationship with the subject child . . . the paternal grandmother is a stranger to the subject child" (Affirmation of Respondents' Attorney ¶ 9). The adoptive parents state that by "[a]llowing the paternal grandmother to now petition for visitation, when she did not take any steps to establish a relationship with the subject child for four years, would do nothing but hinder the adoptive parental relationship" ( Id. ¶ 10). The adoptive parents also cite the potential harm of visitation to the five year old child's well-being and stability, stating that "they have created a safe, stable, and healthy home for the child for the past five years. As far as the child is concerned, Respondents are the only parents she has known" ( Id. ¶ 14). Moreover, Seasia has involved and loving grandparents, the parents of her adoptive parents.
In the only reported case that has addressed issues similar to those before this Court, in which a grandmother sought court-ordered visitation with a child who was about to be adopted by non-family members, the grandmother had custody of the child's sibling; however, she had no prior relationship with the child. The Supreme Court, Special Term, New York County, held that each case must turn on its own facts; however," to encourage such a relationship [between a grandparent and grandchild] would hinder the adoptive relationship'" ( People ex rel. Wilder v Director, Spence-Chapin Servs. to Families and Children, 93 Misc 2d 617, 619, 403 NYS2d 454 [Sup Ct, Special Term, New York County 1978] quoting Matter of Geri v Fanto, 79 Misc 2d 947, 950, 361 NYS2d 984 [Fam Ct, Kings County 1974]).
This Court's Order of February 9, 2009, approving the adoption, was made pursuant to DRL § 114 (1), which requires that "the adoptive child shall thenceforth be regarded and treated in all respects as the child of the adoptive parents or parent." New York's adoption statutes protect the integrity of the adoptive family unit, the finality of the adoption, and the child's fundamental right to "continuity" in relationships. "Continuity of relationships is essential for a child's healthy development" (Joseph Goldstein, Albert J. Solnit, Sonja Goldstein, and the late Anna Freud, The Best Interests of the Child: The Least Detrimental Alternative, at 19 [The Free Press 1996]). Moreover in the case of a newly formed adoptive family, "The continuity guideline would require that adoption be as final, as permanent, and as unconditional as the child's placement by birth certificate . . . A child's need for continuity requires the state to recognize that a new family has been established the moment it has been determined who shall be the custodial parent . . . as free of state intervention as any other intact' family" ( Id. at 22, 32).
In the instant case, the objections of the adoptive parents are well-grounded. Initiation of visitation between the adopted child and Karen S., whom she does not know, would disrupt the adoptive family relationships, intrude inappropriately and unnecessarily on the integrity of the adoptive family, interrupt the child's opportunity to develop strong, psychological bonds within her adoptive family, and impair the adoptive parents' ability to nurture and maintain a close-knit family unit.
Moreover, the proposed visitation undermines the finality of the adoption — as the adoptive parents have stated, they are "the only parents" the child "has ever known." Finality in the adoption process is the cornerstone that promotes the well-being of the adopted child, the adoptive family, and society. As stated by the New York Court of Appeals:
The central importance of finality in the adoption process has been recognized by both the Legislature and the courts . . . there also must come a point where the matter is deemed irrevocably closed, so that the parties can go forward with their lives, secure in the certainty that their legal and familial status can no longer be disturbed. The importance of finality in the lives of the children involved in the adoption process is so obvious as to require little elaboration. One of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place. In addition to the stake of the adopted child, the adoptive family is unquestionably adversely affected by any lingering uncertainty about the permanence of adoption . . . Lastly, society has an independent interest in the finality of adoptions, since the adoptive relationship implicates many legal rights of the parties, including the right to inherit and the right to receive certain governmental benefits.
( Matter of Robert O. v Russell K., 80 NY2d at 269).
Accordingly, the standing requirements of DRL § 72 must be applied strictly, particularly in the context of an adoption by non-family members, where no grandparent-grandchild relationship exists, where the grandparent has failed to make attempts to foster a relationship, despite opportunities to do so, and where the adoptive parents object to the grandparent's proposed visitation as a serious hindrance to the integrity of their family unit and the finality of the child's adoption, and as detrimental to the best interests of the child.
To fail to apply New York's statutory requirements strictly, opens the door to needless and detrimental litigation. Such litigation clearly discourages adoption and places great stress on adoptive families. In the instant case, continuing involvement in protracted litigation, which in this case has extended throughout the entire life of this five year old child, poses imminent risk to the child's right to a stable, permanent family life where her physical, psychological, and social well-being are secure and can continue to be nourished and developed. Clearly, the quest for court-ordered intervention into the life of this new adoptive family hinders the integrity of this adoptive family unit and is contrary to the best interests of the child. In review of all relevant facts and circumstances, in particular, the lack of any relationship whatsoever between Karen S. and the adopted child, and the sound objections of the adoptive parents to the proposed visitation on the grounds of harm to the integrity of their adoptive family unit and the finality of the adoption, this Court finds no basis in law or equity to confer standing upon Karen S. to seek court-ordered visitation with the adopted child Seasia.
Accordingly, this Court grants the motion filed by the adoptive parents and dismisses the custody/visitation petition, V 10652/08, filed by Karen S., and the custody/visitation petition, V 10651/08, filed by Kareem W., and denies the applications in their entirety.