Opinion
B XXXX/13
07-20-2016
In the Matter of Matthew R. In the Matter of a Proceeding for an Order of Guardianship Pursuant to Article 6 of the Family Court Act, Gricel R.,Petitioner, v. Lydia V., Respondents.
William C. Hoffman, Esq., attorney for the paternal aunt Kreuza Ganoli, Esq., attorney for HeartShare St. Vincent's Services Gemma Thomas-Ahyase, Esq., Attorney for the child Colleen Elizabeth Zitman, Esq., Attorney for the foster mother Lynn B. Vogelstein, Esq., Brooklyn Defender Services, attorney for the mother
William C. Hoffman, Esq., attorney for the paternal aunt Kreuza Ganoli, Esq., attorney for HeartShare St. Vincent's Services Gemma Thomas-Ahyase, Esq., Attorney for the child Colleen Elizabeth Zitman, Esq., Attorney for the foster mother Lynn B. Vogelstein, Esq., Brooklyn Defender Services, attorney for the mother Lillian Wan, J.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
In this consolidated guardianship and termination of parental rights dispositional hearing, the issue before the Court is whether the child's best interests will be served with a final order of guardianship to his paternal aunt, or an order freeing the child for adoption by the current foster mother.
Matthew (DOB 12/3/08) is now 7 ½ years old and has been in foster care since he was a newborn child. This is an incredibly difficult case for the Court to decide, and the Court recognizes the "all or nothing" nature of its determination. The Court wishes that there could be a different legal outcome in this case as it is clear that Matthew loves both his paternal aunt and his foster mother and the reality for Matthew is that what is best for him would be both women and their respective families remaining a part of his life. The Court is constrained by legal precedent. There is no legal authority to enter an order that requires visitation for either side. After careful consideration of all the testimonial and documentary evidence, the Court finds that Matthew's best interests requires dismissal of the guardianship petition, termination of the mother's parental rights, and freeing the child for adoption by the current foster mother.
A review of the procedural history and protracted litigation concerning Matthew is relevant to this Court's determination as to what is in the subject child's best interests. A neglect proceeding was filed against both Matthew's mother, Lydia V., and father, Felix R., on December 10, 2008, just days after the child's birth, and Matthew was remanded and placed in the non-kinship foster home of Diomara P., where he remains today. On August 11, 2009, the remand of Matthew was vacated and he was released to the care of both his mother and father under ACS supervision and certain conditions. In January 2010, findings of neglect were entered against both the mother and father based on their mental illness and failure to cooperate with mental health treatment and Matthew was released to the care of both parents on disposition. On May 11, 2010, Matthew was remanded into foster care again because of the father's failure to take psychotropic medication and subsequent psychiatric hospitalization, the father's cocaine usage, and the mother's marijuana usage. Matthew was again placed in the home of Ms. P. The Order of Disposition was modified to a placement with ACS.
After Matthew was placed with ACS in May 2010, the parents planned for the return of Matthew to their care. Both parents remained drug free and demonstrated regular compliance with mental health treatment. On or about August 19, 2011, Matthew was trial discharged to the care of the parents. On or about November 20, 2011, the father died suddenly of a heart attack. Matthew subsequently came back into foster care on or about November 6, 2012, due to the mother's psychiatric hospitalization and bruises and scratches discovered on Matthew's body. Matthew was again placed back in the home of the foster mother Ms. P. A termination of parental rights proceeding was subsequently filed and Matthew's permanency planning goal was modified to adoption, with the foster mother, Ms. P., being the pre-adoptive resource. Issue was joined on the termination of parental rights proceeding on September 17, 2013.
On September 30, 2013, Matthew's paternal aunt, Gricel R., a resident of Puerto Rico, filed a guardianship petition. The paternal aunt also filed a motion seeking an order for the Court to hear the guardianship petition prior to the termination of parental rights petition and for overnight visitation with Matthew. The respondent mother failed to appear in Court on multiple occasions and the termination matter was set down for inquest on May 4, 2015. A finding of permanent neglect was entered against the mother on default. Furthermore, the Court granted unsupervised visitation for the paternal aunt in the home of the aunt's daughter in Long Island City once the home was approved by the foster care agency. The foster care agency was also given discretion to commence overnight visits for the paternal aunt. The matter was then adjourned for a consolidated dispositional and guardianship hearing, which commenced on August 20, 2015. The Court heard the testimony of court appointed psychologist Michelle Graham, Psy.D, the agency case planner, Keisha Walker, the paternal aunt, Ms. Gricel R., the paternal aunt's daughter, Valerie V., the foster mother, Ms. Diomara P., the foster mother's adult son, Jose L., the subject child's therapist, Michelle Kaplan, LCSW, the paternal aunt's §722-c social worker, Jean Lafontant, and the attorney for the child's §722-c social worker, Krystal Ferguson. The Court also conducted an in camera interview of Matthew on March 15, 2016. Documentary evidence included the clinical reports of Dr. Graham, a letter from Ms. Kaplan, the Interstate Compact on the Placement of Children (ICPC) investigation approval report of Ms. R.'s home in Puerto Rico, and photographs of Matthew with his aunt and extended family. The hearing concluded on June 16, 2016 with oral summations.
The trial on the termination of parental rights matter was delayed in part because the respondent mother failed to attend her mental health evaluation appointments with the Kings County Family Court Mental Health Services Clinic and counsel for the petitioner switched to another law firm during the pendency of the proceeding. --------
Throughout the hearing, the attorney for the child maintained the position that Matthew should be adopted by his foster parent and that granting guardianship to the paternal aunt would be detrimental to the child's well-being because of the significant attachment he has to his foster family. The Court notes that towards the end of the hearing, the attorney for the child informed the Court that after interviewing Matthew again with a §722-c social worker, she was changing her position. The attorney for the child stated that based on Matthew's most recently stated wishes, she is now supporting the paternal aunt's guardianship petition. At summation, the attorney for the child informed the Court that after a review of all the evidence, she was changing her position again and substituting judgment for 7 year old Matthew. Counsel stated that based on the child's age, she could not take a strict advocacy position on behalf of her client because of his inability to understand what is in his best interests. In the end, the attorney for the child supports adoption by the foster mother. The agency also supports a termination of the mother's parental rights, and adoption by the current foster mother, Ms. P. Ms. P. is also in support of this disposition and wishes to adopt Matthew.
As a threshold matter, the Court determines that the paternal aunt has standing to petition for guardianship of the subject child. Extraordinary circumstances exist in this case as the subject child has been in foster care for the majority of his life, the biological father is deceased and there have been findings of neglect and permanent neglect entered against the respondent mother. See, Bennett v. Jeffreys., 40 NY2d 543 (1976); See also, Matter of Herrera v. Vallejo, 107 AD3d 714 (2nd Dep't 2013) (prior neglect findings against the mother arising from her abuse of alcohol and her acts of domestic violence towards the child demonstrated extraordinary circumstances); Matter of Linda D. v. Renee D., 40 AD3d 1201 (3rd Dep't 2007) (father's prior adjudication of neglect, his criminal conviction for attempted burglary and arrest for possession of marijuana was sufficient to award custody of the children to the grandparents).
The Court directed the Kings County Mental Health Services (MHS) clinic to conduct a mental health evaluation for the purposes of assisting the Court in determining what is in the best interests of Matthew. The Court ordered MHS to assess the current foster mother, the paternal aunt, as well as the subject child. The Court further directed the MHS clinician to observe interaction between the child and the paternal aunt as well as interaction between the foster mother and the child. Finally, the Court directed the clinician to do a mental health assessment of the child Matthew. Dr. Graham performed the evaluations and prepared two reports which were received into evidence as the Court's Exhibits 1 and 2. The report containing the clinical interviews of the paternal aunt on June 1, 2015, the foster mother on June 9, 2015, and interactions with Matthew was deemed Court's Exhibit 1 and the report containing the clinical interview of Matthew was deemed Court's Exhibit 2. Dr. Graham separately interviewed Matthew on July 31, 2016. Dr. Graham also conducted a collateral phone interview with Matthew's therapist, Michelle Kaplan, LCSW. Dr. Graham testified as an expert in the field of psychology. Dr. Graham noted that Matthew has already suffered abandonment and loss of his mother and father and that multiple disruptions in attachment could effect Matthew's future relationships and his mental health. Dr. Graham reviewed Matthew's history and was aware of two failed trial discharges to Matthew's biological parents and how Matthew returned to the care of Ms. P. each time. During the course of the interview, Matthew spontaneously stated to Dr. Graham that he has "two mommies" referring to his "mommy Lydia" (his biological mother) and his foster mother. Matthew told Dr. Graham that it makes him sad when he does not get to see his "mommy Lydia."
Dr. Graham stated that Matthew views his foster mother, Ms. P. as his mother and her sons as his "brothers," and that not being able to see Ms. P. would be the "loss of another mommy." Dr. Graham observed Matthew to be fully attached to Ms. P. and that while he expressed his love for his aunt, he appeared to have a stronger bond with Ms. P. who he called "mommy." Dr. Graham observed Matthew curled up in Ms. P.'s lap with his arms wrapped around her. Dr. Graham described Matthew as happy, well-adjusted and thoughtful. She further noted that the aunt minimized Matthew's bond with his foster mother and stated that if she is granted custody it would involve a "change of scenery" for Matthew but that he would cope with it and move on quickly. Dr. Graham testified that if Matthew was removed from Ms. P., it could be very traumatic as it would result in several disruptions to his life. His immediate physical environment would change and he would be uprooted and relocated to Puerto Rico. Most significantly, Matthew's caregivers would change from Ms. P. to the aunt and her husband, who Matthew has met only once. Dr. Graham noted that both the foster mother and Matthew's therapist reported that Matthew has exhibited symptoms of depression, including sadness and crying, however these issues have improved, but now there is a new concern of bed-wetting. Matthew's therapist reported to Dr. Graham that Matthew is diagnosed with ADHD and is prescribed Dexedrine.
Dr. Graham further indicated that it is also important for a child to have ties with biological family if possible because children develop curiosity about their own background. Matthew told Dr. Graham that Ms. R. is his "aunt" and that he calls her "titi mommy." Dr. Graham also noted that not maintaining contact with his aunt Ms. R. could be the potential loss of another family member that Matthew loves. However she clarified that it would not be the loss of a mother, and noted that there are different ways of being with family members. Dr. Graham recommended that the potential loss to Matthew could be minimized by maintaining contact with his aunt. Dr. Graham acknowledged that the distance in this case is an issue since the aunt resides in Puerto Rico and the foster mother resides in New York City. She stated that Ms. R. has shown dedication and commitment to Matthew in moving to New York to be close to Matthew. However, she was also clear that this does not necessarily mean that it is in Matthew's best interests to live in Puerto Rico with his aunt.
Dr. Graham interviewed Matthew alone on July 31, 2015. Matthew drew a picture for "mommy" during the interview and indicated that he planned on giving it to Ms. P. During the course of Dr. Graham's interview with Matthew, Matthew stated that his foster mother hits him with an open palm and objects, but Dr. Graham did not see any marks or bruises on Matthew's body. Matthew was very vague about this, and it is notable to the Court that these allegations were first raised by the aunt to the caseworker after Matthew returned from a weekend visit with his aunt.
Matthew's therapist, Michelle Kaplan, LCSW, testified as the Court's witness. The Court deemed Ms. Kaplan as an expert in the field of social work as she is a licensed clinical social worker and has been practicing for the last 15 years. She currently provides individual, family and group counseling at Institute for Community Living. Ms. Kaplan sees both children and adults and has a caseload of approximately 40-45 clients. She indicated that she has been working with Matthew for over two and a half years, since September 2013. She sees Matthew once per week and his sessions are approximately 40-45 minutes long. Ms. Kaplan testified that Matthew is a "very quiet" and "very guarded" child although he has opened up a little more over the last few months. Matthew expresses himself through drawing and does not elaborate a lot. Ms. Kaplan testified that Matthew has "conflicted" and "torn feelings" about where he wants to live and has stated, "I don't know where I want to be," and "I don't want to leave my school and friends." There was one session in early December 2015 where Matthew started crying and expressed wanting to be with both Ms. P. and his "titi." Ms. Kaplan has observed love and affection in the interaction between Matthew and the foster mother. She has seen him say "love you mommy," and he gives Ms. P. the drawings that he makes during therapy sessions.
Ms. Kaplan has also seen both of the foster mother's adult sons and has observed Matthew's interaction with them as loving. He talks about them as his "brothers." Ms. Kaplan noted that Matthew is aware of the "tug of war" over him in court and he remains conflicted. Ms. Kaplan was not able to speak to what harm, if any, Matthew would suffer from being cut off from his aunt or from being cut off from Ms. P. Ms. Kaplan never interviewed the paternal aunt or any of her family members in connection with providing therapy to Matthew. She never observed Matthew interacting with his aunt and was only able to comment on the affection and love that Matthew exhibited towards the foster mother and her family.
The case planner, Keisha Walker, testified on behalf of the agency. Ms. Walker indicated that she has had very little contact with the respondent mother and that she never attended the scheduled weekly visits with Matthew. The mother's last visit with Matthew occurred in December 2014, and she lost contact with the foster care agency in February of 2015. The mother also never completed any of her required services. Ms. Walker noted that Matthew has been living in the non-kinship foster home of Ms. P. since he was born in 2008 and that she regularly visits the foster home. Ms. P. is primarily Spanish speaking but Matthew understands both Spanish and English so they have no problems communicating with each other. She further noted that Matthew calls Ms. P. "mommy" and that he calls her sons his "brothers." She specifically noted that Matthew has a "younger brother John" who is close in age with Matthew. Ms. Walker has observed a normal positive family interaction between everyone in the household. Ms. Walker testified that Matthew is prescribed Dexedrine for ADHD and the foster mother ensures that Matthew takes his medication. Ms. Walker noted that the recommendation for medication was based on a diagnosis of hyperactivity and aggressive behavior but the foster mother never reported that Matthew was hyperactive, aggressive or that he had any behavioral issues. Similarly, Matthew's school never reported any issues with hyperactivity or aggression.
Ms. Walker also indicated that Matthew has been having alternating weekend visits with the paternal aunt since May 2015. Ms. Walker has observed positive interaction between Matthew and his aunt and she has no concerns about the aunt. The aunt usually picks Matthew up on Fridays at 4:00pm at the foster care agency and then brings Matthew back on Sunday. In the summer months, the aunt brings Matthew back to the agency on Mondays at 1:00pm. Matthew always indicated to Ms. Walker that he had a good time on visits but on the September 23, 2015 court date, where Matthew was brought to court and then interviewed by Ms. Walker before the scheduled court appearance, Matthew stated that he was "unsure" about going on future visits. Ms. Walker also indicated that Matthew spoke to his lawyer before the court appearance. Ms. Walker further testified that Matthew started to wet his bed in June or July after returning from a weekend visit with his aunt. With regards to the allegations that Matthew was hit by the foster mother, Ms. Walker noted that the paternal aunt initially informed her of this after Matthew returned from a weekend visit with her. When Ms. Walker questioned Matthew about it, Matthew said that Ms. P. hit him with "stuff" but did not give any further details. Mr. Walker brought this to the attention of her director and they had a meeting with Ms. P. where she denied the allegations. Ms. Walker reported no concerns about Ms. P. adopting Matthew.
On cross examination by the attorney for the child, Ms. Walker clarified that Matthew has lived in the foster home of Ms. P. for his entire life except for the months where he went home to the respondent mother and respondent father on two separate occasions. Matthew returned to the home of Ms. P. both times. Ms. Walker stated that there was never any attempt by family members to take custody of Matthew after the two failed trial discharges. Ms. Walker was clear that Matthew loves both his aunt and his foster mother.
The paternal aunt, Ms. R. testified that she is the sister of Matthew's biological father, Felix R., who passed away on November 20, 2011. Ms. R. indicated that she did not learn that Matthew was in foster care until her brother passed away. She also knew that Matthew was residing in the shelter system with his mother, but she never visited Matthew when he was with his mother. Ms. R. testified that she currently lives in her daughter's home in Long Island City but she resides in Puerto Rico. She has been living in Long Island City since she filed for guardianship so that she can be close to Matthew. Ms. R. stated that if she gets guardianship of Matthew, her plan is to move back to Puerto Rico where Matthew would live in her private house, where she resides with her husband, son, and sister. Ms. R. testified that Matthew would go to one of three elementary schools, that he would be placed on her own private health insurance and that she has already identified a physician for Matthew. Ms. R. indicated that she has numerous relatives in Puerto Rico, including her husband, her son, her sister, her sister's three children, aunts, and grandchildren. Relatives in New York include Ms. R.'s daughter and her three children, her brother, and Matthew's paternal grandmother. Ms. R. testified that she did not file for custody of Matthew until September 30, 2013 because first her brother wanted to get Matthew back in his care and then Matthew was with his mother in a shelter. Ms. R. acknowledged that Matthew is "devastated" over losing both his mother and father and he asks about his parents frequently. She further acknowledged that none of the relatives in Puerto Rico have ever met Matthew, with the exception of her husband, who met him once in May 2015 on a weekend visit.
Ms. R. minimized the effect that a move to Puerto Rico would have on Matthew. She indicated that it would affect him "a little" because he would be leaving to go to a different place, but that he would adjust because "that's family" and there are "faces that he knows." Ms. R. informed the Court that if she had guardianship of Matthew she would let Matthew write his foster mother post cards and have contact through Skype, and that if she came to New York, she would notify the foster mother to see if she wants to see Matthew. When asked on cross examination if she understood that a visit once a year and contact through post cards is different than seeing Ms. P. every day, Ms. R. stated that "he would adjust." Ms. R. testified that she has enjoyed her weekend visits with Matthew and she wishes she had more time with him. According to Ms. R., Matthew has told her that he would like to stay with her "forever" and she has told him that he "has to tell the right people." She clarified that the "right people" would be Matthew's attorney and the foster care agency.
The paternal aunt's daughter, Valerie V., also testified. She informed the Court that her mother filed for guardianship of Matthew to "keep him in the family." Valerie lives in Long Island City and has three daughters, the youngest child being 9 years old. Valerie testified that when her mother is living in Puerto Rico she comes to New York approximately once a year or once every two years. Valerie stated that she also visits Puerto Rico once a year.
Mr. Jean Lafontant, a social worker retained by the paternal aunt's attorney pursuant to Article 18-B, §722-c of the County Law, testified on the paternal aunt's behalf. Mr. Lafontant testified that he received a work order on December 23, 2014 from his employer, Delores Andrews. He indicated that his role in cases depends on what the assigned attorney asks him to do. On Matthew's case, his primary responsibilities included attending conferences, facilitating the ICPC investigation, and observing interaction between Matthew and Ms. R. Mr. Lafontant had the opportunity to observe Matthew and Ms. R.'s interaction on four separate occasions over the course of approximately fourteen months, which included three visits to the home of Ms. R.'s daughter in Long Island City. Mr. Lafontant noted that Matthew called the paternal grandmother, who lives in the home, "grandma," and called Ms. R. "titi." He observed Matthew playing with his cousin Janiyah. Mr. Lafontant had no safety concerns and noted that Ms. R. treated Matthew like her own child and was always checking up on him. He described their interaction as "an interaction between aunt and nephew."
The foster mother, Ms. P., testified that she has been a foster parent for approximately eight years and in that time she has had about twelve children in her home. She indicated that she has adopted 6 year old John. Ms. P. explained that Matthew has been in her care since December 10, 2008. Ms. P. indicated that she has a very loving "mother and son" relationship with Mathew. On a typical day, Ms. P. wakes Matthew up for school, prepares his breakfast, drops off and picks Matthew up from school, and helps him with his homework. Ms. P.'s household consists of herself, Matthew, John, her adult son Jose and her son Francisco who goes to college in Plattsburgh. Both Ms. P. and Jose attend parent-teacher conferences for Matthew. Ms. P. indicated that Matthew has a very good relationship with his three brothers. Ms. P. relayed that when Matthew initially came back to her home, Matthew had a lot of bruises and he spent much of his time crying and sleeping. She had to sleep with Matthew every night. Ms. P. further stated that Matthew has been receiving therapy and medication for his ADHD diagnosis since October 2013 and that she gives Matthew his medication in the morning before school. Ms. P. testified that she wants Matthew to stay with her and that he is her son "even if he didn't come from my womb" and that "we are his family."
Ms. P. stated that if Matthew stayed with her, she would allow contact with Ms. R. via telephone, Skype, and that she would allow Matthew to visit with Ms. R. and her family in New York and in Puerto Rico. When Ms. P. was asked what kind of contact she would want if the aunt was given guardianship, Ms. P. was very honest with the Court and stated that she would not want contact right away and that "it would hurt me too much." She further indicated that Matthew was very close to her and she did not want Matthew "to suffer." Ms. P. stated that Matthew has told her that he does not want to leave her. Ms. P. cried at various points during her testimony. Ms. P. denied using any corporal punishment on Matthew and stated that it was a coincidence that allegations that she hit Matthew arose when he came back from a weekend visit with the aunt.
The foster mother's oldest son, Jose L., testified on behalf of the attorney for the child. He credibly testified that Matthew has been living in his household since he was a newborn except for the period of time that he was living back with his biological parents. Jose indicated that he has a biological brother named Francisco who is away at college for most of the year except for holidays and summer vacation. Jose lives in his mother's household and works the evening shift at Bed, Bath and Beyond. Jose described Matthew as his "little sidekick" and that Matthew "goes everywhere I go." Jose described Matthew and his little brother John as "inseparable." Jose further stated that his mother usually brings Matthew to school and picks him up, but on every other Friday, he picks Matthew up from school to take him to the visit with his aunt. Jose explained that they take the number 3 subway train, and that when Matthew sees the train he starts to cry, and states that he does not want to leave "mommy" or the family. Jose stated that Matthew is usually fine by the time they get to the foster care agency and he does appear happy to see Ms. R., but he does cry for approximately 35 minutes on the subway trip to the agency. Jose has to calm Matthew down because he will not stop crying. Jose indicated that he wants Matthew to stay in his home because Matthew is family and that it "doesn't matter if we're blood or not." He stated that this is the only home Matthew has ever known.
Krystal Ferguson, the §722-c social worker retained by the attorney for the child, testified as the Court's witness. The Court gives little weight to Ms. Ferguson's testimony about Matthew's wishes. Ms. Ferguson stated that she explicitly told Matthew that she would let the judge know what his wishes are, but she did emphasize that the final decision was up to the judge. Although Ms. Ferguson herself is not a licensed clinical social worker, she works under the certification of Nadine Mass, LCSW. Ms. Ferguson testified that she only met Matthew one time for one hour on May 10, 2016, at his lawyer's office. Everything she knew about Matthew's history came from her conversation with Matthew's attorney. Ms. Ferguson did not review any of Matthew's foster care records or any of the documentary evidence from the instant hearing. Ms. Ferguson did not speak to any other individuals about Matthew before or after her interview with the child. Furthermore, Ms. Ferguson's statement that one hour was sufficient for Matthew to be at ease in an interview and for him to open up and speak freely with her was inconsistent with the testimony of Matthew's long term therapist, who stated that Matthew is very guarded and tends to express himself more through drawing than with words. Ms. Ferguson was a total stranger to Matthew. He never saw her before or after that one hour interview. On cross examination, Ms. Ferguson said that it surprised her "very much" to learn that Matthew's therapist of two and a half years has said that Matthew is very closed off and guarded. She indicated that she would have wanted to speak to his therapist had she known about this information.
Ms. Ferguson informed the Court that Matthew referred to his foster mother as "mommy," and that he has lived there for a "very long time." Ms. Ferguson stated that if Matthew does something he's not supposed to do, sometimes he is hit. She explained that the foster mother uses an open hand to hit the top of Matthew's wrist if Matthew is doing something which could result in him getting hurt, such as jumping off something. Matthew denied ever being hit with any objects or a closed fist. When asked why he likes living with Ms. P., Matthew responded that he loves his "brother" John. When asked where he would like to live, Matthew told Ms. Ferguson that he wants to live in Puerto Rico with his aunt "titi." Ms. Ferguson testified that she explained the difference between living and visiting and she informed Matthew that living in a place means being there every day. When she asked him if he would miss his foster family, Matthew said that he would miss John the most.
There is no dispute that both the foster mother and the paternal aunt provide a suitable home environment for Matthew. The aunt's home in Puerto Rico was deemed appropriate through an ICPC investigation. The foster home of Ms. P. is certified through the foster care agency who maintains regular visits to the home. This case is complicated by the reality that Ms. R. lives in Puerto Rico and plans to return to Puerto Rico. Ms. R. has been living temporarily in her daughter's home in Long Island City for the last two and a half years. Ms. R. has been having visits with Matthew every other weekend and he has formed a bond with Ms. R. and her family.
While the expressed wishes of the child are to be considered, they are by no means determinative. See Zucker v. Zucker, 187 AD2d 507 (2nd Dep't 1992); Matter of Robert T.F. v. Rosemary F., 148 AD2d 449 (2nd Dep't 1989). In Feltman v. Feltman, 99 AD2d 540, 541 (2nd Dep't 1984), the Second Department ruled that an 11 year old child was "not mature enough to weight intelligently the factors necessary to make a wise choice as to [his] custody." In Ira K. v. Frances K., 115 AD2d 699, 700 (2nd Dep't 1985), the Second Department further noted that even a 7 year old child of superior intellect is "hardly capable of intelligently assessing all the factors which must be considered in determining where her best interests lie." Matthew is only 7 years old and is vulnerable to influence by all the adults in his life. Matter of Robert T.F., supra. Undoubtedly, throughout this litigation, Matthew has been asked countless times, by countless individuals, where he "wants to live." The Court is not convinced that Matthew even understands what this question means at this point.The Court's in camera interview with Matthew was consistent with Ms. Kaplan's report (Agency's Exhibit 1) and her testimony. According to Ms. Kaplan's letter to the case planner, dated January 19, 2016, "Matthew stated he likes being with both Ms. P. and with his aunt as well," and Matthew "can't decide who to be with." Matthew cried when discussing his placement in one of his therapy sessions. Matthew is not capable of making a determination about what custodial arrangement is in his best interests.
The paternal aunt's argument on summation that Ms. P.'s family is not Matthew's "actual" family and that there is no need to turn them into a family with a "legal device" is unpersuasive. Counsel's further contention that the paternal aunt has a 14th Amendment due process right to have custody of the child and that there should be a presumption that placing Matthew with a biological relative is preferable to placing him with an unrelated foster parent is misplaced. While the Court recognizes that there is a statutory scheme within Article 10 of the Family Court Act that favors placement of children with appropriate relatives, especially early on in a case, at the dispositional phase of a termination of parental rights proceeding, the child's best interests is paramount. There is no presumption that the child's best interests will be served by placement with the parent and "members of the child's extended biological family are given no special preference with regard to custody." See Matter of Chastity Imani MC., 66 AD3d 782, 783 (2nd Dep't 2009) quoting Matter of Pryor v. Lindsay, 60 AD3d 859 (2nd Dep't 2009); see also, Matter of Tiffany Malika B., 215 AD2d 200 (1st Dep't 1995). Furthermore, "a nonparent relative does not take precedence over the adoptive parents selected by an authorized agency." See Matter of Chastity Imani MC., supra; Matter of Vanisha J., 87 AD3d 696 (2nd Dep't 2011); Matter of Alma R. v. Ruth M., 237 AD2d 127 (1st Dep't 1997).
The Second Department has long recognized that it may be in the best interests of a child for parental rights to be terminated and for guardianship and custody of the child to be transferred to the Commissioner of Social Services for adoption in situations where the child has developed a close bond with a foster parent who has been caring for a child for the majority of his or her life. See Matter of Chastity Imani MC., supra; Matter of Vanisha J., supra; Matter of Marie J., 307 AD2d 265 (2nd Dep't 2003); Matter of Olivia Susan C., 2 AD3d 441 (2nd Dep't 2003). Furthermore, the Court notes that under Social Services Law (hereinafter SSL) §383(3), a foster parent who has cared for a child continuously for a period of twelve months or more, has preference to adopt a child. The statute also recognizes that foster parents are permitted as a matter of right, as an interested party, to intervene in any proceeding involving the custody of the child. See SSL §383(3). Matthew has resided in the foster home of Ms. P. for almost all of his life. To Matthew, Ms. P. is his mother, and her sons are his brothers. Since the last failed trial discharge in November 2012, Matthew has been residing in her home continuously for the last three years and eight months.
Matthew is especially close with Ms. P.'s adopted son John, who Matthew regards as his little brother. In making a custody determination, the Court must consider the stability and companionship to be gained by keeping siblings together. See Matter of Faunteleroy v. Mercado, 5 AD3d 482 (2nd Dep't 2004); Esbach v. Esbach, 56 NY2d 167 (1982). Matthew does not draw any distinction between foster brother and brother. Forcing Matthew to leave the woman he considers his mother and her sons who he regards as his brothers would not be in the best interests of Matthew and could result in Matthew feeling abandoned by another parent. Matthew's close bond with his younger brother John has been made clear during the testimony of various witnesses throughout this hearing. Leaving John would devastate Matthew and would result in Matthew experiencing additional loss and abandonment when he has already endured the loss and abandonment of his biological parents.
What is clear to the Court after considering all the evidence submitted at this hearing, including the in camera interview, is that Matthew loves both his aunt and his foster mother. Matthew is a 7 year old little boy and he is confused and conflicted. The Court is constrained by case law precedent and governing statutes from directing any visitation for the paternal aunt once Matthew is freed for adoption. In Matter of Hailey ZZ., 19 NY3d 422 (2012), the Court of Appeals unequivocally stated that there is no statutory authority for preserving contact between a parent and a child outside the context of a voluntary surrender pursuant to SSL §383-c. There is also no statutory authority for preserving contact between a nonparent biological family member and a child, and without such Courts are prohibited from ordering post adoption contact if not on consent. Furthermore, while there are separate vehicles under the Domestic Relations Law for siblings and grandparents to petition for visitation and for the Court to order such visitation if in the best interests of the child, there is no such vehicle available for the paternal aunt. See DRL §§71, 72. Absent legislative change, the Court is without authority to issue any order directing visitation for the paternal aunt.
Psychologist Dr. Graham has recommended that Matthew maintain contact with his paternal aunt. Ms. P. has stated on the record that she would allow Matthew to have telephone and Skype contact with Ms. R. and allow for visitation with Ms. R.'s family in New York. Ms. P. has also stated that she would allow Matthew to visit his aunt in Puerto Rico and that she would also allow Matthew to visit his aunt in New York if she came to New York. Ms. R. has made immense sacrifices over the last two and a half years. She left her home in Puerto Rico and has relocated to Long Island City to develop a relationship with Matthew. Matthew is so fortunate to have an aunt that was willing to sacrifice this much for him. It is the Court's hope for Matthew going forward that the paternal aunt will remain in Matthew's life and that she will come to New York often to visit Matthew and that Ms. P. will foster this relationship. DATED: July 20, 2016 Hon. Lillian Wan