State of New York Supreme Court, Appellate Division Third Judicial Department
December 10, 2009
IN THE MATTER OF JOCELYN II., APPELLANT,
VANESHA P. ET AL., RESPONDENTS.
The opinion of the court was delivered by: Kavanagh, J.
MEMORANDUM AND ORDER
Calendar Date: October 23, 2009
Before: Rose, J.P., Kavanagh, Stein, McCarthy and Garry, JJ.
Bethene L. Simmons, Law Guardian, Chatham.
Appeal from an order of the Family Court of Columbia County (Nichols, J.), entered December 17, 2007, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of a child of respondent Vanesha P.
A neglect proceeding was commenced against respondent Vanesha P. (hereinafter the mother) after her child (born in 2005) was placed in the custody of the New York County Department of Social Services.*fn1 Petitioner, the mother's former paramour who had been responsible for caring for the child, commenced this proceeding in Family Court in Nassau County seeking custody of the child. After Family Court (Bennett, J.) determined that petitioner had standing to seek custody, it transferred the proceedings to Family Court in Columbia County. There, respondent Columbia County Department of Social Services (hereinafter DSS) commenced a permanent neglect proceeding that ultimately resulted in the termination of the mother's parental rights. Family Court (Nichols, J.), after a hearing, denied petitioner's custody petition, and determined that it was in the child's best interests that he stay in foster care and be freed for adoption. Upon the denial of her application for custody, petitioner now appeals.
We affirm. Petitioner argues that once it was determined that she had standing to seek custody of the child, DSS was required to make diligent efforts to reunite the child with her. In fact, no such obligation exists because petitioner was not the subject of a parental rights termination proceeding (see Social Services Law § 384-b  [a]). In any event, we note that, in addition to missing three court appearances with respect to this petition, petitioner has failed to contact DSS to arrange for visits with the child or to have any communication with him. Moreover, while petitioner argues that she should be allowed to adopt the child and not be placed at a disadvantage because of her status as a single, unmarried person (see 18 NYCRR 421.16 [d]), that consideration is not relevant because she never commenced an adoption proceeding. The only proceeding before Family Court was petitioner's application for custody and, in that proceeding, Family Court specifically noted that, while granting custody of the child to DSS, it was "without prejudice for frankly anyone, including [petitioner,] to seek foster parent status with respect to this child... if she chooses." As such, Family Court did not make any ruling with respect to petitioner's adoption of the child, and her arguments as they pertain to adoption are without merit.
Moreover, we find that a sound and substantial basis exists in the record for Family Court's conclusion that it was not in the best interests of the child to grant petitioner custody (see Matter of Haylee RR., 47 AD3d 1093, 1096 ; Matter of Brittney U., 44 AD3d 1124, 1125 , lv denied 9 NY3d 816 ; Matter of Donald W., 17 AD3d 728, 729 , lv denied 5 NY3d 705 ). While petitioner undoubtedly played an important role in caring for the child after he was born,*fn2 she has had no contact with him since he was placed in a foster home where he resides with his two biological siblings. In fact, it appears that the child is thriving in foster care and the foster mother has commenced proceedings to adopt him and his siblings. Petitioner, on the other hand, is unemployed and currently lives with her brother and his adolescent son. She has serious physical limitations that have made it impossible for her to care for her own 13-year-old son, who now resides with petitioner's mother in Florida. Simply stated, there is no credible evidence in the record to support petitioner's assertion that she can adequately care for this child. Accordingly, we find that Family Court properly determined that it was not in the child's best interests for custody to be awarded to petitioner.
Rose, J.P., Stein, McCarthy and Garry, JJ., concur.
ORDERED that the order is affirmed, without costs.