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Ernestine L. v. New York City Administration for Children's Services

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 16, 2010

IN RE MATTER OF ERNESTINE L., PETITIONER-APPELLANT,
v.
NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, ET AL., RESPONDENTS-RESPONDENTS.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about June 24, 2008, which dismissed petitioner's application for custody of the subject child, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Catterson, McGuire, Acosta, Renwick, JJ.

"It is well established that in reviewing . . . custody issues, deference is to be accorded to the determination rendered by the factfinder, unless it lacks a sound and substantial basis in the record" (Yolanda R. v Eugene I.G., 38 AD3d 288, 289 [2007]). Here, the court properly considered the child's "best interests" (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]), in denying the application of petitioner, who is not related to the child, for custody. The record shows that petitioner did not file a petition for adoption, whereas the foster mother, who has provided a loving and stable environment for the child for the majority of his life, wishes to adopt the child (see Matter of Michael B., 80 NY2d 299, 315 (1992). We note, too, that the law guardian for the child on this appeal advances cogent arguments in support of affirmance.

Petitioner's argument that to the extent Family Court relied on Social Services Law § 383 in making its determination such reliance was improper since the statute is unconstitutional as applied to her, is unpreserved (see e.g. Matter of Amin Enrique M., 52 AD3d 316, 317 [2008], lv dismissed 12 NY3d 792 [2009]), and we decline to review it in the interest of justice.

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100316

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