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In re Ender M.Z.-P. (Anonymous)

Supreme Court of New York, Second Department

September 11, 2013

In the Matter of Ender M. Z.-P. (Anonymous), petitioner-respondent, Administration for Children's Services, et al., respondents, and Olga Z. (Anonymous), respondent-respondent; Orianne Z. (Anonymous), also known as Oriana Z. (Anonymous), nonparty-appellant; Rosa B. (Anonymous), et al., nonparty-respondents. (Proceeding No. 1) In the Matter of Ender M. Z.-P. (Anonymous), petitioner-respondent, Administration for Children's Services, et al., respondents, Olga Z. (Anonymous), respondent-respondent; Darryl A. H., also known as Daryl A. H., nonparty-appellant. (Proceeding No. 2) In the Matter of Orianne Z. (Anonymous), also known as Oriana Z. (Anonymous), nonparty-appellant. Administration for Children's Services, et al., petitioners-respondents; and Olga Z. (Anonymous), respondent-respondent; Ender M. Z.-P. (Anonymous), et al., nonparty-respondents. (Proceeding No. 3) In the Matter of Darryl A. H. (Anonymous), also known as Daryl A. H., nonparty-appellant. Administration for Children's Services, et al., petitioners-respondents; and Olga Z. (Anonymous), et al., respondents-respondents; Ender M. Z.-P. (Anonymous), nonparty-respondent. (Proceeding No. 4) Docket Nos. B-24060-09, B-16866-10, V-26242-09, V-26244-09

Steven P. Forbes, Jamaica, N.Y., for nonparty-appellants.

Geanine Towers, Brooklyn, N.Y., for Ender M. Z.-P., petitioner-respondent in Proceedings Nos. 1 and 2 and nonparty-respondent in Proceedings Nos. 3 and 4.

Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for Little Flower Children and Family Services, petitioner-respondent in Proceeding Nos. 3 and 4.

Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Jacqueline Harounian of counsel), for Rosa B. and Coobeer B., nonparty-respondents in Proceedings Nos. 1 and 3.

PETER B. SKELOS, J.P. DANIEL D. ANGIOLILLO SHERI S. ROMAN JEFFREY A. COHEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Social Services Law § 384-b to terminate parental rights and related child custody proceedings pursuant to Family Court Act article 6, the children Orianne Z., also known as Oriana Z., and Darryl A.H., also known as Daryl A.H., appeal from (1) an order of the Family Court, Queens County (McGowan, J.), dated February 2, 2012, and (2) an order of the same court dated February 6, 2012, which, after a hearing, granted the petitions of the maternal uncle, Ender M. Z.-P., for custody of both children. By decision and order on motion of this Court dated March 19, 2012, enforcement of the order dated February 6, 2012, was stayed pending hearing and determination of the appeals.

ORDERED that the appeal from the order dated February 2, 2012, is dismissed as abandoned, without costs or disbursements; and it is further,

ORDERED that the order dated February 6, 2012, is reversed, on the law and the facts, without costs or disbursements, the petition of the maternal uncle, Ender M. Z.-P., for custody of the child Orianne Z., also known as Oriana Z., is denied, and the matter is remitted to the Family Court, Queens County, for a new determination of the petition of the maternal uncle, Ender M. Z.-P., for custody of the child Darryl A. H., also known as Daryl A. H., following a forensic evaluation of Ender M. Z.-P.

The standard to be applied in a change-of-custody determination is the best interests of the children, which must be determined by an evaluation of the totality of the circumstances (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Vanisha J. [ Patricia J. ], 87 A.D.3d 696). Since child custody determinations depend, in large measure, on assessments by the hearing court of the credibility and character of the witnesses, those assessments are entitled to deference on appeal, and should not be set aside lightly. Nonetheless, this Court's authority in custody determinations is as broad as that of the hearing court (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947; Matter of James A.-S. v Cassandra A.-S., 107 A.D.3d 703). Accordingly, while "we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge, ' we allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (Matter of James A.-S. v Cassandra A.-S., 107 A.D.3d at 706, quoting Matter of Gloria S. v Richard B., 80 A.D.2d 72, 76).

The hearing court's determination that it was in the best interests of the child Orianne Z. to move to the home of her maternal uncle rather than remain with her foster parents for the purpose of adoption lacks the requisite sound and substantial basis in the record (see Matter of Destiny O., 44 A.D.3d 951, 952; Matter of Takylia B., 24 A.D.3d 759). Once parental rights have been terminated, there is no presumption favoring the child's biological family (see Matter of Peter L., 59 N.Y.2d 513, 520; Matter of Seasia D. [ Kareem W. ], 75 A.D.3d 548, Matter of Alpacheta C., 41 A.D.3d 285; Matter of Zarlia Loretta J., 23 A.D.3d 317). Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart (see Matter of Luke v Luke, 90 A.D.3d 1179; Barbara ZZ. v Daniel A., 64 A.D.3d 929; Matter of Dunaway v Espinoza, 23 A.D.3d 928; Matter of Tavernia v Bouvia, 12 A.D.3d 960). Here, as the children never shared a household, the Family Court erred in concluding that this consideration outweighed the benefit to Orianne of remaining in her foster home, where she has resided since infancy (see Matter of Vanisha J. [ Patricia J. ], 87 A.D.3d at 696; Matter of Williams v Williams, 66 A.D.3d 1149, 1152; Matter of Bush v Stout, 59 A.D.3d 871; Matter of Alpacheta C., 41 A.D.3d at 285). The record clearly reflects that Orianne has bonded with her foster family, and is healthy, happy, and well provided for (see Matter of Chastity Imani Mc., 66 A.D.3d 782; Matter of Pryor v Lindsay, 60 A.D.3d 859). Accordingly, the Family Court erred in determining that it was in Oriane's best interests to move to the home of her maternal uncle rather than remain with her foster parents for the purpose of adoption, which, the record indicates, is the foster parents' intent (see Social Services Law § 383[3]; Matter of Destiny O., 44 A.D.3d at 952; Matter of Takylia B., 24 A.D.3d at 759).

Likewise, we do not find a sound and substantial basis in this record to support the Family Court's determination with regard to the maternal uncle's petition seeking to change the custody of the child Darryl A. H. However, unlike our determination with regard to the petition seeking custody of Orianne, we conclude that, with respect to the custody of Darryl, the Family Court did not have before it sufficient evidence to render "an informed determination consistent with the child's best interests" (Matter of Peek v Peek, 79 A.D.3d 753, 754; Matter of Savoca v Bellofatto, 104 A.D.3d 695, 696; Matter of Rovenia G.M. v Lesley P.A., 44 A.D.3d 942). Although the Family Court held a hearing, absent from this record is any evidence that a full forensic evaluation of the maternal uncle was conducted to determine his fitness as a custodial parent and the suitability of his home environment. The court's failure to direct the performance of this forensic evaluation deprived it of evidence that would have been highly probative. Accordingly, the matter must be remitted to the Family Court, Queens County, for a new determination with respect to the maternal uncle's petition for custody of Darryl, after the completion of a full forensic evaluation of the maternal uncle (see Matter of Lamarche v Jessie, 74 A.D.3d 1341; Matter of Jave v Danial, 70 A.D.3d 696; Matter of Sahara K., 66 A.D.3d 1024, 1025; Matter of Rovenia G.M. v Lesley P.A., 44 A.D.3d 942). We note that, although the maternal uncle's wife is not a party to this proceeding, the maternal uncle is seeking placement of the child in his home where he resides with his wife, and he testified at the hearing regarding the care that both he and his wife would provide for the child. Thus, the wife's agreement to voluntarily appear for a forensic evaluation would greatly benefit the court in evaluating the suitability of the maternal uncle's home environment (cf. Matter of Mullings v Foster, 40 A.D.3d 1102).

The appeal from the order dated February 2, 2012, must be dismissed as abandoned, as the children do not seek reversal or modification of any portion of that order in their brief (see Sackett v Estate of Konigsberg, 74 A.D.3d 777; Cerniglia v Church of the Holy Name of Mary, 72 A.D.3d 862; Bibas v Bibas, 58 A.D.3d 586).

SKELOS, J.P., ANGIOLILLO, ROMAN and COHEN, JJ., concur.


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