Albertina C. v. Administration for Children's Services

Matter of Albertina C. v Jamar J. (2015 NY Slip Op 01383)

Matter of Albertina C. v Jamar J.

2015 NY Slip Op 01383

Decided on February 17, 2015

Appellate Division, First Department

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.

Decided on February 17, 2015
Gonzalez, P.J., Acosta, Saxe, Manzanet-Daniels, Clark, JJ.

14212

[*1] In re Albertina C., Petitioner-Appellant, Administration for Children's Services, Respondent-Respondent,

v

Jamar J., et al., Respondents.

Leslie S. Lowenstein, Woodmere, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.

Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.

Order, Family Court, Bronx County (Carol R. Sherman, J.), entered on or about October 25, 2013, which denied petitioner grandmother's petition for custody and motion for visitation with the subject child, unanimously affirmed, without costs.

There is no presumption that it is in a child's best interest for custody to be awarded to a relative, and the sole issue in a custody proceeding is the best interests of the child (see Domestic Relations Law § 72[2][a]; Family Court Act § 631; Matter of Star Leslie W., 63 NY2d 136, 147-148 [1984]). The court properly found that it was not in the child's best interests to award the grandmother custody because the grandmother failed to appreciate the danger to the child in permitting the mother access, where the mother viciously beat the child's five-year old brother and failed to provide him with medical assistance for four days, until he died. The grandmother refused to acknowledge the mother's role in the sibling's demise, and testified that her daughter was an "excellent" mother.

With respect to visitation, the court properly undertook a two-part inquiry, and found, first, that the grandmother had established the right to be heard based on her testimony concerning her relationship with the child. However, the court also properly concluded that visitation was not in the child's best interests because of the grandmother's flawed understanding of the death of the child's brother, the testimony of the foster mother that, following visits, the child became defiant and aggressive, and the child's therapists' report that the visits were detrimental to the child (see Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 17, 2015

CLERK