In re Melissa M.

101 Misc. 2d 407, 421 N.Y.S.2d 300, 1979 N.Y. Misc. LEXIS 2692
CourtNew York Family Court
DecidedOctober 22, 1979
StatusPublished
Cited by2 cases

This text of 101 Misc. 2d 407 (In re Melissa M.) is published on Counsel Stack Legal Research, covering New York Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Melissa M., 101 Misc. 2d 407, 421 N.Y.S.2d 300, 1979 N.Y. Misc. LEXIS 2692 (N.Y. Super. Ct. 1979).

Opinion

OPINION OF THE COURT

Nanette Dembitz, J.

The issue in this proceeding is whether the court can and should grant the right of visitation to former foster parents, who had given their foster child excellent care for virtually all of her first four and one-half years of life, after her return to her natural father and stepmother. At the time of the child [408]*408Melissa M.’s return to Mr. and Mrs. M. nine months ago under this court’s order, pursuant to section 392 of the Social Services Law, they requested a delay in consideration of visitation until they had had time to promote Melissa’s adjustment to them as her custodial parents; former foster parents Mr. and Mrs. L. have now renewed their motion for visitation. The question it presents as to a child’s attachments and detachments appears to be one of first impression in the controversial foster care area.

The facts that underlie the motion are, in brief, that Melissa, now 5 years old, was placed in foster care by her father when she was 8 months, together with her older brother. At that time her mother, who had separated from her father, was hospitalized for mental illness, as she had been several times before; the children had been going from relative to relative, none of whom could afford them stable care; the father, who had been a heroin addict, wanted to reconstruct his own life— to finish his vocational training and secure employment— before establishing a home for the children. For more than a year before this court’s trial to determine whether Melissa should remain in the L.s’ foster care, Mr. M., having achieved his goals and remarried, had been asking for her return. The foster care agency opposed her return because its consulting psychiatrist advised, as he testified at the hearing, that the L.s’ love and guidance of Melissa was so valuable and her attachment to them had so intensified over the four and a half years of their foster care that her separation from them would have "disastrous” psychological consequences for her; a psychiatrist of the court’s Mental Health Services concurred in this opinion, adding that adoption by the L.s’, which they greatly desired, would be in her best interests if legally possible, because they had become her "psychological parents.”

Discounting these expert opinions on the basis of the facts established adversarially at the trial (see Matter of Bennett v Jeffreys, 40 NY2d 543, 549; People v Lancaster, 65 AD2d 761; Matter of City of New York, 1 NY2d 428, 432), this court rejected the psychiatrists’ recommendation that Melissa should remain with her foster parents. Nevertheless, their careful, conscientious, and consistent evaluations as to Melissa’s need for a relationship with her former foster parents, adds to the gravity of the instant motion for visitation.

[409]*409JURISDICTION TO ORDER VISITATION

The argument advanced by the Department of Social Services that this court lacks jurisdiction to grant the motion for visitation must be rejected. It is true that the foster care review statute (Social Services Law, § 392) makes no mention of visitation and that this court is a "statutory court” of limited jurisdiction (Matter of Anonymous v People, 20 AD2d 395, 401, affd sub nom. Matter of Fish v Horn, 14 NY2d 905; Clune v Clune, 57 AD2d 256; Matter of Borkowski v Borkowski, 38 AD2d 752, 753). Nevertheless, it has the powers reasonably implied by the governing law, which in this court’s opinion include the authority here in issue, for the following reasons.

The foster care review statute explicitly grants this court extensive control of custody in foster care cases; indeed, such control was the enactment’s major purpose. Though the Appellate Division in one instance under a cognate statute disapproved the Family Court’s implication of the power to order visitation (Matter of Suzanne N. Y., 66 AD2d 723, 724), " 'visitation’ has oft been described as a form of 'quasi’ or 'limited’ custody * * * it appears only proper that we construe the 'greater’ term (custody) as encompassing the 'lesser’ term (visitation)” (Juan R. v Necta V., 55 AD2d 33, 35). In accordance with this general rule, subdivision (b) of section 651 of the Family Court Act was interpreted in Juan R. as a grant of power over visitation though the section only mentions custody. (See, also, Matter of Fernberg v Fernberg, 48 AD2d 761; Matter of Hood v Munroe, 62 AD2d 1058.)

In view of the relationship described in Juan R. between visitation and custody, it seems clear that this court can condition a custody order under section 392 of the" Social Services Law on a visitation requirement. For the court is granted broad discretion regarding supplementary orders by the provision that: "The court may make an order of protection in assistance or as a condition of any other order made under this section. The order of protection may set forth reasonable conditions of behavior to be observed for a specified time by a person or agency who is before the court.” (Social Services Law, § 392, subd 8.)

Finally, in arguing against the court’s jurisdiction to grant the motion, it is suggested that even if visitation for former foster parents could be ordered regarding a child still in foster care, such authority terminates when the child has been, like [410]*410Melissa, discharged to the biological parent. However, the section providing for foster care review provides: "The court shall possess continuing jurisdiction in proceedings under this section and, in the case of children who are continued in foster care, shall rehear the matter” (under certain circumstances). (Social Services Law, § 392, subd 10.) In view of the specific limitation in the second clause to "children in foster care,” the first clause must be interpreted to include children who are no longer in foster care. (See McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 98, 114, 231, 238; Schieffelin v Craig, 183 App Div 515, 522.)

In sum, the power to order visitation for former foster parents can, in this court’s opinion, be validly implied for a reasonable period after the child has left the foster parents’ home. In the exercise of this power, the child’s best interests must be deemed the criterion for the issuance of orders; that standard pervades foster care review, with the Legislature elevating it to unusual predominance. For best interest is the sole determinant under the statute of whether a child should remain in foster care (Social Services Law, § 392, subd 7), in contradiction to the common-law doctrine that the best interest standard only applies between parents and that a parent unless unfit has a superior right to the child over a nonparent. (See People ex rel. Kropp v Shepsky, 305 NY 465, 468-469; see, also, Social Services Law, § 384-a, subd 2, par [a].)

The power to order visitation for former foster parents in the service of a child’s best interests even after his discharge to his natural parents, seems constitutional despite the high status of the parent’s right to control the upbringing of his child (see Stanley v Illinois, 405 US 645, 651). The court’s powers in foster care review proceedings are triggered by the child’s placement in foster care for at least 18 months; thus, due to the parent’s actions the child has suffered the emotional burden of extended suspension between natural parents and foster parents as well as separation when parental custody is resumed from those who have been performing a lengthy continuous parental role.

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Bluebook (online)
101 Misc. 2d 407, 421 N.Y.S.2d 300, 1979 N.Y. Misc. LEXIS 2692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-melissa-m-nyfamct-1979.