In re St. Christopher-Ottillie

307 A.D.2d 360, 763 N.Y.S.2d 76
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 28, 2003
StatusPublished
Cited by1 cases

This text of 307 A.D.2d 360 (In re St. Christopher-Ottillie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re St. Christopher-Ottillie, 307 A.D.2d 360, 763 N.Y.S.2d 76 (N.Y. Ct. App. 2003).

Opinion

In a proceeding pursuant to Family Court Act article 10, (1) the nonparty Law Guardian appeals, [361]*361and the interveners Carmen P. and Felix P. separately appeal, as limited by their briefs, from so much of an order of disposition of the Family Court, Kings County (Elkins, J.) dated May 24, 2001, as, after a dispositional hearing, directed the child’s adoption by the current foster parents, Maryann G. and Rafael M., and (2) the nonparty Law Guardian appeals, as limited by her brief, from so much of an order of the same court dated July 29, 2002, as, after a hearing pursuant to Family Court Act § 1055-a, approved the plan for adoption.

Ordered that the orders are reversed insofar as appealed from, on the facts and as a matter of discretion, without costs or disbursements, and the matter is remitted for a new hearing in accordance herewith, to be conducted with all convenient speed.

The Puerto Rican Association for Community Affairs had planned to place custody of a young child born on October 15, 1998, with the child’s aunt and uncle, the sister and brother-in-law of the child’s natural mother, shortly after the child’s birth, so that he could be raised by them together with his four older siblings (bom between 1986 and 1995 or 1996), who had already been placed in the custody of the aunt and uncle and who have since been adopted by them. There is little doubt that it would have been in the best interests of the child if this plan had, in fact, been carried out. However, as a result of what one social worker witness described as “agency mishaps,” the transfer of custody was delayed, and in the meantime the child naturally formed a strong attachment to the man and woman who were serving as his foster parents while legal custody was assumed by a new agency, and who knew that the child was meant to eventually be placed with his aunt and uncle.

The child formed a powerful bond with the foster parents and a change in primary physical custody of the child would, in the short term, cause the child to experience significant trauma. For example, the record supports the conclusion that, during the year 2000, when the child was approximately 14 to 26 months old, the thought of impending separation from his foster parents in connection with the schedule of visitation that had been established to enhance the child’s relationship with his aunt and uncle generated a significant amount of trauma.

The central problem in this case is in determining whether this short-term trauma would have a lasting impact, and whether it would be more than compensated for by the long-term advantages that the child would experience for the [362]*362remainder of his life as the result of unification with his brothers and sisters. A social worker retained by the foster parents and a social worker for the Law Guardian gave conflicting or inconclusive opinions as to the importance of “sibling reunification,” and as to a child’s ability, at various stages of development, to tolerate even temporary separation from his or her “psychological parents,” or to make a transition from such parents to other parents without permanent trauma.

The child is undeniably fortunate to be a recipient of great affection and solicitude in both households, and has arrived at the point where, as appropriately stated by the Family Court, he could be described as benefitting from the rule that “two families are better than one.” The problem arises only because, in accordance with law, one of the two families must be recognized as the one with legal custody pending the child’s adoption. The problem is compounded by the uncertainty as to whether the child’s adoption by the foster parents would be approved.

Given the unusual facts of this case, a new hearing is warranted in light of the need to obtain further, and most importantly, independent, expert evidence. It is important that, in a case that raises unusual questions, such as those presented here, there be evidence derived from an independent specialist with appropriate expertise. As the Family Court noted, the social workers who expressed their viewpoints were not psychologists. The Family Court recognized that such evidence would be helpful at various points. However, no truly independent psychological evidence was obtained during the course of the hearings.

As early as May 25, 2000, in colloquy preceding the dispositional hearing, the Family Court ascertained that there was no specialist who was familiar with the child’s circumstances, and expressed an interest in obtaining an expert’s evaluation. During the latter course of the dispositional hearing, on February 16, 2001, the attorney for the foster parents referred to a pending evaluation of the child by a psychologist. Counsel acknowledged that the ultimate result of such evaluation might be favorable to his adversaries. The Family Court initially denied counsel’s request for an adjournment based on the need to arrange for this psychologist to testify, and the hearing proceeded. Toward the end of the proceedings of that day, after witnesses referred to the child’s having tantrums, and banging his head against the wall, the court expressed a desire to have a psychologist evaluate the significance of these circumstances. Counsel advised that there was an ongoing evaluation for early intervention, but was unable to say when it would be completed.

[363]*363At a subsequent hearing pursuant to Family Court Act § 1055-a it was revealed that a psychological evaluation of the child had been conducted at Mount Sinai Hospital in November 2001, but that the report of the results had been sent to the foster parents. It does not seem that this report was ever obtained or reviewed by the Family Court. Subsequently, it was stated that an evaluation had been performed at Beth Israel Hospital in March 2002. The record contains no report of the results of this apparently different evaluation. The Law Guardian who represented the child during the hearings in this case interpreted a ruling made by the Family Court during the course of the proceedings of May 2, 2002, as authorizing her to arrange for a forensic examination of the child with the cooperation of the foster parents and the aunt and the uncle. The Family Court, in its decision written in connection with its order dated December 13, 2002, which is under review in a companion appeal (see Matter of Baby Boy R., 307 AD2d 360 [2003] [decided herewith), and of which we take judicial notice (see Matter of Michael B., 80 NY2d 299, 317-318 [1992]; Matter of Allen v Strough, 301 AD2d 11, 15 [2002]), referred to its prior refusal to order “new forensics.” Nonetheless, expert evaluations of the child, the foster parents, the aunt, and the uncle were later arranged by the Law Guardian.

To the extent that they are revealed in the record of the companion appeal (see Matter of Baby Boy R., supra), we may also take notice of the circumstances surrounding the subsequent evaluation of the child, foster parents, aunt, and uncle that was arranged without the benefit of court order (see Matter of Michael B., supra; Matter of Allen v Strough, supra).

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Related

In re Baby Boy R. Norma Iris R.
307 A.D.2d 360 (Appellate Division of the Supreme Court of New York, 2003)

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Bluebook (online)
307 A.D.2d 360, 763 N.Y.S.2d 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-st-christopher-ottillie-nyappdiv-2003.