IN RE: Joanne K. CART (2018)

Do former foster parents who have not had the subject children in their home for two years have standing to seek to intervene in proceedings involving their custody and placement for possible adoption? For the reasons that follow, the court concludes that they do not and that their motion to intervene must be denied.

This case involves three boys, ages 8, 6 and 3 respectively. Their parents were the subject of a neglect proceeding and while that matter was pending they were temporarily placed in the foster home of Ashton and Melissa Nelson (hereafter, “the Nelsons”), the two oldest from August 12, 2014 and the youngest shortly after his birth the following November. In 2016 the Child Protective Service investigated a report that the oldest boy had significant bruising in the area of his buttocks and issued an indicated report finding that the Nelsons had inflicted excessive corporal punishment on the child causing the bruising and other injuries. As a result, the boys were removed from the Nelsons' home on April 27, 2016 and placed with their maternal grandparents, Richard (now deceased) and Joanne Cart.

On February 22, 2017, on application of the children's then attorney and on the consent of the maternal grandmother, the children were removed from her home and ultimately placed in the home of a different foster family where they remain at the present time.

The following month, on March 23, 2017, following an administrative fair hearing, the indicated report was struck and replaced with an “unfounded” finding. However, the decision to remove the children from the Nelsons' home was left undisturbed and found to have been “not arbitrary or capricious.” It does not appear that the Nelsons have appealed from that determination.

On August 2, 2017, the boys' parents signed judicial surrenders freeing them for adoption. Fifteen days later, the maternal grandmother filed a petition seeking custody of the boys and further seeking an order directing that an older half-sibling have visitation with the boys.

By motion dated April 3, 2018, the Nelsons seek leave to intervene claiming that they have a statutory interest in the case and a right to intervene. The source of the Nelsons' claim is Social Services Law § 383 (3) which states:

Any adult husband and his adult wife ․ who, as foster parent or parents, have cared for a child continuously for a period of twelve months or more, may apply to such authorized agency for the placement of said child with them for the purpose of adoption and if said child is eligible for adoption, the agency shall give preference and first consideration to their application over all other applications for adoption placement. However, final determination of the propriety of said adoption of such foster child shall be within the sole discretion of the court, as otherwise provided therein.

Foster parents having had continuous care of a child, for more than twelve months, through an authorized agency, shall be permitted as a matter of right, as an interested party to intervene in any proceeding involving the custody of the child.

To support their claim, the Nelsons cite Andrews v. Beaudoin, 39 A.D.2d 1005, 333 N.Y.S.2d 717 (3d Dept. 1972), app dismissed 31 N.Y.2d 805, 339 N.Y.S.2d 1028, 291 N.E.2d 592 and denied 31 N.Y.2d 644, 340 N.Y.S.2d 1025, 293 N.E.2d 98 and Ferri v. County of Broome, 154 A.D.2d 771, 546 N.Y.S.2d 223 (3d Dept. 1989) but the court finds those cases to be distinguishable from the case now at bar.

Here, the two oldest boys had been in the Nelsons' care for some twenty months and the youngest from the time of his birth until he was seventeen months old. But as of the filing of the motion to intervene, the children had been out of the Nelsons' home for some two years. Section 383 (3) of the Social Services Law is clearly designed to recognize and protect the ongoing interests of foster parents who have had the children in their home for a continuous period of not less than twelve months. Where there is more than just a nominal break in the twelve-month period, the bond between the children and the foster parents is broken and the foster parents' legal interest in the children is no more. Having no standing, their application to intervene must be denied. Matter of Washington v. Stoker, 114 A.D.3d 1147, 980 N.Y.S.2d 186 (4th Dept. 2014); Matter of Minella v. Amhrein, 131 A.D.2d 578, 516 N.Y.S.2d 494 (2d Dept. 1987). See also, Matter of Brandon A., 50 A.D.3d 395, 855 N.Y.S.2d 457 (1st Dept. 2008), lv denied 11 N.Y.3d 711, 872 N.Y.S.2d 73, 900 N.E.2d 556 (2008), citing, among other cases, Matter of Bessette v. Saratoga County Commr. of Social Servs., 209 A.D.2d 838, 619 N.Y.S.2d 359 (3d Dept. 1994).

NOW, THEREFORE, it is

ORDERED, that the motion to intervene is denied.

Dennis K. McDermott, J.