CARL v. ONEIDA COUNTY DEPARTMENT OF SOCIAL SERVICES (2005)

 Petitioner appeals from an order of Family Court dismissing his petition seeking custody of his grandchildren, who had been freed for adoption by a prior order of the court.   The custody petition was filed during the pendency of the proceedings to terminate the rights of the children's biological parents.   We agree with petitioner that the court erred in failing to resolve the custody petition before freeing the children for adoption.   In these circumstances, “the custody petition should [have been] ‘considered ․ in the context of a dispositional hearing conducted on the underlying [termination] petition’ wherein the court [should have] determine[d] the best interests of the children” (Matter of Karen A.O. v. Child Protective Servs., 6 A.D.3d 1100, 1100-1101, 775 N.Y.S.2d 630, quoting Matter of Violetta K. v. Mary K., 306 A.D.2d 480, 481, 761 N.Y.S.2d 514).   We nonetheless conclude that petitioner was not prejudiced by the manner and sequence in which the court handled the custody and termination proceedings because the dispositional orders in the termination proceedings were explicitly made without prejudice to the custody petition, and because the court ultimately resolved the custody petition on its merits and based upon a determination of the children's best interests.

 We further conclude that the court did not err in determining the issue of custody.   Here, as in any other custody case, a “ ‘custody determination by the trial court must be accorded great deference and should not be disturbed where ․ it is supported by a sound and substantial basis in the record’ ” (Sorce v. Sorce, 16 A.D.3d 1077, 1077, 793 N.Y.S.2d 304;  see Matter of Longo v. Wright, 19 A.D.3d 1078, 1079, 796 N.Y.S.2d 483;  Matter of Garland v. Goodwin, 13 A.D.3d 1059, 1059-1060, 786 N.Y.S.2d 770).   The record supports the court's determination that it is in the best interests of the children to remain in the custody of the Oneida County Department of Social Services (respondent) and the prospective adoptive parents rather than to be placed in the custody of petitioner (see Violetta K., 306 A.D.2d at 481, 761 N.Y.S.2d 514;  Matter of Gladys B. v. Albany County Dept. of Social Servs., 274 A.D.2d 689, 690, 710 N.Y.S.2d 725;  Matter of Tiffany Malika B., 215 A.D.2d 200, 626 N.Y.S.2d 184, lv. denied 86 N.Y.2d 707, 632 N.Y.S.2d 501, 656 N.E.2d 600).

Finally, we note that the challenge by respondent to the visitation provision of the order is not properly before us in the absence of a cross appeal by respondent.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: