IN RE: JUSTICE V. (2021)

2020, which, upon the finding that the subject child's biological parents permanently neglected him, the termination of their parental rights to the child, and the transfer of custody of the child to petitioner agency and the Administration for Children's Services for purposes of adoption, dismissed petitioner-appellant's petition for custody of the child or visitation, with prejudice, unanimously affirmed, without costs.

Petitioner-appellant, the child's paternal grandmother, “has no preemptive statutory or constitutional right to custody surpassing that of persons who might be selected by the agency as suitable adoptive parents” (Matter of Geneva B. v. Administration for Children's Servs., 73 A.D.3d 406, 406, 899 N.Y.S.2d 606 [1st Dept. 2010];  see Matter of Geneva B. v. Administration for Children's Servs., 73 A.D.3d 406, 406, 899 N.Y.S.2d 606 [1st Dept. 2010]).  The record shows that the child has a close relationship with the foster parent, who has loved and cared for him since he was but a few months old, while the grandmother failed to bond with the child.  She did not try to communicate with him and visited him infrequently;  after their visits, the child usually exhibited signs of stress.  When the agency indicated that it would consider her as a custodial parent on condition that she remove the child's father, who had been arrested and subsequently convicted for assault in the first degree against the child's Mother (see Matter of Richie N.V. [Stephanie M.], 174 A.D.3d 427, 428, 107 N.Y.S.3d 2 [1st Dept. 2019], lv denied 34 N.Y.3d 901, 2019 WL 5270702 [2019]), from the home, the grandmother refused.  Although she knew that the child had special needs, the grandmother also said that she would not participate in any special needs training.  In view of the foregoing, it would not be in the child's best interests to grant the grandmother custody of him (see Matter of Julianna Victoria S. [Benny William W.], 89 A.D.3d 490, 934 N.Y.S.2d 91 [1st Dept. 2011], lv denied 18 N.Y.3d 805, 2012 WL 400041 [2012]).  The record also shows that resumption of visitation between the grandmother and the child would not be in the child's best interests (see Matter of Attallah N., 65 A.D.3d 1047, 1048–1049, 884 N.Y.S.2d 870 [2d Dept. 2009], lv denied 13 N.Y.3d 714, 2010 WL 90416 [2010]).

The hearing on the custody petition was properly consolidated with the dispositional hearing at the termination proceeding (see Matter of Weiss v. Weiss, 142 A.D.3d 507, 508, 36 N.Y.S.3d 203 [2d Dept. 2016]).