Alfredo S. v. Nassau County Department of Social Services
1991 N.Y. App. Div. LEXIS 4443, 568 N.Y.S.2d 123, 172 A.D.2d 528 (1991)
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Rule of Law:
In a custody dispute between a natural parent and a non-parent, the non-parent must first prove the existence of extraordinary circumstances (such as surrender, abandonment, persistent neglect, or unfitness) before the court may inquire into the best interests of the child. A prolonged separation between parent and child caused by the slow pace of litigation, rather than the parent's lack of interest, does not constitute an extraordinary circumstance.
Facts:
- The petitioner, Alfredo S., is the natural father of Lorraine S., a child born out of wedlock on July 31, 1988.
- At birth, Lorraine tested positive for cocaine and exhibited withdrawal symptoms due to her mother's prenatal drug addiction.
- Immediately after the birth, Alfredo S. consented to the child's temporary placement with the Nassau County Department of Social Services (the Department).
- Alfredo S. admitted to caseworkers that he had been an occasional recreational user of cocaine but claimed he had stopped four months prior to the child's birth.
- From almost the day of the child's birth, Alfredo S. persistently sought to obtain custody.
- Alfredo S. was gainfully employed and lived in a stable, three-bedroom home described as 'neat and clean' with his mother and sister, who had agreed to help care for Lorraine.
Procedural Posture:
- Neglect proceedings were commenced against the natural mother, resulting in a finding of neglect against her.
- The natural father, Alfredo S., filed a petition for an order of filiation and for custody.
- The Family Court entered an order of filiation adjudging Alfredo S. to be the child's father.
- Alfredo S. (petitioner) commenced a custody proceeding against the Nassau County Department of Social Services (respondent) in the Family Court, Nassau County.
- After a hearing, the Family Court dismissed the father's petition, finding he would not be a proper custodian and the child would be at risk.
- The petitioner father appealed the Family Court's order of dismissal to this intermediate appellate court.
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Issue:
Do a father's past occasional drug use, the mother's prenatal drug use resulting in the child's positive cocaine toxicology at birth, and the resulting separation of parent and child due to state custody constitute 'extraordinary circumstances' sufficient to trigger a best interests of the child analysis and displace the natural parent's superior right to custody?
Opinions:
Majority - Per curiam (Thompson, J.P., Kunzeman and Sullivan, JJ., concur)
No. The circumstances presented do not constitute 'extraordinary circumstances' sufficient to trigger a best interests inquiry and interfere with a natural parent's superior right to custody. The law establishes a two-step analysis in custody disputes between a parent and a non-parent. First, the non-parent has the burden to show 'surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.' Only after this high threshold is met can the court proceed to the second step, an inquiry into the child's best interests. Here, the Department failed to meet its burden. The prolonged separation between the father and child was attributable to the pace of legal proceedings, not the father's lack of interest, as he persistently sought custody from the outset. The father's admission to past occasional drug use, with no evidence of current addiction or impairment, is insufficient to establish unfitness. The court cannot attribute the mother's neglect to the father to find extraordinary circumstances.
Concurring-in-part-and-dissenting-in-part - Harwood, J.
Yes. The combination of unfortunate circumstances does rise to the level of 'extraordinary circumstances,' thus triggering the obligation to inquire into the child's best interests. While agreeing that the 'extraordinary circumstances' standard should be narrowly applied, the facts here meet that threshold. These facts include the circumstances of Lorraine's birth with a positive toxicology for cocaine, the petitioner's admitted drug use, his initial consent to relinquish custody, and his long-term lack of interest in his two other children with the same mother. Therefore, the matter should not be decided outright but should be remitted to the Family Court for a full hearing on the child's best interests.
Concurring-in-part-and-dissenting-in-part - Miller, J.
Yes. Extraordinary circumstances clearly exist, and the court's primary focus should be the safety and rights of the child, not just the preservation of parental rights. The very fact that a child is born addicted to an illegal narcotic should be deemed an exceptional circumstance warranting state interference. This is compounded by the petitioner's own admitted drug use during the mother's pregnancy, his ongoing relationship with the drug-addicted mother that produced three neglected children, and his unstable employment history. Given these significant risk factors, the court has a 'parens patriae' duty to the child. Therefore, the case must be remitted for a full evidentiary hearing on the child's best interests, as the current record is inadequate to award custody to the father.
Analysis:
This decision strongly reaffirms the high legal standard required to interfere with a natural parent's fundamental right to custody. It establishes that the 'extraordinary circumstances' test is a strict threshold inquiry, preventing courts from engaging in a subjective 'best interests' analysis unless severe parental deficiency is proven by the non-parent. By explicitly rejecting 'prolonged separation due to litigation' as an extraordinary circumstance, the court prevents the state or other parties from gaining a tactical advantage through procedural delays. The case underscores the tension between protecting parental rights and the state's 'parens patriae' power to protect children, with the majority heavily favoring the former until a clear and high burden of proof is met.
