Bryant M. v. Kelly O.

In a proceeding pursuant to Social Services Law § 383-c for the judicial surrender of a child in foster care and a related custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Freundlich, J.), dated October 12, 2005, which denied his petition in proceeding No. 2, inter alia, for a change of custody of the subject child from the Suffolk County Department of Social Services to the child’s paternal grandmother and a paternal aunt, and continued her placement with pre-adoptive foster parents. Ordered that the order is affirmed, without costs or disbursements. The father, who is incarcerated, petitioned the Family Court, inter alia, for a change of custody to place the subject child with her paternal grandmother and a paternal aunt until his release from jail. On October 7, 2005 the child’s mother surrendered her parental rights in a reldted judicial surrender proceeding. Approximately 1½ hours later, the father was produced in court on his petition. His mother and sister also were present. The father was assigned counsel and, after spending approximately 45 minutes with counsel, off the record, the instant proceeding concluded without any testimony being heard, and the court scheduled a permanency hearing in a separate proceeding for the adoption of the child. On October 12, 2005 the Family Court, inter alia, dismissed the father’s petition in the custody proceeding. The father appeals. We affirm. [952] The standard to be applied in a change of custody determination is the best interest of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]; Matter of Takylia B., 24 AD3d 759 [2005]). The Family Court had before it sufficient information to make a custody determination in the child’s best interest (see Friederwitzer v Friederwitzer, supra at 94-95; Matter of David B., 2 AD3d 725 [2003]). The subject child, who was 1½ years old when the Family Court made the challenged determination, has lived with her foster family since she was less than one month old. She also resides with her half brother, who was previously adopted into the same foster family. The foster parents are the only parents the child has ever known. It is in the child’s best interest to continue that stable relationship, rather than be separated from her foster parents in order to live with her nonparent relatives (see Matter of Peter L., 59 NY2d 513, 520 [1983]; Matter of Takylia B., supra; Matter of Jahisha Jaysawnna J., 22 AD3d 383 [2005]; Matter of Ella J. v Iva J., 4 AD3d 527 [2004]; Matter of Violetta K. v Mary K., 306 AD2d 480, 481 [2003]). We do not agree with the position of our dissenting colleague that we cannot determine, on this record, whether the Family Court properly dismissed the father’s petition, inter alia, for a change of custody. Under the circumstances of this case, the Family Court properly dismissed the father’s petition, without a full evidentiary hearing, since he failed to meet his burden of making some evidentiary showing sufficient to warrant such a hearing (see Matter of Hom v Zullo, 7 AD3d 624 [2004]; Matter of Simmons v Budney, 5 AD3d 389 [2004]; Itchkow v Itchkow, 275 AD2d 442 [2000]; Matter of Coutsoukis v Samora, 265 AD2d 482, 483 [1999]). Similarly, the father failed to make an evidentiary showing of, or even allege, a previously uncontemplated change of circumstances sufficient to warrant a hearing as to whether, under the totality of the circumstances, it would be in the child’s best interest to live with her paternal grandmother and paternal aunt until her father’s eventual release from jail (see Neftleberg v Neftleberg, 38 AD3d 864 [2007]). In support of his petition in the custody proceeding, the father proffered only a handwritten note of unknown origin indicating that he wanted the child to reside with his mother and sister, who resided together in the same household. However, the paternal grandmother and paternal aunt were not parties to this proceeding, and did not formally apply for this relief (see Nir v Nir, 172 AD2d 651, 653 [1991]; see also Matter of Smith v Wood, 38 AD3d 561, 562 [2007]). Thus, it would have been error for the Family Court to award them custody (id.). In addition, [953] the father failed to plead or proffer any evidence as to how he planned to provide for the child, other than summarily expressing a desire to have her reside with his family members. Under these circumstances, there is ample support in the record to affirm the Family Court’s dismissal of the father’s petition in the custody proceeding without a hearing. Consequently, contrary to our dissenting colleague’s position, the absence from the record on this appeal of a transcript of any hearing does not require reversal. Moreover, the Family Court’s reference to the permanency hearing scheduled for a future date in the separate adoption proceeding, during which the father would be entitled to be heard on the issue of the child’s best interest (see Domestic Relations Law § 111-a; Social Services Law § 384-c), was not relevant to its determination of the instant petition. Skelos, Dillon and McCarthy, JJ., concur.