Landaverde v. Howie

OPINION OF THE COURT Asch, J. After a full exposition of the facts, the dissent has decided that Christina Landaverde, the natural mother of the child herein, should lose her right to her son because of the “extraordinary circumstances” (see Matter of Bennett v Jeffreys, 40 NY2d 543) present in this case. — 30 — The dissent cites the “extraordinary circumstances” as being her “poverty * * * only when coupled with all the other inadequacies apparent in her situation.” These include the circumstances that she speaks little English, is an alien subject to deportation and “has no real notion of what she will do with the boy, or how she will care for him.” The minority has sought a responsible answer to a painful and complex problem, so important to all the parties, especially to the young child. Yet, it is difficult to avoid measuring the relationship of parent and child by our own North American standards of culture, language and nature of family constellation. Very wisely, the law restrains the court from imposing its own values as to what is best for the child except under the most unusual of situations. The Court of Appeals has laid down the rule that “[i]ntervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstances which would drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interests of the child and to order a custodial disposition on that ground” (Matter of Bennett v Jeffreys, supra, at p 549). Both the Family Court and this court have expressly found that there has been no surrender, abandonment, persistent neglect or unfitness' of the mother. This mother has ever been very devoted, dedicated to the struggle to regain her child — overcoming her lack of language and her paucity of funds, by her trek across America, by her persistent visits to the child, as well as by her legal efforts. The long chronology documented by the dissent as to the extensive discussions and meetings where petitioner “expressed her determination to have the Howies adopt her baby” all took place before the birth of the child while she was afraid and confused about the future. The document she signed titled “Placement for Adoption” after the birth — 31 — of the child contains the following unequivocal clause: “I understand that this declaration is not a consent to adoptian and that in signing this document I retain my legal rights to the custody, control, earnings and support of said child.” All the lawyers and social workers assured her that she was not giving away her baby and was reserving her option to change her mind. Ms. Landaverde communicated with Mr. Manjarrez, the Howies’ California attorney, in August, 1980, within a scant three weeks of the birth of her son, and again in October, 1980, both personally and through counsel, requesting and demanding the return of her infant. The delay between that demand and petitioner’s arrival in New York to commence this action was characterized by the Family Court as due in part to her California attorney’s futile plan to secure the child’s return through the California courts, plus her need to save money from her wages for the trip and to arrange for maintenance and legal services in New York. Her petition to regain custody of her son was brought in June, 1981, a few weeks after she arrived in New York. The trial dragged on over nine months. The appellants and our dissenting brethren urge that the child has spent the entire period of his life — nearly three years — with the Howies. But this delay has been largely caused by protracted court proceedings. In this regard, it is certainly significant that both Susan and James Howie stated in October of 1980 that they were determined not to return the child to Ms. Landaverde whether or not the consents were ever signed. However, the undisputed chronology above shows that the mother has been seeking the return of her son since he was three weeks old. What occurred in this case tracks what the Court of Appeals said in one before it. “[T]here is no basis on this record for finding such a prolonged interruption of custody as to constitute an extraordinary circumstance. As this court recently noted, where a period of separation is attributable to the parent’s efforts to regain custody lawfully, that separation is entitled to little, if any, consideration (Matter of Sanjivini K., 47 NY2d 374, 381-382). Although Sanjivini involved termination of parental rights, rather than custody, the court — 32 — also stated that 'it is doubtful whether it could be found to be in the child’s best interests to deny her [parent’s] persistent demands for custody simply because it took so long * * * to obtain it legally’ (47 NY2d, at p 382). Since a large portion of the separation here occurred during the father’s informal and formal attempts to obtain custody, the custodial disruption does not rise to the level of an extraordinary circumstance. Quite bluntly, a child is not a piece of property over whom title may be acquired by adverse possession.” (Matter of Dickson v Lascaris, 53 NY2d 204, 209-210.) The minority attempts to make the difficulty that petitioner might or would have in working and taking care of her child an “exceptional circumstance”. The petitioner works as a domestic. There are literally thousands of single working mothers in this city who are raising young children. Certainly, her financial circumstances should not be held against her. If we resort to the common experience of mankind, it is quite apparent that poverty has rarely been a disqualification for successful parenting. The mother speaks little English. I doubt the fact that his mother speaks Spanish will weigh that heavily with someone not quite three. And if she is compelled to return to El Salvador without her son, it would mean that she will be permanently separated from him. He would be exiled from his natural family and his cultural heritage. In this context, it seems significant to note that the infant Mauricio has become Nicholas Howie. Certainly, even in El Salvador, undoubtedly there are children who flourish. It is even argued by some that New York is a more dangerous place to grow up. In addition, I note that the mother, according to the testimony, has been visiting her son regularly once a week, and the “trauma” of her gaining custody might not be quite as serious as it is argued. The dissent emphasizes the testimony of Drs. Porter and Turezki, the former the Howies’ pediatrician and the latter a child psychiatrist retained by the Howies. Dr. Turezki did testify that it was “certain that there would be negative short term consequences.” However, he conceded on cross-examination that there is a possibility the child could be perfectly normal without — 33 — therapy if separated from the Howies. In addition, Dr. Turezki, who had been testifying about the theoretical consequences of a change in custody, stated: “I only evidence I do have [sic] is that this child is securely attached in a positive home.” and in response to the next question “[t]here is no evidence you have seen that this child in this point of life would suffer any detrimental consequences? [if returned to Ms. Landaverde]”, the psychiatrist responded “That is right”. The petitioner introduced no psychiatric or social work testimony. All the psychiatric material and the testimony of the trained social worker were introduced by the Howies. With respect to this we have the caveat of the Court of Appeals: “In custody matters parties and courts may be very dependent on the auxiliary services of psychiatrists, psychologists, and trained social workers. This is good. But it may be an evil when the dependence is too obsequious or routine or the experts too casual. Particularly important is this caution where one or both parties may not have the means to retain their own experts and where publicly compensated experts or experts compensated by only one side have uncurbed leave to express opinions which may be subjective or are not narrowly controlled by the underlying facts” (Matter of Bennett v Jeffreys, supra, at p 549). The dissent also relies on the “great confusion” of Ms. Landaverde “over her plans for the child”, adverting to the fact that she had set forth three alternatives, one of which — going back to El Salvador — was abandoned, the second — marrying the father of the child — is no longer feasible, and the third — moving in with the father’s sister in San Francisco — being deemed “ill-conceived and badly formulated”. However, it must be remembered that, as noted, the trial herein lasted nine months and obviously petitioner was exploring different avenues of best caring for her child. In any event, as noted, there were no “extraordinary circumstances, narrowly categorized” as required by the Court of Appeals, and thus “it is not within the power of a court * * * to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition” (Matter of Bennett v Jeffreys, supra, at p 545; emphasis added). — 34 — If we accept the premise that the standard of extraordinary circumstances has been met in this case, then there would be virtually no case where such circumstances did not exist. In effect, what the dissent postulates is a standard so all-inclusive that the sole and only determinative in any custody dispute would be the best interests of the child without any regard for the rights, interests, etc., of an innocent parent. This standard is not only unconstitutional (see Stanley v Illinois, 405 US 645, 651), but contrary to the law both in its historical foundation and in its present application (see Matter of Bennett v Jeffreys, supra; Matter of Dickson v Lascaris, supra). We are instructed by the Court of Appeals that: “Historically, it has been the law in this State that, as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity (e.g., Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra; People ex rel. Anonymous v Anonymous, 10 NY2d 332, 335; People ex rel. Kropp v Shepsky, 305 NY 465, 468-469). Although earlier characterized as involving the ‘primacy of parental rights’ (People ex rel. Kropp v Shepsky, supra, at p 469; People ex rel. Portnoy v Strasser, 303 NY 539), the rule in actuality is founded upon the ‘generally accepted view that a child’s best interest [is to be] raised by its parent unless the parent is disqualified by gross misconduct’ (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204). Rather than artificially exalting the ‘rights’ of the parent at the expense of the well-being of the child, this rule fosters both interests by recognizing that they ordinarily converge” (Matter of Dickson v Lascaris, supra, at p 208). If the court were to adopt the position urged by the dissent, at best the boy’s status would be ambiguous for the rest of his life. The Howies have been granted no more than custody. Their petition to formally adopt this child has been denied and it does not seem likely that as a matter of law they could ever succeed. Mauricio would be severed from his natural mother and yet not be related to the Howies as an adopted son. What King Solomon only threatened to accomplish by a sword, the court would be accomplishing by legal fiat. — 35 — Accordingly, the orders of the Family Court (Nanette Dembitz, J.), entered on March 31,1982, May 28,1982 and August 20, 1982, which granted the petition of Christina Landaverde for custody of her son and denied the petition of James and Susan Howie for custody or adoption, should be affirmed, without costs or disbursements.