Arnetta S. v. Commissioner of Social Services

— Order, Family Court, New York County (Ruth Jane Zuckerman, J.), entered December 13, 1991, which granted the motion by respondent Commissioner of Social Services of the City of New York (the "Commissioner”) to dismiss the petition seeking custody of the petitioner’s paternal niece (the "child”), unanimously affirmed, without costs. Order of the same court and Justice, entered July 12, 1991, terminating the rights of the child’s biological parents on abandonment grounds and committing the custody and guardianship of the child to the Commissioner, unanimously affirmed, without costs. The Family Court properly declined to exercise jurisdiction over a petition by the putative biological aunt seeking mere custody of the child, her paternal niece, an abandoned child in a pre-adoptive foster home whose custody and guardianship have been committed to the Commissioner for purposes of adoption since "[t]o exercise jurisdiction would circumvent the clear public policy of this State, which is, that a permanent home should be found for every child who has been determined to be abandoned and the child’s custody and guardianship awarded to the commissioner.” (Matter of Smith v Lascaris, 106 Misc 2d 1044; see, Social Services Law § 384-b [1] [b].) After custody and guardianship of a child have been awarded to an authorized agency in an abandonment proceeding pursuant to Social Services Law § 384-b (4) (b), a court should not exercise its jurisdiction over a petition filed by a private person which seeks custody of that child (Matter of Elaine R. v Department of Social Servs., 139 Misc 2d 694, 697; Matter of Sierra H., 138 Misc 2d 908). Moreover, the precise issue before us was raised and rejected in the dispositional phase of the termination hearing. An appeal by the putative father, petitioner’s brother, was abandoned. [520] We have reviewed petitioner’s remaining claims and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Wallach and Ross, JJ.