Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

(Cite as: 64 A.D.3d 977, 882 N.Y.S.2d 580)

Supreme Court, Appellate Division, Third Department, New York.

In the Matter of THERESA BB., Appellant,

RYAN DD., Respondent,

and

St. Regis Mohawk Tribe Department of Social Services, Respondent.

July 9, 2009.

**580 John A. Cirando, Syracuse, for appellant.

David E. LaPlant, Malone, for St. Regis Mohawk Tribe Department of Social Services, respondent.

David P. Dylis, Law Guardian, Ballston Spa.

Before: MERCURE, J.P., ROSE, KANE, KAVANAGH and GARRY, JJ.

MERCURE, J.P.

*977 Appeal from an order of the Family Court of St. Lawrence County (Potter, J.), entered June 12, 2008, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for custody of her grandchildren.

In January 2007, the subject Native American children were removed from their mother's care after a neglect petition was filed against her. Upon a finding of neglect, the children were placed with respondent St. Regis Mohawk Tribe Department of Social Services (hereinafter DSS).FN1 **581 DSS, in turn, placed the children in the care of foster parents.

FN1. DSS notes that petitioner incorrectly named the St. Regis Mohawk Tribal Council rather than DSS as a party respondent in the notice of appeal. Given the absence of any prejudice to DSS resulting from this clerical defect, we will disregard it and treat the notice of appeal as containing the correct caption (see CPLR 2001; Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 606, 775 N.Y.S.2d 753, 807 N.E.2d 864 [2004]; Broughton v. Dona, 63 A.D.2d 1101, 1101, 406 N.Y.S.2d 581 [1978], appeals dismissed 46 N.Y.2d 1013, 416 N.Y.S.2d 244, 389 N.E.2d 839 [1979], 46 N.Y.2d 1074, 416 N.Y.S.2d 1030, 390 N.E.2d 319 [1979], lv. denied 47 N.Y.2d 709, 419 N.Y.S.2d 1026, 393 N.E.2d 1049 [1979] ).

*978 The mother died in November 2007 and petitioner, the children's maternal grandmother, thereafter commenced this custody proceeding. The father, respondent Ryan DD., subsequently surrendered his parental rights on the condition that the children be adopted by their foster parents. Immediately following that conditional surrender, Family Court dismissed the instant proceeding without a hearing, and petitioner now appeals.

We affirm. Petitioner has no special right to custody of her grandchildren that would allow her “to override the right of the natural parent to surrender the child to a public agency and to confer on it the right to consent to the adoption of the child” (Matter of Peter L., 59 N.Y.2d 513, 520, 466 N.Y.S.2d 251, 453 N.E.2d 480 [1983]; see Matter of Sickler v. Roach, 169 A.D.2d 874, 874-875, 564 N.Y.S.2d 603 [1991] ). Nor is petitioner entitled “to override a decision by [DSS] to place the child[ren] for adoption with adoptive parents to be selected by the agency” (Matter of Peter L., 59 N.Y.2d at 516, 466 N.Y.S.2d 251, 453 N.E.2d 480). Accordingly, once the father surrendered his parental rights to DSS for the purposes of adoption, Family Court was deprived of authority to entertain this custody proceeding and appropriately dismissed it (see Matter of Gerald BB., 51 A.D.3d 1081, 1086, 857 N.Y.S.2d 314 [2008], lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008]; Matter of Linda S. v. Krishnia S., 50 A.D.3d 805, 806, 856 N.Y.S.2d 174 [2008]; Matter of Genoria SS. v. Christina TT., 233 A.D.2d 827, 828, 650 N.Y.S.2d 830 [1996], lv. denied 89 N.Y.2d 811, 657 N.Y.S.2d 403, 679 N.E.2d 642 [1997] ). Should petitioner still seek custody of the children, her sole remedy is to seek adoption (see Matter of Herbert PP. v. Chenango County Dept. of Social Servs., 299 A.D.2d 780, 781, 751 N.Y.S.2d 96 [2002] ).

Petitioner's remaining argument that Family Court erred in not complying with the Indian Child Welfare Act (see 25 USC § 1901 et seq.) is unpreserved for our review (see McCleary v. City of Glens Falls, 32 A.D.3d 605, 607, 819 N.Y.S.2d 607 [2006]; Matter of Joseph ZZ., 245 A.D.2d 881, 884, 666 N.Y.S.2d 827 [1997], lv. denied 91 N.Y.2d 810, 670 N.Y.S.2d 404, 693 N.E.2d 751 [1998] ).

ORDERED that the order is affirmed, without costs.

ROSE, KANE, KAVANAGH and GARRY, JJ., concur.

N.Y.A.D. 3 Dept.,2009.

Theresa BB. v. Ryan DD.

64 A.D.3d 977, 882 N.Y.S.2d 580, 2009 N.Y. Slip Op. 05726