The Second Department, reversing Family Court, determined the child, Tabitha, should not have been removed from her foster home and placed with her maternal grandmother:
… T]he determination of the Family Court that it was in Tabitha’s best interests to be removed from her foster home, where she had resided for over four years, and to be placed in the kinship foster home of the maternal grandmother lacks the requisite sound and substantial basis in the record … . In determining the best interests of the child, “[t]here is no presumption that the children’s best interests will be better served by a return to a family member” … . Indeed, ” Social Services Law § 383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody'”… . “Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart” … . Here, the court gave inappropriate weight to this preference, as Tabitha and her brother only shared a household with the maternal grandmother for the first five months of Tabitha’s life (see id.). Moreover, the record reveals that Tabitha has closely bonded with her foster family and remains healthy, happy, and well-provided for … . Therefore, the court erred in determining that it was in Tabitha’s best interests to be moved to the kinship foster home of the maternal grandmother rather than remain with her foster mother for the purpose of adoption, which the record shows is the intent of the foster mother … . Matter of Tabitha T. S. M. (Tracee L. M.–Candace E.), 2018 NY Slip Op 01468, Second Dept 3-7-18
FAMILY LAW (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/CUSTODY (FAMILY LAW, PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/FOSTER CARE (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))