Opinion
February 21, 1991
Appeal from the Family Court, New York County (Sheldon Rand, J.).
Appellant, the maternal grandmother of the infant was granted permission to intervene in the dispositional phase of these proceedings, which were brought to terminate the custody and guardianship rights of the natural parents upon the ground of abandonment, and to free the child for adoption by the foster parent. The natural parents have not appeared. The petition sought to have the court place the child in appellant's custody.
Appellant's claim to a pre-emptive right to custody as the natural grandparent of the child must be rejected upon the statutory grounds urged, as contrary to the definitive law in this State. (See, Matter of Peter L., 59 N.Y.2d 513.) We find that appellant's constitutional arguments were not presented in the court below and thus, have not properly been preserved for this Court's review. (See, Matter of Peter L., supra.) Moreover, were we to consider such arguments, in the interest of justice, we would find them to be unpersuasive and without merit, inasmuch as appellant's reliance upon the United States Supreme Court decision in Moore v East Cleveland ( 431 U.S. 494) is misplaced and does not support the mandate of a pre-emptive custodial right in the grandparents of children placed voluntarily with an authorized agency.
We decline to modify the order to provide for appellant's visitation. Appellant failed to request such relief in the Court below and there is no evidence upon the record to establish that such visitation would be consistent with the best interest of the child. Appellant, however, is not precluded from seeking such relief in the future. (See, Family Ct Act § 651.)
Concur — Sullivan, J.P., Milonas, Ross, Asch and Kassal, JJ.