In the Matter of Brooke S. B., Respondent,v.Elizabeth A. C.C., Respondent.--------------------------------R. Thomas Rankin, Esq., Attorney for the Child, Appellant.

Brief

N.Y.June 2, 2016

Nos. APL-2015-00235, APL-2015-00236 Court of Appeals STATE OF NEW YORK ESTRELLITA A., Petitioner-Respondent, —against— JENNIFER L.D., Respondent-Appellant. BROOKE S.B., Petitioner-Respondent, —against— ELIZABETH A.C.C., Respondent-Respondent. ______________________ R. THOMAS RANKIN, ATTORNEY FOR THE CHILD, Appellant. BRIEF AMICUS CURIAE OF THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS’ NEW YORK STATE CHAPTER, AND THE NATIONAL ASSOCIATION OF SOCIAL WORKERS’ NEW YORK CITY CHAPTER IN SUPPORT OF PETITIONER-RESPONDENT CLEARY GOTTLIEB STEEN & HAMILTON LLP Carmine D. Boccuzzi Daniel D. Queen One Liberty Plaza New York, New York 10006 (212) 225-2000 Counsel for Amici Curiae National Association of Social Workers, National Association of Social Workers’ New York State Chapter, and National Association of Social Workers’ New York City Chapter March 18, 2016 - i - TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI CURIAE ............................................................................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 4 ARGUMENT ............................................................................................................. 7 I. Parent-Child Attachment Relationships Are Critical to a Child’s Healthy Development. ........................................................................... 7 II. The Absence of a Biological or Adoptive Connection Between Brooke S.B. and Estrellita A. and the Children Did Not Affect the Development of Attachment Relationships................................... 10 III. Terminating the Children’s Attachment Relationships with Brooke S.B. and Estrellita A. Would Result in Emotional Harm to the Children ..................................................................................... 14 IV. The Children’s Health and Welfare Are Best Served by Nurturing and Maintaining Their Relationships with Brooke S.B. and Estrellita A. as Well as Their Biological Mothers................ 17 CONCLUSION ........................................................................................................ 19 - ii - TABLE OF AUTHORITIES Cases Arriaga v. Dukoff, 123 A.D.3d 1023 (2d Dep’t 2014) .................................................................... 4, 6 Barone v. Chapman-Cleland, 129 A.D.3d 1578 (4th Dep’t 2015) ............................................................... 4-5, 6 Chatterjee v. King, 280 P.3d 283 (N.M. 2012) .................................................................................. 11 Debra H. v Janice R., 14 N.Y.3d 576 (N.Y. 2010) .................................................................................. 5 Estrellita A. v. Jennifer L.D., 40 Misc. 3d 219 (Fam. Ct., Suffolk Cty. 2013) .................................................... 4 In the Matter of Alison D. v. Virginia M., 77 N.Y.2d 651 (N.Y. 1991) .................................................................................. 5 Jaffee v. Redmond, 518 U.S. 1 (1996) .................................................................................................. 1 Kennedy v. Louisiana, 554 U.S. 407 (2008) .............................................................................................. 1 Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009) .............................................................................................. 1 Tropea v. Tropea, 87 N.Y.2d 727 (N.Y. 1996) .................................................................................. 5 Other Authorities Am. Acad. of Pediatrics, Developmental Issues for Young Children in Foster Care, 106 Pediatrics 1145 (2000) ........................................................... 14 - iii - Am. Acad. of Pediatrics, Policy Statement: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 339 (2002) ............................... 18 Am. Acad. of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002) ............................... 12 Am. Acad. of Pediatrics, Technical Report: Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian, 131 Pediatrics e1374 (2013) .................................................................................................................. 12 Ana H. Marty et al., Supporting Secure Parent-Child Attachments: The Role of the Non-parental Caregiver, 175 Early Childhood Dev. & Care 271 (2005) ..................................................................................................... 11, 15 Anne Brewaeys et al., Donor Insemination: Child Development and Family Functioning in Lesbian Mother Families, 12 Human Reprod. 1349 (1997) .................................................................................................................. 13 Beverly James, Handbook for Treatment of Attachment-Trauma Problems in Children 2 (1994) .................................................................................................. 7 Bruce D. Perry et al., Childhood Trauma, the Neurobiology of Adaptation, and “Use-dependent” Development of the Brain: How “States” Become “Traits”, 16 Infant Mental Health J. 271 (1995) ............................................... 14 Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025 (1992) ......................................................................................................... 18 Daniel J. Siegel, The Developing Mind: How Relationships and the Brain Interact to Shape Who We Are (2d ed. 2012) ...................................................... 8 Danielle H. Dallaire & Marsha Weinraub, Infant-Mother Attachment Security and Children’s Anxiety and Aggression at First Grade, 28 J. Applied Dev. Pyschol. 477 (2007) ..................................................................... 10 Denise Donnelly & David Finkelhor, Does Equality in Custody Arrangement Improve Parent-Child Relationship?, 54 J. Marriage & Fam. 837 (1992) .................................................................................................. 17 - iv - Fiona L. Tasker & Susan Golombok, Growing Up in a lesbian Family: Effects on Child Development 12 (1997) ........................................................... 16 Fiona Tasker, Lesbian Mothers, Gay Fathers, and Their Children: A Review, 26 Dev. & Behavioral Pediatrics 224 (2005) .................................. 12-13 J. Stacey & T. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Sociol. Rev. 159 (2001) .................................................... 12, 13 J. Wainwright & C. Patterson, Peer Relations Among Adolescents with Female Same-Sex Parents, 44 Dev. Psychology 117 (2008) ....................... 11-12 James G. Byrne et al., Practitioner Review: The Contribution of Attachment Theory to Child Custody Assessments, 46 J. Child Psychology & Psychiatry 115 (2005) ..................................................................................... 9, 15 Jane D. McLeod et al., Trajectories of Poverty and Children’s Mental Health, 37 J. Health & Soc. Behavior 207 (1996) .............................................. 18 Joseph Goldstein et al. Beyond the Best Interests of the Child, The Best Interests of the Child: The Least Detrimental Alternative 16 (1996) .... 10-11, 14 Kimberly A. Faust & Jerome N. McKibben, Marital Dissolution: Divorce, Separation, Annulment, and Widowhood, HANDBOOK OF MARRIAGE AND THE FAMILY 474 (2d ed. 1999) ............................................................................ 17 Mark D. Simms et al., Health Care Needs of Children in the Foster Care System, 106 PEDIATRICS 909 (2000) ................................................................... 15 Mary A. Ainsworth et al., Patterns of Attachment: A Psychological Study of the Strange Situation 20 (1978) ............................................................................ 7 Michael E. Lamb, Placing Children’s Interests First: Developmentally Appropriate Parenting Plans, 10 Va. J. Soc. Pol’y & L. 98 (2002) .................. 17 Nat’l Research Council & Inst. of Med., From Neurons to Neighborhoods: The Science of Early Childhood Development 226 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000) .......................................................... 8, 11, 15, 18 - v - Ross A. Thompson & Miranda Goodman, Development of Self, Relationships, and Socioemotional Competence: Foundations for Early School Success, Handbook of Child Development & Early Education: Research to Practice 147 (2009) ........................................................................... 9 R.P. Fearon et al., The Significance of Insecure Attachment and Disorganization in the Development of Children’s Externalizing Behavior: A Meta-Analytic Study, 81 Child Dev. 435 (2010) ........................... 10 Sanders Korenman et al., Long-Term Poverty and Child Development in the United States: Results from the NLSY, 17 Children of Youth Services. Rev. 127 (1996) .................................................................................................. 18 Terry M. Levy & Michael Orlans, Attachment, Trauma and Healing (2d ed. 2014) ............................................................................................................. 7, 8, 9 W. Andrew Collins & L. Alan Sroufe, Capacity for Intimate Relationships: A Developmental Construction in The Development of Romantic Relationships in Adolescence 125 (Wyndol Furman et al., eds., 1999) ......... 9-10 William F. Hodges, Interventions for Children of Divorce: Custody, Access, and Psychotherapy 8 (2d ed. 1991) .................................................... 14-15, 15-16 Yvon Gauthier et al., Clinical Application of Attachment Theory in Permanency Planning for Children in Foster Care: The Importance of Continuity of Care, 25 Infant Mental Health J. 379 (2004) ................................ 16 [NEWYORK 3164232_17] INTEREST OF AMICI CURIAE Established in 1955, the National Association of Social Workers (NASW) is the largest association of professional social workers in the United States, with over 130,000 members in 55 chapters. The New York State Chapter of NASW has 8,700 members, and the New York City Chapter of NASW has 7,800 members. As part of its mission to improve the quality and effectiveness of social work practice, NASW promulgates professional standards and the NASW Code of Ethics, conducts research, provides continuing education, and develops policy statements on issues of importance to the social work profession. NASW also advocates for sound public policies, including by filing amicus curiae briefs in appropriate cases. See, e.g., Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 375 (2009) (citing NASW amicus brief); Kennedy v. Louisiana, 554 U.S. 407, 443 (2008) (same); Jaffee v. Redmond, 518 U.S. 1, 16 (1996) (same). Consistent with the purview of the social work profession itself, these efforts have addressed—among many other issues—questions about how biological, psychological, interpersonal, environmental, and cultural factors shape and affect children and families. - 2 - Social workers have a wealth of knowledge and experience with respect to these issues. Social workers have a long tradition of direct work with children in a wide range of practice settings, including hospitals, schools, mental health clinics, shelters, group homes, and private practice. Social workers provide counseling to families and children regarding family transitions, perform adoption home studies and post-placement evaluations, conduct child custody evaluations, and testify as expert witnesses in many legal proceedings affecting the welfare of children, including proceedings involving child custody and visitation, termination of parental rights, parental fitness, foster care and permanency planning, and adoptions. NASW is committed by its policy statements, as well as its NASW Code of Ethics, to advancing policies and practices that improve the lives of children, including those raised in same-sex-parent families. Consistent with those goals, NASW supports granting gay, lesbian, and bisexual people all rights, privileges, and responsibilities that are granted to heterosexual people. These include, among other things, the ability of same-sex-parent families to enjoy the same child custody rights that heterosexual-parent families enjoy, and the legal recognition of LGBT families through comprehensive parental recognition laws at the state level to fully protect children raised in these families. - 3 - For these reasons, NASW, along with its New York State and New York City Chapters, supports Petitioner-Respondent Brooke S.B.’s and Petitioner- Respondent Estrellita A.’s standing to obtain hearings to determine whether they should be awarded custody of and visitation with the children in their respective cases. NASW and its New York State and New York City Chapters therefore file this brief in support of these children’s development and well-being, and in support of the development, well-being, and best interests of all similarly-situated children in the State of New York. - 4 - INTRODUCTION AND SUMMARY OF ARGUMENT Same-sex parents with children are an increasingly common type of modern family. In many such families, one of the child’s parents is the biological mother of the child, while her same-sex partner is a “functional parent”—i.e., a person who lacks a biological or adoptive connection to the child, but otherwise functions as the child’s parent in every respect. These cases address two families that may fit that description. In one case, Estrellita A. v. Jennifer L.D., Jennifer’s former same-sex partner, Estrellita, sought custody of and visitation with Jennifer’s biological daughter after she and Jennifer ended their relationship. 40 Misc. 3d 219 (Fam. Ct., Suffolk Cty. 2013). Prior to their separation, Estrellita and Jennifer “shared in the responsibilities of taking care of the child, and they agreed she would call [Jennifer] ‘mommy’ and [Estrellita] ‘mama,’” even though Estrellita was not biologically related to and never adopted the child. Arriaga v. Dukoff, 123 A.D.3d 1023, 1023 (2d Dep’t 2014). Ultimately, the Family Court – and then the Second Department – found that Estrellita had standing to pursue custody and visitation of the child. The other case, Brooke S.B., deals with a similar situation: after the relationship ended, Brooke sought custody and visitation rights with the child that she and Elizabeth had raised together. Again, Brooke was not biologically related - 5 - to the child, and she never formally adopted him. In this case, however, Brooke’s lack of a biological or formal adoptive connection to the child made a difference to the courts. The Family Court rejected Brooke’s request to seek custody and visitation, and the Fourth Department confirmed that ruling, concluding that “a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it,” and that there would be no exception to this rule “even where the nonparent has enjoyed a close relationship with the child . . . .” Barone v. Chapman-Cleland, 129 A.D.3d 1578, 1579 (4th Dep’t 2015). In New York, courts have refused to grant standing for custody rights except to parents with adoptive or genetic ties to the child. See In re Alison D. v. Virginia M., 77 N.Y.2d 651, 657 (N.Y. 1991); see also Debra H. v Janice R., 14 N.Y.3d 576, 599-600 (N.Y. 2010). This stands in tension with the principle that courts should base child custody and visitation rights on the best interests of the child, not on any mechanical application of bright-line rules. Cf. Tropea v. Tropea, 87 N.Y.2d 727, 739 (N.Y. 1996) (rejecting a “mechanical” approach to custodial rights in favor of an analysis “with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child”). But the Fourth Department’s decision, unlike the Second Department’s decision, does precisely the opposite: it - 6 - elevates a bright-line rule (“a non-biological, non-adoptive parent does not have standing to seek visitation”) over what may be in the child’s best interest – the maintenance of his relationship with Brooke.1 In order to properly weigh a child’s best interests, a court must hear from the non-biological, non-adoptive parent and analyze what type of relationship is at stake. Then, if appropriate, the non-biological, non-adoptive parent should be permitted to petition for custody or visitation like any other parent. If it fails to undertake this analysis, the court risks dissolving a critical relationship between the child and one of its parents, with the result that the child’s development and well- being can be impaired. As shown below, this approach is consistent with extensive psychological, medical, and sociological research studying the relationships between parents and their children. This research explains that attachment relationships develop between children and their parents, and that these attachments are crucial to children’s neurological and psychological development. Crucially, these attachment relationships form regardless of whether the child is biologically related to the parent, whether the parent has adopted the child or whether the parent is in a same-sex relationship with the biological parent. 1 The procedural histories of Barone and Arriaga differ in at least one relevant way. The Fourth Department held that the functional parent in Barone lacked standing under Alison D. Barone, 129 A.D.3d at 1578. The Second Department held that the functional parent in Arriaga had standing because she had been adjudicated a parent in child support proceedings. Arriaga, 123 A.D.3d at 1023. - 7 - Terminating the relationship ignores the best interest of the child and may cause serious psychological harm. Moreover, research shows that a child’s continued relationship with two parents (such as a biological parent and functional parent) rather than one parent brings psychological and economic benefits to the child. ARGUMENT I. Parent-Child Attachment Relationships Are Critical to a Child’s Healthy Development At the core of any child’s development is the attachment relationship that the child forms with the parents who care for the child. In this context, an attachment relationship is defined as “a reciprocal, enduring, emotional, and physical affiliation between a child and a caregiver.” Beverly James, Handbook for Treatment of Attachment-Trauma Problems in Children 2 (1994). “Attachment is the base from which children explore their physical and social environments,” and “their early attachment experiences form their concepts of self, others, and the world.” Id.; see also, e.g., Terry M. Levy & Michael Orlans, Attachment, Trauma and Healing 15-16 (2d ed. 2014). Indeed, “[a]ttachment figures are one’s most trusted companions.” Mary A. Ainsworth et al., Patterns of Attachment: A Psychological Study of the Strange Situation 20 (1978). Attachment relationships have profound biological, psychological, and social effects on a child’s development. Research in developmental psychology and neurology confirm that a child’s attachment relationships are the - 8 - major factor shaping brain development during the period of maximal brain growth. See Daniel J. Siegel, The Developing Mind: How Relationships and the Brain Interact to Shape Who We Are 91-93 (2d ed. 2012). Accordingly, attachment relationships may “create the central foundation from which the mind develops.” Id. at 92; see also Nat’l Research Council & Inst. of Med., From Neurons to Neighborhoods: The Science of Early Childhood Development 226 (Jack P. Shonkoff & Deborah A. Phillips eds., 2000) (“[W]hat young children learn, how they react to the events and people around them, and what they expect from themselves and others are deeply affected by their relationships with parents.”). From a social perspective, attachment relationships help children “to learn basic trust and reciprocity”; to “explore the environment with feelings of safety and security . . ., which leads to healthy cognitive and social development”; and “to create a foundation for the formation of an identity that includes a sense of competency, self-worth, and a balance between dependence and autonomy.” Levy & Orlans, supra, at 15. Attachment relationships also aid children’s emotional growth and their development of a belief system. Id.; see also Nat’l Research Council & Inst. of Med., supra, at 265 (parent-child relationships “shape the development of self-awareness, social competence, conscience, emotional growth and emotion regulation, [and] learning and cognitive growth”). Likewise, - 9 - “[t]hrough a history of consistent and sensitive care with the parent, [a] child develops a model of self and others as lovable and loving/helpful that may make him/her comparatively more likely to cope with challenge and stress (e.g., by relying on others for support or guidance).” James G. Byrne et al., Practitioner Review: The Contribution of Attachment Theory to Child Custody Assessments, 46 J. Child Psychol. & Psychiatry 115, 118 (2005); see also Levy & Orlans, supra, at 15 (attachment relationships help a child “to provide a defense against stress and trauma, which incorporates resourcefulness and resilience”).2 As a result, empirical research demonstrates that secure attachments in childhood are necessary for a child to develop close relationships later in life. See, e.g., W. Andrew Collins & L. Alan Sroufe, Capacity for Intimate Relationships: A Developmental Construction, The Development of Romantic Relationships in Adolescence 125, 127-30 (Wyndol Furman et al., eds., 1999). For instance, one study has shown that “security of attachment in infancy strongly predicted preschool characteristics of self-reliance, effective peer relationships (including empathy and affective engagement), and positive relationships with teachers.” Id. 2 See also Ross A. Thompson & Miranda Goodman, Development of Self, Relationships, and Socioemotional Competence: Foundations for Early School Success, Handbook of Child Development and Early Education: Research to Practice 147, 161 (2009) (“Decades of research on early parent-child relationships have shown that young children rely on their attachment figures for emotional security and well-being, and that these relationships influence developing personality, social skills, self-concept, and understanding what other people are like. . . . [A]ttachment relationships also play an important role in the development of early school readiness and school achievement.”). - 10 - at 128 (citations omitted). In contrast, children without secure attachments “were not only significantly less competent in [peer relationships], but were more aggressive in the classroom.” Id.; see also, e.g., R.P. Fearon et al., The Significance of Insecure Attachment and Disorganization in the Development of Children’s Externalizing Behavior: A Meta-Analytic Study, 81 Child Dev. 435, 436 (2010) (meta-analysis of many attachment studies finds a significant relationship between insecure attachment and aggressive “externalizing” behavior among children); Danielle H. Dallaire & Marsha Weinraub, Infant-Mother Attachment Security and Children’s Anxiety and Aggression at First Grade, 28 J. Applied Dev. Psychol. 477, 489 (2007) (finding that attachment during infancy helped prevent children from developing anxiety and assisted in their ability to cope with stress in first grade). II. The Absence of a Biological or Adoptive Connection Between Brooke S.B. and Estrellita A. and the Children Did Not Affect the Development of Attachment Relationships The development of attachment relationships is not related to biology or the formal adoption process. See Joseph Goldstein et al., Beyond the Best Interests of the Child, The Best Interests of the Child: The Least Detrimental Alternative 16 (1996) (describing “[functional parent] relationships that develop outside of placement by formal adoption or by the initial assignment of a child to - 11 - her biological parents”).3 Rather, the quality and nature of the interaction between the child and its parent, as opposed to any biological or legal connection, creates and sustains attachment relationships. See, e.g., Ana H. Marty et al., Supporting Secure Parent-Child Attachments: The Role of the Non-parental Caregiver, 175 Early Childhood Dev. & Care 271, 273 (2005) (“[T]he quality of [children’s] attachment relationships is dependent on the nature of the interactions with their parents or other caregivers.”); Nat’l Research Council & Inst. of Med., supra, at 234 (explaining that attachment bonds develop with caregivers if they provide “physical and emotional care, continuity or consistency in the child’s life, and emotional investment in the child”). Further, the development of an attachment relationship between a non-biological, non-adoptive parent and her child is unaffected by the fact that the parent is in a same-sex relationship, rather than a heterosexual relationship, with the biological parent. Empirical research overwhelmingly demonstrates that lesbian and gay parents develop just as strong attachments to their children as heterosexual parents do—characterized by the same level of warmth, closeness, and emotional involvement. See, e.g., J. Wainwright & C. Patterson, Peer Relations Among Adolescents with Female Same-Sex Parents, 44 Dev. Psychology 3 See also, e.g., Chatterjee v. King, 280 P.3d 283, 292 (N.M. 2012) (citing Goldstein et al.’s Beyond the Best Interests of the Child to explain that “attachment bonds that form between a child and a parent are formed regardless of a biological or legal connection”). - 12 - 117, 122 (2008) (adolescents had as warm relationships with same-sex parents as opposite-sex parents); J. Stacey & T. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 Am. Sociol. Rev. 159, 176 (2001) (finding that “[l]evels of closeness and quality of parent/child relationships” were the same regardless of sexual orientation). This is unsurprising, as research also confirms that lesbians’ and gay men’s parenting styles and skills do not differ from those of heterosexual women and men. See, e.g., Am. Acad. of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341, 343 (2002) (“[T]he weight of evidence gathered during several decades using diverse samples and methodologies” demonstrates “that there is no systemic difference between gay and non-gay parents in emotional health, parenting skills, and attitudes towards parenting.”); Stacey & Biblarz, supra, at 176 (“Scores for [lesbian and gay] parenting styles and levels of investment in children are at least as ‘high’ as those for heterosexual parents.”).4 Therefore, specifically in the context of same-sex parents, it is clear that the absence of a biological or adoptive link between a parent and a child does not affect the quality of their relationship. See, e.g., Fiona Tasker, Lesbian 4 A recent report by the American Academy of Pediatrics that surveyed “more than 30 years of research” found that “[a] large body of scientific literature demonstrates that children and adolescents who grow up with gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.” Am. Acad. of Pediatrics, Technical Report: Promoting the Well-Being of Children Whose Parents Are Gay or Lesbian, 131 PEDIATRICS e1374, e1374, e1377 (2013). - 13 - Mothers, Gay Fathers, and Their Children: A Review, 26 Dev. & Behav. Pediatrics 224, 230 (2005) (“[D]ata have revealed no differences between children in lesbian-led and children in heterosexual families in terms of the warmth of the child’s relationship with their non-biological mother or father.”); Stacey & Biblarz, supra, at 175 (“[W]omen in every category—heterosexual birth mother, lesbian birth mother, non-biological lesbian social mother—all score about the same” on “measures having to do with the care of children.”); Anne Brewaeys et al., Donor Insemination: Child Development and Family Functioning in Lesbian Mother Families, 12 Human Reprod. 1349, 1354 (1997) (“Among the lesbian mothers, the quality of the parent-child interaction did not differ significantly between the biological and the [non-biological] mother.”). Consistent with this overwhelming body of scientific research and literature demonstrating that the children of same-sex relationships develop attachments to their non-biological, non-adoptive parents, the Second Department correctly concluded that Estrellita had standing to pursue custody and visitation despite her lack of a biological or adoptive connection to the child. In contrast, the Fourth Department’s conclusion—that Brooke did not have standing to pursue custody and visitation, and therefore could not present evidence of her parental bond with her child, simply because “a non-biological, non-adoptive parent does not have standing” to seek custody or visitation—was plainly contrary to this - 14 - research and literature. Despite their lack of a biological or adoptive connection with the children, both Brooke and Estrellita were fully capable of establishing strong, healthy attachment relationships with the children. III. Terminating the Children’s Attachment Relationships with Brooke S.B. and Estrellita A. Would Result in Emotional Harm to the Children The preservation of the parent-child attachment relationship is essential to a child’s healthy development and overall well-being. See, e.g., Goldstein et al., supra, at 19-20 (explaining that “[c]ontinuity of relationships is essential for a child’s healthy development”); Am. Acad. of Pediatrics, Developmental Issues for Young Children in Foster Care, 106 Pediatrics 1145, 1145 (2000) (children’s “need for continuity with their primary attachment figures” is “paramount”). When a child’s attachment relationship with his or her parent is cut, the harm can be dramatic. For instance, “[i]t is known that emotional and cognitive disruptions in the early lives of children have the potential to impair brain development.” Id.; see also Bruce D. Perry et al., Childhood Trauma, the Neurobiology of Adaptation, and “Use-dependent” Development of the Brain: How “States” Become “Traits”, 16 Infant Mental Health J. 271 (1995). From a psychological perspective, the disruption of an attachment relationship can lead a child to question its assumptions about the world, including “whether he or she can - 15 - count on the availability of any parent.” William F. Hodges, Interventions for Children of Divorce: Custody, Access, and Psychotherapy 8 (2d ed. 1991). Indeed, a child may even “conclude that a parent’s absence is due to their own unlovability. Thus, abandonment by a non-custodial parent is a particularly devastating experience.” Id at 9. Moreover, when a child’s attachment relationships are terminated, the child may become vulnerable to serious behavioral problems. Nat’l Research Council & Inst. of Med, supra, at 265 (“[A]ttachments buffer young children against the development of serious behavior problems, in part by strengthening the human connections and providing the structure and monitoring that curb violent or aggressive tendencies.”). In particular, disrupting an attachment can lead to anxiety, aggression, academic problems, and elevated psychopathology. See, e.g., Marty, supra, at 274; Byrne, supra, at 118. Other problems linked to disrupted attachment include “hiding or hoarding food, excessive eating (polyphagia) or drinking (polydipsia), rumination, self-stimulating and repetitive behaviors . . ., and sleep disturbance.” Mark D. Simms et al., Health Care Needs of Children in the Foster Care System, 106 Pediatrics 909, 912 (2000). Disruption of a parental attachment bond can also cause severe harm to the child’s ability to form new attachment bonds. When a child’s assumption that he can depend on both parents “proves incorrect, a child may question many - 16 - other assumptions about the world; for example, whether he or she can count on the availability of any parent…[leading to] insecure or avoidant attachment [in future relationships], interference with healthy object relations, and reorganization of cognitive understandings.” Hodges, supra, at 8-9. Research demonstrates that a child experiences the same “extreme distress” from termination of an attachment relationship even where there is no biological or adoptive connection to the parent—including in cases of same-sex parents. See, e.g., Fiona L. Tasker & Susan Golombok, Growing Up in a Lesbian Family: Effects on Child Development 12 (1997) (“[R]emoving children whose biological mother has died from their sole surviving parent can cause extreme distress, as can the severance of bonds between children and their non-biological mother when the partners break up.”); Yvon Gauthier et al., Clinical Application of Attachment Theory in Permanency Planning for Children in Foster Care: The Importance of Continuity of Care, 25 Infant Mental Health J. 379, 394 (2004) (explaining that children suffer greatly when separated from non-biological parent figures). Assuming as true that Estrellita and Brooke developed parent-child attachment relationships with the children they helped to raise, then the termination of those relationships may cause long-lasting neurological, psychological, social, and behavioral harm to the children, regardless of biological or adoptive ties. To - 17 - preserve the best interests of the child, the family court should have the ability to weigh this harm when evaluating custody and visitation issues. IV. The Children’s Health and Welfare Are Best Served by Nurturing and Maintaining Their Relationships with Brooke S.B. and Estrellita A. as Well as Their Biological Mothers As one might expect in light of the extensive literature confirming that parent-child attachment relationships improve the overall welfare of children, researchers believe that children generally benefit from continued contact with both of their parents. See, e.g., Michael E. Lamb, Placing Children’s Interests First: Developmentally Appropriate Parenting Plans, 10 Va. J. Soc. Pol’y & L. 98, 103, 113-14 (2002) (describing research findings that everyday activities with both parents promote and maintain trust and confidence in the parents, while strengthening child-parent attachments); Denise Donnelly & David Finkelhor, Does Equality in Custody Arrangement Improve Parent-Child Relationship?, 54 J. Marriage & Fam. 837, 838 (1992) (“Children who maintain contact with both parents tend to be better adjusted.”).5 The findings are no different for children of same-sex parenting relationships. Thus, as one prominent researcher has explained, when same-sex 5 See also Kimberly A. Faust & Jerome N. McKibben, Marital Dissolution: Divorce, Separation, Annulment, and Widowhood, Handbook of Marriage and the Family 475, 491 (2d ed. 1999) (“children feel more secure and less harmed by the fear of losing the non-custodial parent” in joint custody arrangements). - 18 - parents who have jointly raised a child since birth decide to separate, “it is reasonable to expect that the best interests of the child will be served by preserving the continuity and stability of the child’s relationship with both parents.” Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 Child Dev. 1025, 1037 (1992); see also Am. Acad. of Pediatrics, Policy Statement: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 339, 339 (2002) (explaining that non-biological, same-sex parents’ rights should be recognized so that their children may “enjoy[] the psychological and legal security that comes from having two willing, capable, and loving parents”). Additionally, and not surprisingly, empirical experience confirms that children benefit greatly from stable financial support. In fact, “[o]ne of the most consistent associations in developmental science is between economic hardship and compromised child development.” Nat’l Research Council & Inst. of Med., supra, at 275.6 Thus, depriving a child of a second parent’s financial support limits the resources available to the child and causes greater financial insecurity. Therefore, when determining the best interests of a child, it is appropriate for a court to consider the psychological and economic advantages of 6 See also, e.g., Sanders Korenman et al., Long-Term Poverty and Child Development in the United States: Results from the NLSY, 17 Children of Youth Services Rev. 127 (1996) (finding substantial developmental deficits among children who, on average, are poor over a number of years relative to those who are not); Jane D. McLeod et al., Trajectories of Poverty and Children’s Mental Health, 37 J. Health & Soc. Behav. 207 (1996) (concluding that people with childhood histories of poverty had higher levels of depression and antisocial behavior). - 19 - the child maintaining relationships with both of his or her parents. Here, the Second Department’s conclusion that Estrellita had standing to pursue custody and visitation meant that the Family Court could properly weigh these benefits. However, the Fourth Department’s conclusion that Brooke did not have standing by virtue of her status as a non-biological, non-adoptive parent precluded the Family Court from considering these advantages. CONCLUSION Comprehensive psychological, medical, and sociological research demonstrates that the most significant benefits of parent-child relationships come from the enduring reciprocal bonds between children and their caregivers, and that breaking these bonds may cause serious harm to the children. The research likewise confirms that the formation and maintenance of these attachments can occur regardless of biology, adoption or whether the parents are in a same-sex relationship. Accordingly, to ensure that it acts in the best interest of the children in these cases and children throughout the state of New York, this Court should confirm that Estrellita and Brooke have standing to prove that they have attachment relationships with the children and accordingly uphold the Second Department's Order of December 24, 2014 and reverse the Fourth Department's Order of June 19, 2015. Dated: New York, NY March 18,2016 Respectfully submitted, CLEARY liLIEB TEE~ & HAMILTON LLP By: { /) Carthlut(D. Bo ~zzi Daniel D. Queen One Liberty Plaza New York, New York 10006 (212) 225-2000 Counsel for Amici Curiae National Association of Social Workers, National Association of Social Workers' New York State Chapter, and National Association of Social Workers' New York City Chapter - 20-