Aunt Loses Custody Petition For Niece To White Foster Parents In Buffalo New York But Vows To Continue Fighting

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[New York State Court News]
Mrs. Amber Wilkes-Smith
Photo: Facebook screenshot

Mrs. Wilkes-Smith: fighting to adopt her niece who was given to White foster parents by Department of Social Services.

Last month, Amber Wilkes-Smith’s petition to gain custody of her four-year-old niece—from the White foster parents whom her niece is living with—was denied by Erie County Family Court Judge Margaret Szczur in Buffalo, New York.

Judge Szczur also denied visitation rights between Wilkes-Smith’s 4-year-old niece and said niece’s 14-year-old teenage sister—who was adopted by another family member of Wilkes-Smith. Both siblings have never meet.

Was Judge Szczur’s ruling, biased in favor of this White family which allegedly has connections to local upstate courts? Equally troubling: did this judge have a prior conflict with the mother of this four-year-old that should’ve required her to recuse herself?

Late last month, Judge Szczur ruled against the petition of Amber Wilkes-Smith who has been trying to gain custody of her 4-year-old niece, since last August. Judge Szczur’s ruling was based on her statement that Wilkes-Smith’s petition “would not be in the child’s best interest to proceed on their custody request.” Judge Szczur also claimed, “They have waited too long to come forward and make the claims that they have.”

But according to Wilkes-Smith, who lives in North Carolina, she only found out about the existence of her four-year-old niece in August 2018. That was when she found out from her incarcerated sister—the child’s mother. Wilkes-Smith’ sister had been estranged from the family for years, and the child was taken after her mother was incarcerated, for 3 and-a-half years on a weapon’s possession charge.

Due to the wishes of Wilkes-Smith, the Black Star News has agreed not to publish her sister’s name—or, the names of the children. She told us she doesn’t want her sister to “face any reprisal or have her reputation be negatively impacted” when she returns “back to that community.” Her sister apparently suffers from mental problems.

Wilkes-Smith stated the Department of Social Services (DSS) failed to notify her before they placed her niece with this White family. She maintains DSS had her personal contact information and lied when they stated they didn’t. Judge Szczur seemed to admit it was possible DSS didn’t do everything to notify family members when she stated this allegation was “up in the air.”

Judge Szczur apparently didn’t fully investigate whether DSS failed to adequately reach out to other family members, like Ms. Wilkes-Smith—who maintains her information was in DSS files. According to Wilkes-Smith, DSS was negligent in a similar New York case which was overturned by an appellate court. She told the Black Star News about this.

“We found another case law, out of New York State where something similar happened where DSS didn’t notify the family of their rights,” Wilkes-Smith said. “The child was in care for three years and the appellate court overturned the lower court’s decision…The judge never even addressed that. She didn’t address anything. She didn’t address the evidence. She didn’t address the case law.”

Wilkes-Smith’s lawyer, Justin R. Friedman, cited that very 2009 appellate case to Judge Szczur.

Friedman wrote "In overturning the decision of the Family Court, the Third Department Appellate Division was not swayed by the fact the uncle had only met the child once prior to her being placed in foster care or by expert testimony that the best interests of the child were served by the maintenance of stability provided remaining with the same foster family that she had resided with for nearly three years. On the contrary, the court held that stability is just one factor in the best interests analysis that could be outweighed by other factors."

Reportedly, Judge Szczur never even mention that case during her ruling against the custody petition. Wilkes-Smith told the Black Star News that Judge Szczur also denied the family visitation rights—even for the 14-year-old sibling to bond with her 4-year-old sister.

“As far as visitation, cause you know my sister had a visitation petition for the siblings, and she [Judge Szczur] said ‘well any visit will probably be sporadic so, I’m dismissing that,” said Wilkes-Smith. “Like how do you know how often we would visit? The older child was in foster care for four years before we got custody of her…she has a right to know her sister.”

One problem here, for Wilkes-Smith is: another half-sister of the birth mother of the 4-year-old, and of Wilkes-Smith—Ms. Rosalyn-Renee Brooks—apparently had been in some contact with DSS. When the 4-year-old was born, Brooks had asked DSS whether the 14-year-old sibling could visit her recently born sister, who was not yet placed with the foster family. Ms. Brooks had adopted the 14-year-old. County lawyer Natalie Stutz alleges Brooks told them then she had no interest in being a “permanent resource” for the newborn child. Brooks denies this allegation.

Ms. Brooks admitted she didn’t tell Wilkes-Smith about their newborn niece. She stated she had “a lot of stuff going on” which prevented her from contacting family members. She said “I thought I had more time, but I just didn’t do what I was supposed to do. Now, she’s about to be adopted. I think the girls should be together. I think she should be here with her sister. Aren’t they supposed to try and keep families together?”

Mrs. Wilkes-Smith thinks the adoption may move forward in 30 days—and that that would make it more difficult to obtain custody of her niece. She is also worried about a rumor she heard: that one of the White foster family’s members worked as a judge in the upstate area.

Moreover, Wilkes-Smith said Judge Szczur was apparently the same judge who “in 2010, she put out a warrant for my sister’s arrest,” for an unrelated matter. Wilkes-Smith said her sister told her this. “And so, my sister said when she was going through her appeal, she said she did not want that judge governing a custody case for her.” If this is the true, there is then also an issue of judicial recusal here.

Another troubling aspect of this case is the racial component involved. Besides being adopted by this White family, Wilkes-Smith says they live in a part of upstate New York that is virtually an all-White enclave. She faults DSS, Judge Szczur, and other local government officials, because she says, “They don’t care about Black children being ripped from their families and the damage they are causing.”

Wilkes-Smith said she plans to appeal Judge Szczur ruling.

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