Biological Mother Is Granted Custody of Boy in Abuse Case
Biological Mother Is Granted Custody of Boy in Abuse Case
By KIRK JOHNSON
LEAD: The biological mother of a 17-month-old boy raised by a Manhattan couple who have been charged in the death of another child won temporary custody of the boy yesterday.
The biological mother of a 17-month-old boy raised by a Manhattan couple who have been charged in the death of another child won temporary custody of the boy yesterday.
The woman, Nicole Bridget Smigiel, argued in an emotional hearing that the boy, Mitchell, had never been legally adopted. Miss Smigiel, who is 18 and lives in Massepequa Park, L.I., is seeking permanent custody.
The couple who had been raising the boy, Joel B. Steinberg and Hedda Nussbaum, are charged with murdering the other child, Lisa, and with neglect in the care of Mitchell, who was taken from the Steinberg home in Greenwich Village by the police on Nov. 2.
Mitchell, who began living with Mr. Steinberg and Ms. Nussbaum immediately after birth, was found tied to a chair and drinking spoiled milk. He has been in city foster care since Nov. 2. Yesterday, attorneys for Mr. Steinberg and Ms. Nussbaum strongly opposed Miss Smigiel's request for custody.
The court decision, at Family Court Building in lower Manhattan, was ordered held in abeyance by the judge, Jeffry H. Gallet, until 5 P.M. today to allow attorneys for Mr. Steinberg and Ms. Nussbaum to file appeals.
The attorneys for the city's Department of Social Services and the court-appointed lawyers speaking for Mitchell's interests supported the judge.
''I am not predeciding this case,'' Judge Gallet said in explaining the custody ruling, which will likely remain in effect pending a Family Court trial, to begin in January. ''I just don't want this child bounced around,'' the judge said, referring to the foster-care program.
Under state law, blood relatives are given priority in temporary custody cases if the court has sufficient information about the family. Although instances of a biological mother changing her mind after an adoption are not uncommon, Judge Gallet said that this case, in which the adoption apparently was never completed, has few precedents.
Technically, Judge Gallet was not ruling on the placement of the child. Instead, he said he would not countermand a decision by the city Department of Social Services, which had said it was prepared to transfer Mitchell to the Smigiel home as early as yesterday based on its own determination.
According to the attorney for the department, Robert Wayburn, an official of the agency went to the home, interviewed Miss Smigiel and her mother, who came forth after the publicity surrounding Lisa's death, and found their home to be the best place for the child. The report was filed as part of the court record.
Miss Smigiel and her mother burst into tears when the ruling and the 24-hour delay were announced just before 5 P.M.. They were quickly ushered from the courtroom by their attorney, Anthony Barbiero, and left in a limousine waiting at the back entrance of the court. They made no comment to the dozens of reporters who crowded the exits. Steinberg Admission on Papers
The hearing, in the cramped fifth-floor courtroom with reporters and sketch artists clustered in a makeshift gallery behind the attorneys and family members, resolved some questions in the case but left many others.
Mr. Steinberg, a 46-year-old lawyer, speaking through his attorney, admitted at the hearing, for example, that he had not filed adoption papers for Mitchell and that he did not know whether another attorney who had been involved in the adoption ever did so.
Although Judge Gallet allowed consent forms purportedly signed by Miss Smigiel agreeing to the child's adoption by the Steinbergs to be placed in the record, he stressed that no final determination had been made about the circumstances of the child's placement or the legitimacy of the documents. But he said it appeared the adoption had not been consummated.
But the attorneys for Mr. Steinberg and Ms. Nussbaum repeatedly asserted that placing the child with the Smigiels was improper, given that Miss Smigiel had abandoned the child and apparently made no effort to contact him since his birth. The consent forms were apparently signed four days after Mitchell's birth. Participation of Natural Father
''She has no right to be here in this proceeding,'' said David Lansner, the attorney for Ms. Nussbaum, who was not present at the hearing. Ms. Nussbaum, 45, a former children's book editor and author, asked the judge in a handwritten note to allow her to visit Mitchell. But Judge Gallet again denied the motion, as he did a similar one last week, saying that until Ms. Nussbaum appeared before him for questioning, he would not consider it.
According to Mr. Lansner, Miss Smigiel denied being pregnant until a few weeks before giving birth and even tried to join a weight-loss clinic because of the weight she had gained.
He also said she and her mother tried to hide the pregnancy from Miss Smigiel's father, and the two of them lied in the last days of the pregnancy, saying they were going to visit a college. The baby's father, whose name was not made public, was also apparently not told of the child's existence until a few weeks ago, but has apparently also agreed to take part in the child's care, according to Mr. Barbiero.
The hearing was the second court proceeding in the highly publicized case in which a biological mother came forward to claim her rights. Last week Lisa's biological mother, Michelle Launders, 26, a Long Island secretary, testified in Surrogate's Court that she believed she was entitled to bury the child in a family plot because Lisa, whose given name was Elizabeth, had not been properly adopted.
In that case, Surrogate Marie M. Lambert agreed and ordered the girl's body released to the mother for burial. The funeral, a joint Jewish-Roman Catholic ceremony held last Thursday, attracted hundreds of people.