Chasity v. DD

165 A.D.3d 1412

87 N.Y.S.3d 350

In the Matter of CHASITY CC., Appellant,

v.FREDERICK DD., Respondent, et al., Respondent.

(Proceeding No. 1.)

In the Matter of Mark DD., Petitioner,

v.Tracey DD., Respondent,andFrederick DD., Respondent,

and

Chasity CC., Appellant.

(Proceeding No. 2.)

525481

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 7, 2018

Decided and Entered: October 18, 2018

Lisa Miller, McGraw, for appellant.

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for Frederick DD., respondent.

Mark A. Schaeber, Liverpool, attorney for the children.

Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.Chasity CC. (hereinafter the mother) and respondent Frederick DD. (hereinafter the father) are the parents of two children (born in 2004 and 2007). In 2006, the father petitioned for custody of the older child and, on consent, Family Court awarded the father and the mother joint legal custody of the older child, with primary physical placement with the father and visitation to the mother. In 2008, following the birth of the younger child, Family Court granted the father's petition seeking physical custody of the younger child, awarded the mother visitation, denied her cross petition seeking custody of the younger child and dismissed her violation and modification petitions. Subsequently, in December 2015, the father was arrested on certain drug-related charges and the children began residing with respondent Tracey DD., the children's paternal aunt (hereinafter the aunt). In September 2016, Family Court, on consent, awarded the mother, the father and the aunt joint legal custody of the children, with primary physical placement with the aunt, visitation to the father and supervised visitation to the mother on alternate weekends and Wednesdays.

In December 2016, the mother filed a modification petition (proceeding No. 1) seeking custody and primary physical placement of the children. Petitioner Mark DD., the children's paternal uncle (hereinafter the uncle), thereafter filed a custody petition and an amended custody petition (proceeding No. 2) also seeking custody and primary physical placement of the children. Following a fact-finding hearing, Family Court dismissed the mother's modification petition, and granted the uncle's petition by awarding him, the mother and the father joint legal custody, with primary physical placement with the uncle, visitation to the father and supervised visitation to the mother. The mother now appeals, contending, among other things, that Family Court's order lacks a sound and substantial basis in the record as there was insufficient evidence presented at the fact-finding hearing establishing the existence of extraordinary circumstances.

It is well settled that, in a custody dispute between a parent and a nonparent, "[a] parent's claim to custody of his or her children is superior to that of all others absent a showing of surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or other like extraordinary circumstances" ( Matter of Durgala v. Batrony, 154 A.D.3d 1115, 1117, 62 N.Y.S.3d 594 [2017] [internal quotation marks and citation omitted]; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). Where, as here, no finding of extraordinary circumstances has previously been made, it is the nonparent's burden to demonstrate the existence thereof (see Matter of Perry v. Perry, 160 A.D.3d 1144, 1144–1145, 73 N.Y.S.3d 801 [2018] ; Matter of Heather U. v. Janice V., 152 A.D.3d 836, 837–838, 57 N.Y.S.3d 762 [2017] ). In determining whether extraordinary circumstances exist, Family Court may consider, among other relevant factors, "the overall length of time the child has lived with the nonparent and the quality of that relationship, the particular circumstances existing at the time custody was awarded to the nonparent, the length of time the parent allowed such an order to continue without attempting to assume the primary parental role and the specific provisions and conditions, if any, of such order" ( Matter of Campbell v. Brewster, 9 A.D.3d 620, 621–622, 779 N.Y.S.2d 665 [2004] [internal quotation marks, brackets and citation omitted]; see Matter of McDevitt v. Stimpson, 281 A.D.2d 860, 862, 722 N.Y.S.2d 615 [2001] ). Upon making a threshold showing of extraordinary circumstances, Family Court may then consider what custodial arrangement serves the best interests of the children (see Matter of Heather U. v. Janice V., 152 A.D.3d at 838, 57 N.Y.S.3d 762 ).

Here, the father was the primary caretaker for the subject children for nearly the entirety of their childhood until such time as he was arrested on drug charges in December 2015. Immediately following the father's arrest and incarceration, the children moved in with the aunt, a temporary order to that effect was entered and, in September 2016, Family Court awarded joint legal custody to the aunt, the father and the mother and primary physical placement to the aunt, with the consent of both the father and the mother. At the time of the fact-finding hearing, therefore, the children had been living with the aunt for approximately 18 months. Notably, contrary to the mother's assertion, the evidence at the hearing sufficiently demonstrated that, during the 18 months that the aunt had physical placement of the children, the mother made numerous hotline reports to Child Protective Services (hereinafter CPS) against the aunt.¹ Based on the negative impact that the resulting CPS investigations were having on the aunt's home life, including her own two children, the aunt subsequently indicated that she was no longer willing to serve as a placement resource for the children, prompting the uncle to file a petition seeking custody of the children.

The hearing revealed that, after splitting up with the father, the mother got married and had three additional children (hereinafter the half siblings) with her husband. At the fact-finding hearing, Family Court took judicial notice of all prior proceedings involving the mother and the half siblings,² as the half siblings were also not residing with the mother at that time.³ The mother, therefore, does not have primary physical placement of any of her five children and, instead, has consistently consented to their removal and placement with others, and she has only been granted supervised visitation with respect to same. Moreover, the mother testified that she continues to reside with her husband – who has his own CPS history of child abuse – in the same residence from which the half siblings were recently removed due to unsafe and unsanitary conditions therein. The mother, however, failed to offer any evidence demonstrating that she has taken any affirmative steps to address or remedy the deplorable housing conditions that, among other issues, resulted in the removal of the half siblings.

Additionally, despite consenting to the placement of the subject children with the aunt in September 2016, the mother testified that she was wholly unaware of how or why the subject children had come to live with the aunt following the father's incarceration. Further, rather than using the 18...