Donald EE. v. Cheyenne EE.

177 A.D.3d 1112

115 N.Y.S.3d 123

In the Matter of DONALD EE., Appellant,

v.CHEYENNE EE., Respondent.

(Proceeding No. 1.)

In the Matter of Heidi FF., Respondent,

v.Donald EE., Appellant,andCheyenne EE., Respondent.

(Proceeding No. 2.)

526072

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

Calendar Date: October 8, 2019

Decided and Entered: November 21, 2019

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Norbert A. Higgins, Binghamton, for Cheyenne EE., respondent.

Liam G.B. Murphy, Ithaca, for Heidi FF., respondent.

Lisa K. Miller, McGraw, attorney for the children.

Before: Garry, P.J., Egan Jr., Mulvey and Aarons, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a corrected order of the Family Court of Cortland County (Ames, J.), entered July 10, 2017, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subject children.

Donald EE. (hereinafter the father) and respondent Cheyenne EE. (hereinafter the mother) are the parents of two daughters (born in 2011 and 2012). The mother and the father formerly had joint custody pursuant to a 2015 order that awarded primary residence to the mother and weekly supervised parenting time to the father. The order provided that no persons other than immediate family members were to participate in the father's visits. In June 2016, Family Court modified the order to remove the supervision requirement.

In July 2016, the father filed a modification petition seeking custody on the ground that the mother no longer lived with the children and had left them in the care of petitioner Heidi FF. (hereinafter the grandmother), the maternal grandmother. Shortly thereafter, the grandmother filed a petition seeking custody. In August 2016, the attorney for the children filed an order to show cause seeking to place temporary custody of the children with the grandmother. Family Court granted this relief. Thereafter, in October 2016, the attorney for the children filed another order to show cause seeking to require the father's visits to be supervised, and the court imposed this requirement.

The mother failed to appear at the scheduled fact-finding hearing, and Family Court found her to be in default. Following a two-day hearing, the court found that extraordinary circumstances existed based upon the mother's abandonment and the father's persistent neglect, such that the grandmother had standing to seek custody of the children. The court further concluded that an award of sole legal custody to the grandmother was in the children's best interests, with supervised visitation for the father. The father appeals.

"In a custody dispute between a parent and a nonparent, the parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances" ( Matter of Rumpff v. Schorpp, 133 A.D.3d 1109, 1110, 21 N.Y.S.3d 374 [2015] [internal quotation marks and citations omitted]; see Matter of Melissa MM. v. Melody NN., 169 A.D.3d 1280, 1281, 94 N.Y.S.3d 718 [2019] ). It is the nonparent's "heavy burden" to establish the existence of extraordinary circumstances ( Matter of Donna SS. v. Amy TT., 149 A.D.3d 1211, 1212, 52 N.Y.S.3d 515 [2017] ), a determination that must be based upon "the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Marcia ZZ. v. April A., 151 A.D.3d 1303, 1304, 56 N.Y.S.3d 645 [2017] [internal quotation marks and citations omitted]; accord Matter of Debra SS. v. Brian TT., 163 A.D.3d 1199, 1201, 81 N.Y.S.3d 621 [2018] ).

Family Court's determination that the father persistently neglected the children is supported by "a sound and substantial basis in the record" ( Matter of Rodriguez v. Delacruz–Swan, 100 A.D.3d 1286, 1289, 954 N.Y.S.2d 692 [2012] ). The court took judicial notice of an order entered against the father in a 2015 neglect proceeding that found, among other things, that the father had permitted persons with a history of sexual offenses against minors to have unsupervised contact with the children, that he did not properly meet the children's hygienic needs, that he harassed the mother, that he ignored extreme misbehavior by one of the children without providing appropriate discipline, and that he had become suicidal on one occasion and continued to have untreated mental health issues. The order required the father, among other things, to obtain a substance abuse evaluation and comply with treatment recommendations and to participate in mental health treatment with an anger management component. The father claimed that he had complied with these requirements, but provided no proof beyond his own testimony. The father further acknowledged that he continued to use marihuana. He claimed that he did not do so around the children, but Family Court credited testimony that he used marihuana during weekend visits with the children, and that he sometimes appeared to be under the influence of marihuana during supervised visits.

As for compliance with the other requirements of the order, the father acknowledged that the mental health treatment he had undergone did not address his 2015 suicide attempt. He asserted that he did not have anger management issues, but Family Court found that he had displayed uncontrolled anger in court on at least one occasion by walking out of an appearance and shouting a profane comment. The court further credited testimony that the father had angrily pushed one of the children hard enough to hurt her and, when she cried, told her, "I didn't hurt you that f* * *ing bad." Finally, the court found that the father was deceptive and did not follow court orders. He repeatedly violated the requirement that only immediate family members were to be present during his visits by residing in a trailer with nine or more unrelated people who were present during visits. He altered a drug test result in an effort to mislead the court,...