Jared MM. v. Mark KK.

2022 NY Slip Op 03032

In the Matter of Jared MM., Appellant, v. Mark KK., Respondent, et al., Respondent. (Proceeding No. 1.)

In the Matter of Mark KK., Respondent, v. Janine LL., Respondent, and Jared MM., Appellant. (Proceeding No. 2.) (And Another Related Proceeding.)

Supreme Court of New York, Third Department

May 5, 2022

Calendar Date: March 23, 2022

Robert N. Gregor, Lake George, for appellant.

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Paula Nadeau Berube of counsel), for Mark KK., respondent.

Karen R. Crandall, Schenectady, attorney for the child.

Before: Egan Jr., J.P., Clark, Ceresia and Fisher, JJ.

Clark J.

Appeal from an order of the Family Court of Washington County (Wait J.), entered November 16, 2020, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Jared MM. (hereinafter the father) and Janine LL. (hereinafter the mother) are the parents of a child (born in 2015). In April 2016, the parents filed initial custody petitions against one another, and, while those petitions were pending, the Washington County Department of Social Services (hereinafter DSS) filed a neglect petition against each parent. Relevant here, the petition against the father set forth allegations of domestic violence committed against the mother in front of the child - allegations which were premised upon the father's statements during interviews with DSS. A maternal great aunt (hereinafter the aunt) then petitioned for custody of the child. In October 2016, the mother consented to a finding of neglect without admission with the understanding that the neglect proceeding against her would be adjourned in contemplation of dismissal, and an order to that end was entered. Family Court also entered a second order in October 2016 (hereinafter the October 2016 order) whereby legal custody of the child would be shared among the father, the mother and the aunt, with the mother and the aunt sharing physical custody. As for the neglect proceeding against the father, in January 2017, the father executed an unconditional, irrevocable judicial consent to a private placement adoption pursuant to Domestic Relations Law § 115-b, and, after that relinquishment of his parental rights to the child, DSS withdrew the neglect petition against him.

In the summer of 2017, the mother and the aunt filed petitions against one another to modify the October 2016 order. In October 2017, Family Court (Kershko, J.) entered an order, seemingly on consent, vacating the October 2016 order and any other orders of custody pertaining to the child. The October 2016 order having been vacated, and the father having essentially surrendered his parental rights, sole legal and physical custody of the child reverted to the mother. In November 2017, Mark KK. - the child's maternal grandfather (hereinafter the grandfather) - and his wife of over 30 years filed a petition seeking visitation with the child, naming the mother as the respondent. In a March 2018 order, the court dismissed that petition for failure to prosecute and failure to serve the father as a necessary party, determining, sua sponte, that the father's prior judicial consent was invalidated as no adoption of the child ultimately took place. ^[1]

Beginning in June 2018, the father filed various custody and enforcement petitions against the mother. The grandfather also filed a petition for visitation, this time naming both the mother and the father as respondents. After a hearing on all of the petitions was well underway, the parties reached an agreement. In April 2019, the Family Court of Tompkins County (Cassidy, J.) entered a stipulation and order on consent that, in pertinent part, granted the father and the grandfather "joint custody" of the child with physical placement and final decision-making authority reserved for the grandfather and certain unsupervised visitation for the father, along with a schedule for expansion of the father's parenting time should he meet specified conditions.

In January 2020, the father filed the first of the subject petitions - a violation petition alleging that the grandfather had denied him parenting time on numerous occasions. Following one of the father's visits in February 2020, the grandfather filed an order to show cause alleging that the father sexually molested the child during the visit. Family Court (Wait, J.) in turn issued a temporary order suspending the father's visits, which was later modified to provide for limited supervised visitation pending a hearing. ^[2] The grandfather also filed a petition to modify the April 2019 stipulation and order, seeking full custody of the child and to suspend and/or terminate the father's parenting time. The father then filed his own custody modification petition seeking sole custody of the child. Following a fact-finding hearing on all three petitions, the court concluded, as relevant here, that it was in the child's best interests to award the grandfather sole custody and to terminate the father's parenting time. ^[3] The father appeals.

"'A parent has a claim of custody to his or her child that is superior to all other persons, unless a nonparent establishes that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or "other like extraordinary circumstances"'" (Matter of Donna SS. v Amy TT., 149 A.D.3d 1211, 1212 [2017], quoting Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 544 [1976]). ^[4] Where, as here, there has been no prior finding of extraordinary circumstances, it remains the nonparent's burden to demonstrate the existence thereof and, thus, that he or she has standing to seek custody of another person's child (see Matter of Tiffany W. v James X., 196 A.D.3d 787, 789 [2021]; Matter of Melissa MM. v Melody NN., 169 A.D.3d 1280, 1281 [2019]), an inquiry that requires consideration of the "cumulative effect of all issues present in a given case" (Matter of Michael P. v Joyce Q., 191 A.D.3d 1199, 1200 [2021] [internal quotation marks and citations omitted], lvs denied 37 N.Y.3d 901, 902 [2021]; see Matter of Terry PP. v Domiyon PP., 184 A.D.3d 914, 915-916 [2020]). If the nonparent satisfies that heavy burden, the question then turns to what custodial arrangement will further the child's best interests, and relevant factors in that analysis include "maintaining stability in the child's life, the quality of the respective home environments, the length of time the present custody arrangement has been in place and each party's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development" (Matter of Sweeney v Daub-Stearns, 166 A.D.3d 1340, 1342 [2018] [internal quotation marks and citations omitted]; see Matter of Bonnie AA. v Kiya DD., 186 A.D.3d 1784, 1786 [2020], lv dismissed and denied 36 N.Y.3d 933 [2020]).

To begin, it must be emphasized that, by executing an irrevocable judicial consent to a private placement adoption in 2017, the father clearly evinced his intent to sever his relationship with the child (see generally Matter of Jacob, 86 N.Y.2d 651, 664 [1995]; Matter of De Filippis v Kirchner, 217 A.D.2d 145, 148 [1995]), irrespective of whether his consent was subsequently invalidated because no adoption proceeding had yet taken place. Deferring to Family Court's express credibility assessments, which include the finding that the father's testimony was wholly unworthy of belief, the hearing evidence also established that the father rarely saw the child. He regularly canceled or simply did not attend scheduled visitations, and, on the limited occasions when he did exercise his visitation rights, he often cut short his own parenting time. According to the aunt, while she was the child's primary physical custodian, the father would almost always return the child to her unfed and in soiled diapers. Evidence was also presented regarding instances of the father's failure to properly care for the child when she was ill during a visit and his poor supervision of the mother's other children when they resided together.

Significantly, credible evidence admitted at the hearing established that the child's physical and emotional safety were compromised while she was in the father's unsupervised care due to his inappropriate physical contact with her. The father also refused to cooperate with DSS and police investigations into the child's allegations. Relatedly, the child was already receiving therapeutic services following an indicated incident with a former partner of the mother - circumstances of which the father was aware. The grandfather's wife, who at times served as a supervisor during the father's parenting time, also offered examples of the need for her to intervene during visits when the father failed to adequately respond to safety concerns or maintain appropriate physical boundaries under the circumstances.

The father also failed to attend any of the child's school activities or otherwise attempt to be involved in her education. This included his failure to attend meetings concerning her special education services, and, at the time of the hearing, he was still unaware of the nature of the services that she required despite being provided with that information directly from the school. He demonstrated a similar lack of awareness regarding the child's physical and mental health needs and providers. The evidence also showed that there were periods of time where the father willfully defaulted on his support obligation and otherwise failed to provide for the child financially. In the several years leading up to the hearing, the father had been...