Linda UU. v. Dana VV.

212 A.D.3d 906

181 N.Y.S.3d 372

In the Matter of LINDA UU., Appellant,

v.DANA VV., Respondent.

(Proceeding No. 1.)

In the Matter of Dana VV., Respondent.

v.Linda UU., Appellant.

(Proceeding No. 2.)

(And Six Other Related Proceedings.)

534234

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

Calendar Date: November 17, 2022

Decided and Entered: January 5, 2023

Sandra M. Colatosti, Albany, for appellant.

Alexandra J. Buckley, Clifton Park, for respondent.

Christopher J. Obstarczyk, Latham, attorney for the child.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from an order of the Family Court of Schenectady County (Kevin A. Burke, J.), entered September 8, 2021, 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.

Linda UU. (hereinafter the grandmother) is the maternal grandmother of the child (born in 2017) and Dana VV. (hereinafter the mother) is the child's mother. Upon the parties’ stipulation, Family Court issued an order in 2018 that awarded the parties joint legal custody of the child and primary residential custody to the grandmother. In 2019, an order entered upon the parties’ stipulation continued joint legal custody and awarded the parties shared residential custody of the child. In November 2019, the grandmother filed an enforcement petition. Shortly thereafter, the mother filed a modification petition seeking sole legal and residential custody of the child. In 2020, the grandmother filed the following petitions: one to enforce the custody order, one alleging a family offense, two alleging violations of prior court orders and one seeking a modification of custody to grant her sole legal and residential custody of the child. In 2021, the grandmother filed another enforcement petition.

Following a fact-finding hearing on all petitions, Family Court found that the grandmother failed to establish the existence of extraordinary circumstances to supplant the mother's right to custody of the child, and thus ordered the mother to have sole legal and residential custody of the child and awarded the grandmother visitation every other weekend. Family Court further determined that the grandmother failed to establish a family offense and failed to establish a willful violation of the order of protection or the custody order. The grandmother appeals.

Initially, while this appeal was pending, Family Court issued a custody order in May 2022. We take judicial notice of the order; however, we disagree with the mother that the 2022 order renders the grandmother's appeal moot. The 2022 order continued sole legal and residential custody of the child with the mother and modified the grandmother's visitation. The May 2022 order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother's right to pursue a custody appeal. Accordingly, the grandmother's appeal is not moot (see Matter of Nicole B. v. Franklin A., 185 A.D.3d 1166, 1166, 127 N.Y.S.3d 626 [3d Dept. 2020] ; Matter of Daniel C. v. Joanne C., 182 A.D.3d 711, 712, 122 N.Y.S.3d 739 [3d Dept. 2020] ; Matter of Christopher Y. v. Sheila Z., 173 A.D.3d 1396, 1397, 105 N.Y.S.3d 562 [3d Dept. 2019] ).

"A parent has a claim of custody of his or her child that is superior to that of all others, absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances" ( Matter of Karen Q. v. Christina R., 170 A.D.3d 1446, 1447, 96 N.Y.S.3d 749 [3d Dept. 2019] [internal quotation marks, brackets and citations omitted]). A grandparent may make the requisite showing of extraordinary circumstances by establishing that there has been an extended disruption of custody (see Matter of Rumpff v. Schorpp, 133 A.D.3d 1109, 1110, 21 N.Y.S.3d 374 [3d Dept. 2015] ) or persistent neglect. "[A]n extended disruption of custody includes, but is not limited to, a prolonged separation of the ... parent and the child for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent" ( Matter of Donna SS. v. Amy TT., 149 A.D.3d 1211, 1213, 52 N.Y.S.3d 515 [3d Dept. 2017] [internal quotation marks, brackets and citations omitted]). Persistent neglect, sufficient to rise to the level of extraordinary circumstances, requires a showing "that the parent has failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child's future" ( Matter of Arlene Y. v. Warren County Dept. of Social Servs., 76 A.D.3d 720, 721, 906 N.Y.S.2d 645 [3d Dept. 2010] [internal quotation marks and citations omitted], lv denied 15 N.Y.3d 713, 2010 WL 4628641 [2010] ). "The burden of showing that such extraordinary circumstances exist rests with the nonparent challenging the parent's custody, and it is only when this threshold demonstration has been achieved that a court may then turn to the question of what custodial arrangement is in the best interests of the child" ( Matter of Battisti v. Battisti, 121 A.D.3d 1196, 1197, 993 N.Y.S.2d 804 [3d Dept. 2014] [internal citations omitted]; see Matter of Tamika B. v. Pamela C., 187 A.D.3d 1332, 1335, 134 N.Y.S.3d 489 [3d Dept. 2020] ). Here, Family Court found that the grandmother did not meet her burden of proving that there had been an extended disruption of custody, continuing abuse of substances by the mother, persistent neglect or abuse of the child.

"In assessing whether the parent voluntarily relinquished care and control of the child and whether the child actually resided with the grandparent for the required prolonged period of time, courts must consider the totality of the circumstances, taking into account such factors as the quality and quantity of contact between the parent and child, the amount of time that the child has lived with the grandparent, the quality of the relationship between the child and the grandparent and the length of time that the parent allowed the separation to continue before attempting to assume the primary parental role" ( Matter of Donna SS. v. Amy TT., 149 A.D.3d at 1213, 52 N.Y.S.3d 515 [internal quotation marks and citations omitted]). Although the child has primarily resided with the grandmother, the mother has maintained a continuous presence in the child's life, sought residential custody of the child within a year of the 2018 order and since the 2019 order has had shared residential custody of the child. Moreover, the mother retained and exercised control of important decision-making matters involving the child, including the child's medical care, enrollment in Head Start and communication with Head Start staff (see Matter of Amber B. v. Scott C., 207 A.D.3d 847, 848–849, 170 N.Y.S.3d 724 [3d Dept. 2022] ; Matter of Elizabeth SS. v. Gracealee SS., 135 A.D.3d 995, 997, 23 N.Y.S.3d 406 [3d Dept. 2016] ). As such, we agree with Family Court that there was no extended disruption of custody.

As to the mother's fitness as a parent, the record confirms that her behaviors in the aggregate do not rise to the level of extraordinary circumstances. Although the record shows that the mother had multiple residences and employers, these circumstances do not rise to the level of persistent neglect or unfitness. The record evinces that the mother endeavored to establish a stable environment for herself and her child and that the child has been adequately cared for by the mother (see Matter of Hawkins v. O'Dell, 166 A.D.3d 1438, 1440–1441, 89 N.Y.S.3d 374 [3d Dept. 2018] ; Matter of Thompson v. Bray, 148 A.D.3d 1364, 1366, 51 N.Y.S.3d 635 [3d Dept. 2017] ). Deferring to Family Court's factual findings and credibility determinations, we find that there is a sound and substantial basis in the record supporting the court's determination that extraordinary circumstances did not exist (see Matter of Amber B. v. Scott C., 207 A.D.3d at 849, 170 N.Y.S.3d 724 ; Matter of Hawkins v. O'Dell, 166 A.D.3d at 1441, 89 N.Y.S.3d 374 ).¹ In the absence of a finding of extraordinary circumstances, an inquiry relative to the child's best interests is not allowed (see Matter of Amber B. v. Scott C., 207 A.D.3d at 849, 170 N.Y.S.3d 724 ; Matter of Battisti v. Battisti, 121 A.D.3d at 1197, 993 N.Y.S.2d 804 ).

The grandmother next contends that Family Court erred in determining that she failed to establish a family offense. We disagree. "[C]ritical to a charge of disorderly conduct is a finding that [the mother's] disruptive statements and behavior were of a public rather than an individual dimension ..., which requires proof of an intent to threaten public safety, peace or order" ( People v. Baker, 20 N.Y.3d 354, 359, 960 N.Y.S.2d 704, 984 N.E.2d 902 [2013] ). "[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem" ( id. at 359–360, 960 N.Y.S.2d 704, 984 N.E.2d 902 [internal quotation marks and citation omitted]). The record demonstrates that the mother had left the Head Start building, moved away from the line of parents picking up their children, and engaged in cursing at the grandmother in front of the grandmother's vehicle, which was parked on the road. There was no proof as to the number of people in the vicinity or that any were drawn to the situation, thus there is insufficient proof of an intent to threaten public safety, peace or order or the reckless creation of such a risk.² Instead, the encounter was of a personal nature – an altercation between mother and daughter. "Whether a family offense has been committed is a factual issue to be resolved by Family Court, and its determinations regarding the credibility of witnesses are entitled...