Lisa F. v. Thomas E.

211 A.D.3d 1367

180 N.Y.S.3d 398

In the Matter of LISA F., Respondent,

v.THOMAS E., Appellant.

(And Another Related Proceeding.)

533749

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

Calendar Date: November 16, 2022

Decided and Entered: December 22, 2022

Lisa K. Miller, McGraw, for appellant.

Tully Rinckey PLLC, Albany (Leslie A. Silva of counsel), for respondent.

Pamela B. Bleiwas, Ithaca, attorney for the child.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from an order of the Family Court of Broome County (M. Rita Connerton, J.), entered June 21, 2021, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject child.

Respondent (hereinafter the father) is the sole living parent of the subject child (born in 2019) and was married to the child's mother from 2016 until her death in January 2020, when the child was only 4½ months old. The father has been incarcerated since the child's birth. Upon the mother's death, Broome County Child Protective Services (hereinafter CPS) placed the child with petitioner, the child's maternal great aunt by marriage, who had been caring for the child's maternal half brother for more than four years pursuant to a CPS placement.

In February 2020, petitioner commenced the first of these two Family Ct Act article 6 proceedings seeking custody of the child, citing the father's status as an incarcerated person, her custody of the child's half brother and the subject child's serious medical issues. That same day, Family Court granted petitioner temporary custody of the child and scheduled a hearing.

Thereafter, in August 2020, the father filed a document denominated "Affidavit in Support to Obtain Custody of Child" in which he asked that the child's paternal grandfather – Thomas D. (hereinafter the grandfather) – be awarded legal custody and guardianship of the child until the father's release from prison.¹ The grandfather then formally commenced the second of these proceedings seeking custody of the child himself. Following a joint fact-finding hearing on both petitions, the court awarded sole custody of the child to petitioner, with a schedule of telephone calls for the father – including dates and times during which petitioner was to be available to accept such calls – and dismissed the grandfather's petition. The father and, separately, the grandfather, appeal.

The grandfather did not perfect his appeal or otherwise participate. Consequently, his appeal is deemed dismissed (see 22 NYCRR 1250.10 [a]; Matter of Jihad N. [Devine N.], 180 A.D.3d 1164, 1165 n., 119 N.Y.S.3d 607 [2020] ). Turning to the father's appeal, his arguments regarding the February 2020 temporary custody order are moot, for that order was superseded by the June 2021 custody order now on appeal, which was issued following an evidentiary hearing at which all parties were afforded a meaningful opportunity to participate (see Matter of Eckstein v. Young, 176 A.D.3d 813, 814, 112 N.Y.S.3d 227 [2d Dept. 2019], lv denied 34 N.Y.3d 911, 2020 WL 1426432 [2020] ; Matter of Miedema v. Miedema, 144 A.D.3d 803, 804, 40 N.Y.S.3d 559 [2d Dept. 2016] ; Matter of Posporelis v. Posporelis, 41 A.D.3d 986, 988, 838 N.Y.S.2d 681 [3d Dept. 2007] ).

With respect to the final custody order, we reject the father's assertion that petitioner did not establish extraordinary circumstances. "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, 52 N.Y.S.3d 515 [3d Dept. 2017] [citation omitted], quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ; accord Matter of Jared MM. v. Mark KK., 205 A.D.3d 1084, 1086–1087, 168 N.Y.S.3d 555 [3d Dept. 2022] ). Where no prior extraordinary circumstances finding has been made, "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" ( Matter of Jared MM. v. Mark KK., 205 A.D.3d at 1087, 168 N.Y.S.3d 555 ; see Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ; Matter of Tiffany W. v. James X., 196 A.D.3d 787, 789, 151 N.Y.S.3d 225 [3d Dept. 2021] ). Such inquiry necessitates "consideration of the ‘cumulative effect of all issues present in a given case’ " ( Matter of Jared MM. v. Mark KK., 205 A.D.3d at 1087, 168 N.Y.S.3d 555, quoting Matter of Michael P. v. Joyce Q., 191 A.D.3d 1199, 1200, 141 N.Y.S.3d 787 [3d Dept. 2021], lvs denied 37 N.Y.3d 901, 902, 146 N.Y.S.3d 593, 590, 169 N.E.3d 1228, 960 [2021]), "includ[ing] the quality of the child[ ]’s relationship with the parents and the nonparent, whether the child[ ] ha[s] lived with the nonparent for any length of time and any neglect by the parents" ( Matter of Shaver v. Bolster, 155 A.D.3d 1368, 1369, 65 N.Y.S.3d 344 [3d Dept. 2017] ).

Upon demonstrating the existence of extraordinary circumstances, " ‘Family Court may then proceed to the issue of whether an award of custody to the nonparent, rather than the parent, is in the child's best interests’ " ( Matter of Michael P. v. Joyce Q., 191 A.D.3d at 1200, 141 N.Y.S.3d 787, quoting Matter of Donna SS. v. Amy TT., 149 A.D.3d at 1212–1213, 52 N.Y.S.3d 515 ). The court's custody determination " ‘will not be disturbed so long as it is supported by a sound and substantial basis in the record’ " ( Matter of Charity K. v. Sultani L., 202 A.D.3d 1346, 1347–1348, 164 N.Y.S.3d 250 [3d Dept. 2022], quoting Matter of Cecelia BB. v. Frank CC., 200 A.D.3d 1411, 1414, 161 N.Y.S.3d 366 [3d Dept. 2021] ).

The father asserts that Family Court placed undue emphasis on his incarceration as the basis for its extraordinary circumstances finding, arguing that such fact "did not necessarily equate to parental unfitness sufficient to supplant [his] custodial decision-making power." Although a parent's incarceration does not, standing alone, per se constitute an extraordinary circumstance (compare Matter of Washington v. Stoker, 114 A.D.3d 1147, 1147, 980 N.Y.S.2d 186 [4th Dept. 2014], with Matter of Ratliff v. Glanda, 263 A.D.2d 816, 817, 693 N.Y.S.2d 319 [3d Dept. 1999] ), that is not the only factor at play here. As noted by Family Court, the mother, who had been the child's primary custodian for the first few months of her life, was deceased. Additionally, at the time of the hearing, the child had never met the father, had only met the grandfather on one occasion, had been in petitioner's custody since the mother's death, enjoyed a close relationship with petitioner and the older half brother, who was also in petitioner's care, and had serious medical issues that were being appropriately addressed by petitioner.² When considering the "combined effect of [all] factors" presented, we conclude that there is a sound and substantial basis in the record to support the extraordinary circumstances finding ( Matter of Pettaway v. Savage, 87 A.D.3d 796, 797–798, 928 N.Y.S.2d 869 [3d Dept. 2011], lv denied 18 N.Y.3d 801, 2011 WL 6155545 [2011] ; see Matter of Banks v. Banks, 285 A.D.2d 686, 688, 726 N.Y.S.2d 795 [3d Dept. 2001] ).

Turning to the best interests inquiry, we readily agree with Family Court's finding that it was in the child's best interests to remain with petitioner, who had a proven track record in caring for the child's half sibling. Although the father and the grandfather may well love the child, the fact remains that, at the time of the hearing, neither of them had any sort of relationship with the child, nor had they...