Tiffany W. v. James X.

196 A.D.3d 787

151 N.Y.S.3d 225

In the Matter of TIFFANY W., Appellant,

v.JAMES X. et al., Respondents.

(Proceeding No. 1.)

In the Matter of Alicia W., Respondent,

v.Tiffany W., Appellant,andJames X., Respondent.

(Proceeding No. 2.)

(And Two Other Related Proceedings.)

531570

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

Calendar Date: May 27, 2021

Decided and Entered: July 1, 2021

Lisa K. Miller, McGraw, for appellant.

Christopher Hammond, Cooperstown, for James X., respondent.

Michelle I. Rosien, Philmont, for Alicia W., respondent.

Palmer J. Pelella, Binghamton, attorney for the children.

Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeals (1) from a corrected order of the Family Court of Broome County (Connerton, J.), entered June 5, 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 (2) from an order of protection entered thereon.

Tiffany W. (hereinafter the mother) and respondent James X. (hereinafter the father) are the parents of two children (born in 2005 and 2009). In January 2016, pursuant to a stipulation between the parents and Alicia W., the mother's half sister (hereinafter the aunt), Family Court awarded the parents joint custody of the children, with primary residential custody to the aunt, and set forth specific parenting time to the mother and nonspecific parenting time to the father, and both parents were given access to the children's education and medical records and providers. In addition, the mother was ordered to "ensure [that] the [children] have no contact with" an individual who fathered the mother's youngest child and who had committed acts of domestic violence against the mother (hereinafter the stepfather). In May 2019, the mother filed an amended custody modification petition (proceeding No. 1) seeking to increase visitation, hoping that the children would be returned to her prior to the start of the September 2020 school year, which was opposed by the father and the aunt. In June 2019, while the mother's petition was pending, the aunt filed a modification petition seeking, among other things, full legal custody as to the mother and joint legal custody with the father. The aunt simultaneously filed a violation petition against the mother, alleging that the mother permitted the children to have contact with the stepfather, and a family offense petition against the mother, alleging that the mother committed various harassment-related offenses and seeking an order of protection. Following a fact-finding hearing and Lincoln hearings with each child, Family Court, by corrected order entered in June 2020, dismissed the mother's modification petition and granted the aunt's modification petition, awarding her joint custody with the father, with primary residence with the aunt, and specific parenting time to the mother and parenting time with the father as agreed to by the aunt. The court also found that the mother had willfully violated the 2016 order by "permit[ting] her daughters to have contact with the [stepfather]," but imposed no punishment for her contempt. Finally, the court granted the family offense petition and issued a one-year order of protection against the mother. The mother appeals.

"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 Tamika B. v. Pamela C., 187 A.D.3d 1332, 1334, 134 N.Y.S.3d 489 [2020] [internal quotation marks and citations 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] ; see Matter of Donald EE. v. Cheyenne EE., 177 A.D.3d 1112, 1113, 115 N.Y.S.3d 123 [2019], lvs denied 35 N.Y.3d 903, 2020 WL 2204079 [2020] ). "The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child[ren] ha[ve] 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 Tamika B. v. Pamela C., 187 A.D.3d at 1334–1335, 134 N.Y.S.3d 489 [internal quotation marks, brackets and citations omitted]; see Matter of Michael P. v. Joyce Q., 191 A.D.3d 1199, 1200, 141 N.Y.S.3d 787 [2021], lv denied 37 N.Y.3d 902, 2021 WL 2153143 [2021] ; Matter of Melissa MM. v. Melody NN., 169 A.D.3d 1280, 1281–1282, 94 N.Y.S.3d 718 [2019] ). In this case, there has been no prior finding of extraordinary circumstances and, as such, the aunt had the "heavy burden of establishing extraordinary circumstances" ( Matter of Tamika B. v. Pamela C., 187 A.D.3d at 1335, 134 N.Y.S.3d 489 [internal quotation marks and citations omitted]; see Matter of Damascus LL. v. Janelle MM., 176 A.D.3d 1408, 1409, 113 N.Y.S.3d 302 [2019] ; Matter of Chasity CC. v. Frederick DD., 165 A.D.3d 1412, 1414, 87 N.Y.S.3d 350 [2018] ). "[I]f that burden is met, the court must then determine what custodial arrangement is in the children's best interests" ( Matter of Tamika B. v. Pamela C., 187 A.D.3d at 1335, 134 N.Y.S.3d 489 ; see Matter of Chasity CC. v. Frederick DD., 165 A.D.3d at 1414, 87 N.Y.S.3d 350 ; Matter of Peters v. Dugan, 141 A.D.3d 751, 752–753, 34 N.Y.S.3d 741 [2016] ).

The testimony at the fact-finding hearing established that the mother ceded physical custody of her children to the aunt in April 2015. At that time, the mother was in a relationship with the stepfather and living with the children in Florida. After the mother became homeless and the children stopped attending school, the mother asked the aunt to "come get the girls, because they didn't have anywhere to stay." The aunt drove to Florida, picked up the children and was given a kinship form, signed by the mother, granting the aunt decision-making authority for the children for six months. The mother returned to New York in May 2015. In June 2015, following a text message dispute between the mother and the aunt, the aunt filed for sole custody of the children, resulting in the 2016 order. Prior to filing her modification petition, the mother has permitted this custodial arrangement to remain without seeking to resume her parental role.¹

The testimony further demonstrated that the mother has a long history of alcohol abuse and little concern that her continued alcohol use could ruin her chances of regaining custody. The mother was twice convicted of driving while intoxicated (hereinafter DWI), with the second arrest for DWI occurring in 2017 at 3:00 a.m. while her youngest child, then age 3, was in the car with her and while she was on probation for the first DWI conviction. The mother thereafter pleaded guilty to felony DWI and, in addition to a felony conviction, the mother was convicted of violating the terms of her probation. In this regard, the mother admitted that while her felony charge was pending, she purchased a bottle of wine, despite knowing that the purchase of alcohol was a violation of her probation that could result in her return to jail. The mother testified that she was not currently in treatment for alcohol abuse, denied being an alcoholic but admitted to having "issues with overindulgence." The mother also admitted that she may have consumed alcohol in 2019.

The mother further testified that she was involved in an abusive relationship with the stepfather during the time that the children were residing with the aunt. She described the stepfather as a violent man against whom she had obtained an order or protection. However, and despite completing a domestic violence program, the mother resumed a relationship with the stepfather and was abused by him again. During this particular incident, the stepfather assaulted her, causing serious injuries to her leg. The mother was aware that the children were afraid of the stepfather, due to his prior misconduct, and that he was not to have contact with them. Nevertheless, in June 2018, during her Saturday parenting time, the mother took the children with her to meet the stepfather in the parking lot of his apartment building and admitted that the children could see him from her car. The hearing testimony also established that the mother cancelled or shortened a series of visits with the children to, among other things, go on a double date or babysit someone else's children for pay. Moreover, the mother has demonstrated little interest in participating in the children's lives. As the testimony established, the mother has never called the children's school district to find out which school they attend or the names of their teachers, to inquire about their educational progress or to obtain their sports schedules, and she has attended only three of the children's sporting events during the past five years.

In our view, and according deference to Family Court's factual findings and credibility determinations, the foregoing reflects an "overall pattern by the mother of placing her own interests and personal relationships ahead of the child[ren] in a manner that constituted extraordinary circumstances" ( Matter of Perry v. Perry, 160 A.D.3d 1144, 1145–1146, 73 N.Y.S.3d 801 [2018] [internal quotation marks, brackets and citations omitted]; Matter of Peters v. Dugan, 141 A.D.3d at 753, 34 N.Y.S.3d 741 ). Having established extraordinary circumstances, the inquiry shifts to a best interests analysis, which involves weighing factors that include "maintaining stability in the children's lives, 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 children's intellectual and emotional development" ( Matter...