Anne MM. v. Vasiliki NN.

• Decision Date: 31 March 2022
• Docket Number: 530769, 531470
• Citation: 203 A.D.3d 1476,165 N.Y.S.3d 629
• Parties: In the Matter of ANNE MM. et al., Respondents, v. VASILIKI NN., Appellant, and Christopher OO., Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1476

165 N.Y.S.3d 629

In the Matter of ANNE MM. et al., Respondents,

v.VASILIKI NN., Appellant,andChristopher OO., Respondent.

(And Another Related Proceeding.)

530769, 531470

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

Calendar Date: February 10, 2022

Decided and Entered: March 31, 2022

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Jessica Hugabone Vinson of counsel), for appellant.

Donnellan Law, PLLC, Ballston Spa (Katherine L. Mastaitis of counsel), for Anne MM. and another, respondents.

Cheryl L. Sovern, Malta, for Christopher OO., respondent.

Elena Jaffe Tastensen, Saratoga Springs, attorney for the child.

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

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeals from an order and an amended order of the Family Court of Saratoga County (Pelagalli, J.), entered December 30, 2019 and March 26, 2020, which, among other things, granted petitioners’ application, in a proceeding pursuant to Family Ct Act article 6, for custody of respondents’ child.

Respondent Vasiliki NN. (hereinafter the mother) and respondent Christopher OO. (hereinafter the father) are the parents of a child (born 2014). In December 2017, the father was arrested for, among other things, possessing drugs and drug paraphernalia and endangering the welfare of a child, after he was found asleep behind the wheel of a parked vehicle containing the child. Petitioners, the child's maternal grandparents (hereinafter the grandparents), filed two petitions in January 2018, one seeking custody of the child and the other seeking visitation with the child. In February 2018, Family Court ordered that the grandparents were to immediately have sole legal and physical custody of the child. Thereafter, in November 2018, Family Court entered an order of protection directing the mother to ensure that the father not have contact with the child and that the paternal grandmother supervise the father's parenting time. Family Court subsequently entered a temporary order of custody and parenting time, awarding joint legal custody to the mother and the grandparents with primary physical custody of the child awarded to the grandparents.

Following a fact-finding hearing, Family Court, by order entered in December 2019, found that the grandparents had established extraordinary circumstances as to the father but not the mother but nevertheless granted both petitions awarding them and the mother joint legal and shared physical custody of the child, with the grandparents having physical custody of the child every Friday through Sunday during the school year and every Thursday through Sunday during the summer. In January 2020, Family Court issued an amended order of protection against the father, which directed the mother to ensure that the father have no contact with the child until her eighteenth birthday.

Subsequently, in March 2020, Family Court issued an amended order directing the mother to, among other things, provide the court with a copy of her residential lease or a notarized statement from her landlord and that the parties continue to keep each other updated as to any change in residence address.¹ The mother appeals from the December 2019 order and the March 2020 amended order.

As a threshold matter, this Court takes judicial notice of an August 2021 order, entered upon consent of the parties, which provided that the grandparents no longer have legal custody of the child but will continue to be entitled to grandparent "visitation" as set forth in the December 2019 order. However, due to the implications of the August 2021 order, it is uncertain if Family Court, in its December 2019 order, awarded the grandparents a shared physical custody arrangement as part of the custody petition or an extensive visitation arrangement pursuant to the visitation petition. Further, as the August 2021 order does not purport to supersede or vacate the December 2019 order, nor does it modify that portion of the December 2019 order as awarded the grandparents physical custody and/or visitation of the child, which the mother is challenging, the mother's challenges to those parts of the December 2019 order are not moot (see Matter of Nicole B. v. Franklin A., 185 A.D.3d 1166, 1166, 127 N.Y.S.3d 626 [2020] ; Matter of William O. v. Wanda A., 151 A.D.3d 1189, 1190, 55 N.Y.S.3d 810 [2017], lv denied 30 N.Y.3d 902, 67 N.Y.S.3d 128, 89 N.E.3d 518 [2017] ).²

Turning to the question of physical custody, the mother initially contends that the grandparents lacked standing to seek physical custody in their petition because they failed to satisfy their heavy burden of establishing the presence of 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 [2017] [internal quotation marks and citations omitted]; see Matter of William O. v. Wanda A., 151 A.D.3d at 1191, 55 N.Y.S.3d 810 ). "That said, the parent in question may be supplanted where he or she engages in gross misconduct or other behavior evincing an utter indifference and irresponsibility relative to the parental role. Examples of behaviors that may, in the aggregate, rise to the level of extraordinary circumstances include allowing the child[ ] to live in squalor, failing to address serious substance abuse or mental health issues, instability in the parent's housing or employment situation, the questionable use of corporal punishment as a means of discipline and other similar behaviors that reflect the parent's overall pattern of placing his or her own interests and personal relationships ahead of the child[ ]" ( Matter of Renee TT. v. Britney UU., 133 A.D.3d 1101, 1102–1103, 21 N.Y.S.3d 368 [2015] [internal quotation marks, brackets and citations omitted]). "Once extraordinary circumstances have been established, 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 1199, 1200, 141 N.Y.S.3d 787 [2021] [internal quotation marks and citation omitted], lvs denied 37 N.Y.3d 901, 902, 146 N.Y.S.3d 593, 169 N.E.3d 1228 [2021] ; Matter of Shaver v. Bolster, 155 A.D.3d 1368, 1369, 65 N.Y.S.3d 344 [2017] ).

The record reflects that the child was not subject to surrender, abandonment or persistent neglect nor is the mother unfit. Although the father was the subject of an indicated report relative to the incident when he fell asleep in his vehicle with drug paraphernalia near the child, a finding of neglect was not indicated as to the mother. Moreover, this was an isolated incident and not part of a pattern of persistent neglect. Although there was evidence that the father has a history of drug abuse and criminal convictions, the mother has neither. There was no evidence that the child was at risk of being harmed while in the mother's care; instead, the record demonstrates that the mother provided appropriate shelter, clothing, food and medical attention to the child. Additionally, the mother did not allow the father to have contact with the child in accordance with Family Court's orders. As Family Court found that the grandparents did not meet their burden on extraordinary circumstances as to the mother, the court erred in engaging in a best interests analysis and, instead, the custody petition should have been dismissed (see Matter of Hawkins v. O'Dell, 166 A.D.3d 1438, 1440–1441, 89 N.Y.S.3d 374 [2018] ; Matter of Donna SS. v. Amy TT., 149 A.D.3d at 1215, 52 N.Y.S.3d 515 ; Matter of Brown v. Comer, 136 A.D.3d 1173, 1175–1176, 25 N.Y.S.3d 424 [2016] ; Matter of Burton v. Barrett, 104 A.D.3d 1084, 1086, 961 N.Y.S.2d 610 [2013] ).

Turning to the visitation petition, the mother contends that, as with their petition for custody, the grandparents lack standing to seek visitation. "Pursuant to Domestic Relations Law § 72, grandparents may seek visitation with their grandchild[ ] where they can establish circumstances in which equity would see fit to intervene" ( Matter of Susan II. v. Laura JJ., 176 A.D.3d 1325, 1327, 112 N.Y.S.3d 798 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 909, 2020 WL 728736 [2020] ; see Matter of Melissa X. v. Javon Y., 200 A.D.3d 1451, 1451, 161 N.Y.S.3d 362 [2021] ). "This showing can be made by establishing a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention" ( Matter of Melissa X. v. Javon Y., 200 A.D.3d at 1451, 161 N.Y.S.3d 362 [internal quotation marks, brackets and citations omitted]). "Notably, essential components of the standing inquiry are the nature and extent of the grandparent-grandchild relationship and the nature and basis of the parent's objection to visitation. If standing is...