Campbell v. January

• Decision Date: 07 February 2014
• Parties: In the Matter of Sabrina CAMPBELL, Petitioner–Respondent, v. Margaret JANUARY, Respondent–Respondent, and Bennie Carter, Sr., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1176
979 N.Y.S.2d 740
2014 N.Y. Slip Op. 00813

In the Matter of Sabrina CAMPBELL, Petitioner–Respondent,
v.
Margaret JANUARY, Respondent–Respondent,
and
Bennie Carter, Sr., Respondent–Appellant.

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

Feb. 7, 2014.

Mark D. Funk, Rochester, for Respondent–Appellant.

Sercu & Sercu LLP, Pittsford (Lara R. Badain of Counsel), for Petitioner–Respondent.

M. Thomas Scott & Associates, Grand Island (Mary Thomas Scott of Counsel), for Respondent–Respondent.

Sanford A. Church, Attorney for the Child, Albion.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, and VALENTINO, JJ.

MEMORANDUM:

On appeal from an order granting sole custody of the subject child to petitioner, a nonparent, respondent father contends that there was no showing of extraordinary circumstances. We reject that contention. It is well settled that, “as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' ” ( Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see Matter of Howard v. McLoughlin, 64 A.D.3d 1147, 1147, 881 N.Y.S.2d 766). Here, the record

[979 N.Y.S.2d 741]

establishes that respondent mother placed the child with petitioner just days after his birth in February 2010, and the father disputed that he was the father of the child even after receiving the results of a DNA test confirming that he was. The father did not seek custody of the child until the child was almost one year old, after an order of filiation was entered. The father visited the child for the first time in January or February 2012, and had only six or seven visits before he stopped attending when the visits were moved to petitioner's home around April 2012. The child has significant medical conditions and special needs requiring various forms of treatment, and the father demonstrated that he has no interest in learning about the child's conditions and needs and how to treat them ( see Matter of Brault v. Smugorzewski, 68 A.D.3d 1819, 1819, 890 N.Y.S.2d 866; Matter of Ronald I. v. James J., 53 A.D.3d 706, 707, 861 N.Y.S.2d 182). We therefore agree with Family Court that extraordinary circumstances were present here. We...