Debra SS. v. Brian TT.

• Decision Date: 12 July 2018
• Docket Number: 524980
• Citation: 81 N.Y.S.3d 621,163 A.D.3d 1199
• Parties: In the Matter of DEBRA SS., Respondent, v. BRIAN TT., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Debra SS., Respondent, v. Brian TT., Appellant. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1199

81 N.Y.S.3d 621

In the Matter of DEBRA SS., Respondent,

v.BRIAN TT., Appellant, et al., Respondent. (Proceeding No. 1.)

In the Matter of Debra SS., Respondent,

v.Brian TT., Appellant. (Proceeding No. 2.)

524980

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

Calendar Date: June 7, 2018

Decided and Entered: July 12, 2018

Lisa A. Natoli, Norwich, for appellant.

Pamela B. Bleiwas, Ithaca, for respondent.

Martha A. Lyons, Binghamton, attorney for the child.

Before: Garry, P.J., McCarthy, Lynch, Devine and Mulvey, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeals (1) from an order of the Family Court of Broome County (Young, J.), entered April 11, 2017, which granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 8, for an order of protection, and (2) from an order of said court, entered May 9, 2017, which granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, for custody of the subject child.

Respondent Brian TT. (hereinafter the father) and respondent Nicole UU. (hereinafter the mother) are the unmarried parents of one child (born in 2008). Pursuant to a 2014 Family Court order, the father and the mother shared joint legal custody of the child, with primary physical custody to the father. At that time, the father and the child were living with petitioner, the child's paternal grandmother (hereinafter the grandmother), as well as her husband (hereinafter the stepgrandfather).

On June 30, 2016, the father and the grandmother engaged in a heated verbal exchange concerning the father having a female overnight guest, which escalated to a physical altercation between the father and the stepgrandfather. On July 6, 2016, the grandmother commenced two proceedings, one pursuant to Family Ct Act article 6, seeking joint legal custody and primary physical custody of the child, and the other pursuant to Family Ct Act article 8, alleging that the father had committed family offenses against her. Family Court issued a temporary order of protection in favor of the grandmother and a temporary order of custody granting joint legal custody of the child to the grandmother, the father and the mother, with primary physical custody to the grandmother. Following a fact-finding hearing, which was held over three days, and a Lincoln hearing with the child, Family Court found that extraordinary circumstances existed and then awarded joint legal custody of the child to the grandmother, the father and the mother, with primary physical custody to the grandmother and visitation to the father and the mother as agreed upon by the parties. Family Court also granted the grandmother's family offense petition and issued an order of protection in her favor, directing the father to refrain from, among other things, assaulting, harassing or committing any other criminal offense against her for one year. The father now appeals both orders.¹

"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], quoting 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 Heather U. v. Janice V., 152 A.D.3d 836, 837, 57 N.Y.S.3d 762 [2017] ). "The nonparent bears the burden of demonstrating the existence of such extraordinary circumstances, which may include proof that the parent has neglected to maintain substantial, repeated and continuous contact with the child[ ] or make plans for [his or her] future" ( Matter of Sweeney v. Sweeney, 127 A.D.3d 1259, 1260, 6 N.Y.S.3d 721 [2015] [internal quotation marks and citations omitted]; see Matter of Carpenter v. Puglese, 94 A.D.3d 1367, 1368, 943 N.Y.S.2d 252 [2012] ). "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 has 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 Marcia ZZ. v. April A., 151 A.D.3d 1303, 1304, 56 N.Y.S.3d 645 [2017] [internal quotation marks and citations omitted]; see Matter of Burton v. Barrett, 104 A.D.3d 1084, 1085, 961 N.Y.S.2d 610 [2013] ).

In 2009, the mother dropped off the child at the grandmother's residence after deciding to move to Georgia. At that time, the father was living at the grandmother's house. Since then, the child has resided at the grandmother's house, attending the same school from pre-kindergarten to the third grade. The father has, for brief periods of time, leased apartments, but has otherwise lived in the grandmother's house with the child. When the child was with the father at his apartment, he would drive the child back to the grandmother's house in the evening so that she could go to school the following day. When asked what he would do if Family Court returned the child to him, the father replied that he did not intend to "rip[ ] her" out of the grandmother's house and stated that he would "wean her" off of living with the grandmother over a period of time.

The record reflects that the father, at best, has an unstable work history, failing to maintain consistent employment from 2009 to 2016. In 2014, the father began accepting sporadic contract work that required him to be out of town for approximately seven weeks at a time, during which time the child would stay with the grandmother. When asked what arrangements he would make for the child the next time that he left town for work, the father responded that he would not need to accept such an offer because he had been approved for unemployment insurance benefits. Furthermore, with respect to motor vehicle payments that he had been making to the grandmother and the stepgrandfather since 2013, the father indicated that it was his plan to pay the vehicle off entirely so that he could accept a lower paying job.

The record also reflects that, in 2002, the father was diagnosed with bipolar disorder and attention deficit hyperactivity disorder. By his own admission, the father does not take prescription medication to treat these mental health issues, opting instead to self-medicate daily with marihuana. Moreover, according to the father, his mental health issues play a role in his inability to maintain long-term employment. In addition, when asked to submit to a drug test, the father failed to do so, explaining that he could not afford to take one. Notably, pursuant to the 2014 Family Court order, the father was prohibited from using illegal drugs 12 hours prior to or during any custodial period, yet he admittedly continued to smoke marihuana, and, although he does not smoke marihuana in front of the child, the child is aware of his drug use. Furthermore, while the father, who was 39 years old at the time of the fact-finding hearing, stated that he intended to go back to school and applying for Medicaid in order to address his mental health issues, it does not appear that he did anything to carry out these intentions.

We agree with Family Court that the grandmother met her burden of establishing extraordinary circumstances. The child has resided in the grandmother's household since 2009 and the grandmother has assumed the role of primary caregiver since that time. The father has maintained a good and consistent relationship with the child, but has failed to provide a stable home for the child or himself or to otherwise viably plan for her future. His failure to properly address his mental health concerns, which he concedes has contributed to his lack of employment, raises great uncertainty as to having him assume primary custody. Giving due deference to Family Court's factual findings and credibility determinations (see Matter of Curless v. McLarney, 125 A.D.3d 1193, 1197, 4 N.Y.S.3d 666 [2015] ; Matter of Arlene Y. v. Warren County Dept. of Social Servs., 76 A.D.3d 720, 721–722, 906 N.Y.S.2d 645 [2010], lv denied 15 N.Y.3d 713, 2010 WL 4628641 [2010] ), we find that Family Court's finding of extraordinary circumstances is supported by a sound and substantial basis in the record (see Matter of Marcia ZZ. v. April A., 151 A.D.3d at 1304, 56 N.Y.S.3d 645 ; Matter of Sweeney v. Sweeney, 127 A.D.3d at 1261, 6 N.Y.S.3d 721 ; Matter of Ettari v. Peart, 110 A.D.3d 1256, 1257, 973 N.Y.S.2d 456 [2013] ; compare Matter of Burton v. Barrett, 104 A.D.3d at 1085–1086, 961 N.Y.S.2d 610 ).

As for the best interests analysis, notwithstanding Family Court's failure to expressly address best interests, we may review the record and make our own independent determination (see Scott Q. v. Joy R., 151 A.D.3d 1206, 1207, 55 N.Y.S.3d 824 [2017], lv denied 29 N.Y.3d 919, 2017 WL 4015716 [2017] ). Following a finding of extraordinary circumstances, "[n]o continuing preference for the parent over the nonparent is part of the analysis; instead, factors to be taken into account include the parties' respective abilities to provide stable homes for the child[ ], their relationships with the child[ ] and ability to guide and provide for [him or her], the child[ ]'s wishes...