Matter of Matthew E. v. Erie County Department of Social Services

• Decision Date: 08 June 2007
• Docket Number: CAF 06-02372.
• Citation: 2007 NY Slip Op 04983,839 N.Y.S.2d 871,41 A.D.3d 1240
• Parties: In the Matter of MATTHEW E., Respondent, v. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant. In the Matter of MATTHEW E., Respondent, v. IAN M., Respondent. LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant. In the Matter of MATTHEW E., Respondent, v. CHELSEA E., Respondent. LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant. In the Matter of MICHAEL O. et al., Respondents, v. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent. LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant. In the Matter of MICHAEL O. et al., Respondents, v. CHELSEA E., Respondent. LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant. In the Matter of MICHAEL O. et al., Respondents, v. IAN M., Respondent. LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 1240

839 N.Y.S.2d 871

2007 NY Slip Op 04983

In the Matter of MATTHEW E., Respondent, v. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.

In the Matter of MATTHEW E., Respondent, v. IAN M., Respondent.

LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.

In the Matter of MATTHEW E., Respondent, v. CHELSEA E., Respondent.

LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.

In the Matter of MICHAEL O. et al., Respondents, v. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.

In the Matter of MICHAEL O. et al., Respondents, v. CHELSEA E., Respondent.

LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.

In the Matter of MICHAEL O. et al., Respondents, v. IAN M., Respondent.

LAWRENCE F. KORZENIEWSKI, ESQ., Law Guardian, Appellant.

CAF 06-02372.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided June 8, 2007.

Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered August 3, 2006 in a proceeding pursuant to Family Court Act article 6. The order granted the petitions for custody of petitioner Matthew E. and dismissed the petitions for custody of petitioners Michael O. and Yvonne O. with prejudice.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by dismissing the petitions of petitioner Matthew E. and by providing that the petitions of petitioners Michael O. and Yvonne O. are dismissed without prejudice and as modified the order is affirmed without costs.

Memorandum:

In this proceeding pursuant to Family Court Act article 6, the Law Guardian appeals from an order granting the petitions of Matthew E. seeking custody of his grandchild and dismissing the custody petitions of the child's foster parents. We agree with the Law Guardian that Family Court erred in granting the grandfather's petitions for custody of the child and erred in dismissing the foster parents' petitions for custody with prejudice, and we therefore modify the order accordingly.

With respect to the grandfather's petitions, we conclude that the court erred in failing to make an initial determination with respect to the existence of extraordinary circumstances before reaching the issue of the best interests of the child (see Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [1998]; Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 291 [1996]). We further conclude that, although custody determinations generally are accorded great deference (see Matter of Carl G. v Oneida County Dept. of Social Servs., 24 AD3d 1274, 1275 [2005]), the court in this case abused its discretion in determining that it is in the child's best interests to award custody to the grandfather (see generally Matter of Donald W., 17 AD3d 728, 729-730 [2005], lv denied 5 NY3d 705 [2005]; Matter of Tiffany Malika B., 215 AD2d 200, 201 [1995], lv denied 86...