| Matter of Lori MM. v Amanda NN. |
| 2010 NY Slip Op 06015 [75 AD3d 774] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Lori MM., Respondent, v Amanda NN.,Appellant, and Cortland County Department of Social Services, Respondent, et al.,Respondent. |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland, forCortland County Department of Social Services, respondent. Lucy P. Bernier, Oneonta, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered June 9, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for custody of petitioner's grandchild.
Petitioner is the maternal grandmother of a child born in 2003. Respondent Amanda NN.(hereinafter the mother) is the child's mother. The mother lived with petitioner both prior andsubsequent to the child's birth. In August 2006, the mother and the child moved out ofpetitioner's home following an argument that culminated in the mother striking petitioner. Afterliving in several residences, the mother and child returned to live with petitioner in January2007. In May 2007, the mother and child again left petitioner's home to live with the mother'sboyfriend. In September 2007, the mother's cousin responded to a telephone call for help from[*2]the mother and observed the boyfriend hit the mother in theface while she was holding the child and threaten the child. After taking the mother and child toa friend's house, the cousin called petitioner. Petitioner immediately commenced a proceedingseeking custody of the child and the mother thereafter consented to an award of temporarycustody of the child to petitioner, with scheduled visitation with the mother. Following asubsequent fact-finding hearing, Family Court adjudicated the child to be neglected by themother by allowing the boyfriend to inflict harm on the child, and an order of protection wasentered on behalf of the child against the boyfriend. Temporary custody with petitioner wascontinued following a dispositional hearing and the mother and the boyfriend were ordered tosuccessfully complete various evaluation and treatment programs. In December 2008, petitionercommenced this proceeding seeking permanent custody of the child. After holding a hearing,Family Court determined that extraordinary circumstances existed for petitioner to seek custodyof the child and that the best interests of the child would be served by a permanent award ofcustody to petitioner.[FN1]The mother now appeals.
We affirm. Clearly, "a biological parent has a claim of custody of his or her child, superior tothat of all others, in the absence of surrender, abandonment, persistent neglect, unfitness,disruption of custody over an extended period of time or other extraordinary circumstances"(Matter of Gray v Chambers, 222 AD2d 753, 753 [1995], lv denied 87 NY2d811 [1996]; accord Matter of VanDee vBean, 66 AD3d 1253, 1254 [2009]). In determining whether extraordinarycircumstances exist, factors to be considered include incidents of domestic violence (see Matter of Turner v Maiden 70AD3d 1214, 1215 [2010]), as well as "the length of time the child has lived with thenonparent, the quality of that relationship and the length of time the biological parent allowedsuch custody to continue without trying to assume the primary parental role" (Matter of Bevins v Witherbee, 20AD3d 718, 719 [2005]; accordMatter of Cumber v O'Leary, 56 AD3d 1067, 1070 [2008]). "Once extraordinarycircumstances have been established, the controlling consideration in determining custody is thebest interest of the child" (Matter ofBennor v Hewson, 47 AD3d 1136, 1137 [2008] [citations omitted], lv denied 10NY3d 710 [2008]). Finally, where there is conflicting evidence on relevant issues, we accordgreat deference to Family Court's findings of fact and credibility determinations (see Matter of Bronson v Bronson, 63AD3d 1205, 1206 [2009]).
Here, the record establishes that the child has lived with petitioner for the vast majority ofher life and they share a close relationship. During that time, petitioner was the child's primarycaregiver, while the mother pursued her own interests. Petitioner maintains a nice home for thechild and petitioner's 16-year-old daughter and the child is apparently thriving there. In contrast,there is evidence that the mother's boyfriend committed acts of domestic violence against themother in the child's presence, threatened the child and has locked the child in a cabinet. Inaddition, he has been the subject of indicated reports from Child Protective Services during 1993and 1994, alleging, among other things, that he had punched his own daughter in the stomach.While the record supports the mother's contention that she has completed the court-orderedparenting and anger management classes, she testified that she still lives with the [*3]boyfriend and intends to maintain that relationship.[FN2]Further, despite being provided visitation three times a week and an overnight stay eachweekend as part of the temporary custody order, the mother only exercised her visitation rightson two or three occasions in the four months following the entry of the order. These factorsclearly support Family Court's determination that extraordinary circumstances exist.
We also find ample support in the record for Family Court's conclusion that it would be inthe child's best interests to reside with petitioner. Petitioner has demonstrated that she provides aloving, nurturing home for the child. In contrast, evidence was presented that the child wasobserved to be filthy, wearing dirty clothes and living in unhealthy conditions while with themother. Further, the mother has not provided a stable home environment for the child in that shehas chosen to maintain her relationship with the boyfriend despite the boyfriend's acts ofdomestic violence against her and his threats and acts of abuse against the child. Based upon thetotality of the circumstances, we agree with Family Court that the child's best interests are servedby permanently placing her in petitioner's custody.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Inasmuch as respondentJonathan OO., the child's father, failed to appear at the hearing, Family Court granted the petitionagainst him by default.
Footnote 2: We note that, as of the date ofthe hearing, the boyfriend has failed to complete the anger management and substance abuseprograms ordered by Family Court pursuant to the finding of neglect against him.