| Matter of Kowalsky v Converse |
| 2010 NY Slip Op 09040 [79 AD3d 1310] |
| December 9, 2010 |
| Appellate Division, Third Department |
| In the Matter of LaLonie Kowalsky et al., Respondents, v AlanConverse, Appellant, et al., Respondent. (And Another RelatedProceeding.) |
—[*1] Law Offices of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for respondents. Elizabeth Donahue, Glens Falls, attorney for the child.
Malone Jr., J. Appeal from an order of the Family Court of Warren County (Breen, J.), datedSeptember 25, 2009, which, among other things, granted petitioners' application, in two proceedingspursuant to Family Ct Act article 6, for custody of the subject child.
In February 2007, the subject child (born in 1998) was removed from the custody of her father,respondent Alan Converse (hereinafter the father), and her mother after the parents' house was deemedunfit and unsafe. During the pendency of an ensuing neglect proceeding, the child was placed withpetitioners, her paternal aunt and uncle, in their home in Pennsylvania. Thereafter, respondent CourtneyConverse, the child's half sister (hereinafter the sister), and the father were awarded joint legal custodyof the child, with primary physical custody with the [*2]sister.[FN1]However, the sister relinquished custody of the child several months later, at which time the child wasreturned to petitioners' care pursuant to a temporary order of custody and visitation.
In 2009, petitioners and the father commenced separate proceedings seeking sole legal andphysical custody of the child. Following a fact-finding hearing, Family Court found that petitioners haddemonstrated that extraordinary circumstances existed justifying an award of custody to a nonparentand, upon a consideration of the child's best interests, awarded petitioners sole legal and physicalcustody. The father appeals.
"It is fundamental that a biological parent has a claim of custody of his or her child, superior to thatof all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption ofcustody over an extended period of time or other extraordinary circumstances" (Matter of Moseley v White, 74 AD3d1424, 1425 [2010] [internal quotation marks and citations omitted]; see Matter of VanDee v Bean, 66 AD3d1253, 1254 [2009]). Here, the evidence at the fact-finding hearing reveals that, at the time thechild was removed from the father's care, the father's house was an unsanitary and inappropriateenvironment for the child. Among other things, the child was inadequately clothed and fed, she wasexposed to used and unsecured syringes and medicines, and the house was littered with animal feces,garbage and debris. After the child was removed from his care, the father told the child that he wantedto die and threatened to kill himself in front of her. The father admitted that he had suffered from suicidalideation after his wife died and suffered from depression, although he did not regularly attend treatment.While the child was in her sister's care, the father did not make an effort to attend the child's medicalappointments or be involved in her counseling sessions. In the year prior to the hearing, the fathervisited the child at petitioners' house only twice, despite petitioners' offer of assistance to him.
In contrast, the evidence established that petitioners have cared for the child since 2007, other thana few months in 2008 when she was in her sister's care, and have provided a safe and stableenvironment for her. In petitioners' care, the child regularly attends counseling, is successful in schooland has made friends there, and has bonded with petitioners and their three children. Considering all ofthe foregoing, and according deference to Family Court's credibility determinations and resolution ofconflicting testimony, we find that Family Court's determination that extraordinary circumstances existedis supported by substantial evidence in the record (see Matter of Moseley v White, 74 AD3dat 1426; Matter of Melody J. v ClintonCounty Dept. of Social Servs., 72 AD3d 1359, 1360 [2010], lv denied 15 NY3d703 [2010]). "Once extraordinary circumstances have been established, the controlling consideration indetermining custody is the best interest of the child" (Matter of Bennor v Hewson, 47 AD3d 1136, 1137 [2008], lvdenied 10 NY3d 710 [2008] [citations omitted]; accord Matter of Lori MM. v Amanda NN., 75 AD3d 774, 775[2010]).
In that regard, the record reflects that custody to petitioners is in the child's best interest. The fathersuffers from physical ailments and medical disabilities that prevent him from being able to adequatelyprovide for the child's care. Specifically, he testified that he has knee and hip problems that impair hismobility and that he has certain medical conditions that require him to take many medications. Inaddition, the hearing testimony of the father's two adult children, as well as evidence of several indicatedchild protective services reports against him, established that the father has an extensive history ofinadequately caring for and providing for his children. [*3]On the otherhand, by all accounts, petitioners are providing the child with excellent care. Further, the childexpressed a strong desire to continue to reside with petitioners and enjoys a close and lovingrelationship with them and their children. Accordingly, the record supports a finding that an award ofsole custody to petitioners is in the child's best interests.
Finally, Family Court's visitation award guarantees the father four supervised visits per year in NewYork and twice weekly telephone contact, as well as supervised visitation at petitioners' house as theparties may agree. This arrangement provides the father with regular access to the child more frequentlythan he has historically exercised. Moreover, there is sufficient evidence in the record to support thecourt's order that the father's visitation be supervised, including evidence indicating that visitation withthe father had caused the child some anxiety in the past.[FN2]
We have reviewed the father's remaining contentions and find they are lacking in merit.
Mercure, J.P., Peters, Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: The child's mother died in June2007.
Footnote 2: Although not determinative, we notethat the attorney for the child supported an award of custody to petitioners and agreed that the father'svisitation should be supervised.