| Matter of Golden v Golden |
| 2012 NY Slip Op 00141 [91 AD3d 1042] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey Wayne Golden,Respondent, v Christina M. Golden et al., Respondents, and Bradley A. Rice, Appellant.(And Two Other Related Proceedings.) |
—[*1] Natalie B. Miner, Homer, for Jeffrey Wayne Golden, respondent. Abbie Goldbas, Utica, for Christina M. Golden and another, respondents. Andrew J. Mooney, Ithaca, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered October 18, 2010, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, for custody of the children of respondentsChristina M. Golden and Bradley A. Rice.[*2]
Respondent Christina M. Golden (hereinafter the mother)and respondent Bradley A. Rice (hereinafter the father) are the parents of two children (born in2007 and 2009). After living together for several years, they separated in 2009, shortly before theyoungest child was born. The mother and the children thereafter stayed with petitioner, themother's father (hereinafter the grandfather), for several months before moving into an apartmentof their own. In January 2010, respondent Cortland County Department of Social Services(hereinafter DSS) investigated several reports regarding the mother and her boyfriend and theirinadequate guardianship of the children. As a result, the mother voluntarily entered into a "safetyplan," thereby placing the children with the grandfather.[FN1]DSS informed the father of the investigation and this plan in March 2010, and he filed a petitionfor custody of the older child shortly thereafter. In May 2010, after an order of filiation wasentered relative to the younger child, he filed a petition for her custody also. The grandfather alsofiled a custody petition for both children in May 2010.[FN2]Family Court ordered an investigation pursuant to Family Ct Act § 1034 in March 2010,awarded temporary custody of both children to the grandfather with supervised visitation to thefather in May 2010, and conducted a fact-finding hearing in August 2010. At the close of thefact-finding hearing, the father moved to dismiss the grandfather's custody petition. Family Courtdenied this motion, dismissed the father's custody petitions, awarded sole custody of the childrento the grandfather, and maintained the father's supervised visitation. The father appeals,contending that the grandfather failed to prove extraordinary circumstances.
Absent a showing of " 'surrender, abandonment, persistent neglect, unfitness, disruption ofcustody over an extended period of time or other extraordinary circumstances,' " a parent has aclaim of custody to his or her child that is superior to all others (Matter of Ferguson v Skelly, 80 AD3d903, 904 [2011], lv denied 16 NY3d 710 [2011], quoting Matter of Gray vChambers, 222 AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]). Persistentneglect is demonstrated by a failure "to maintain substantial, repeated and continuous contactwith a child or to plan for the child's future" (Matter of Arlene Y. v Warren County Dept. of Social Servs., 76 AD3d720, 721 [2010], lv denied 15 NY3d 713 [2010] [internal quotation marks andcitations omitted]; see Social Services Law § 384-b [7] [a]; Matter ofBisignano v Walz, 164 AD2d 317, 319-320 [1990]). Additional factors to be considered inan extraordinary circumstances analysis include " '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 Tennant v Philpot, 77 AD3d1086, 1087 [2010], quoting Matterof Bevins v Witherbee, 20 AD3d 718, 719 [2005]; accord Matter of Ferguson vSkelly, 80 [*3]AD3d at 905). The burden of establishingextraordinary circumstances rests with the nonparent seeking custody (see Matter of Daphne OO. v FrederickQQ., 88 AD3d 1167, 1168 [2011]; Matter of Turner v Maiden, 70 AD3d 1214, 1215 [2010]). If thisburden is met, custody is then determined based upon the best interests of the child (seeMatter of Tennant v Philpot, 77 AD3d at 1087-1088; Matter of Lori MM. v Amanda NN., 75 AD3d 774, 775 [2010]).
Here, we initially note that the mother stipulated to extraordinary circumstances at thefact-finding hearing based upon her inability to provide for the children and unaddressed mentalhealth issues. As to the father, according deference to Family Court's factual findings andcredibility determinations, we find a sound and substantial basis in the record supporting theexistence of extraordinary circumstances (see Matter of Ferguson v Skelly, 80 AD3d at905; Matter of Magana v Santos, 70AD3d 1208, 1209 [2010]).
The father testified at the fact-finding hearing that he had not used illegal drugs for manyyears and did not abuse alcohol. The mother, however, testified that while they were together, thefather had grown a marihuana plant, smoked marihuana frequently—even in front of theolder child—and often drank to the point of intoxication. A DSS caseworker whoconducted an unannounced visit of the father's apartment in March 2010 testified that she found a30-pack of beer in the father's refrigerator, a shelf displaying 10 to 15 empty whiskey bottles, anda glass marihuana pipe. She also observed numerous, unlocked pellet guns displayed on a shelfabove the father's couch. Family Court was not satisfied by the father's explanations concerningthese items "[b]ecause of his total lack of credibility." Although the father has been consistentlyemployed, he has also frequently changed both jobs and apartments, posing issues as to thestability of his employment and living arrangements.
More troubling is the father's inconsistent involvement in the children's lives. The testimonyrevealed that when the older child was born, he rarely assisted with her care, preferring thatsomeone else see to the child's needs. He initially questioned the paternity of the younger child,and has failed to provide any support, in the form of either supplies or money, to anyone caringfor the children. The father did not visit with the children at all for several months following hisseparation from the mother, and only began to regularly see the children in May 2010, after filingfor custody. Family Court then established a schedule of supervised visitation at the grandfather'shome, but the father has remained inattentive to the children during these visits, and frequentlyends them early. During his time with the children, he often uses his cell phone to call or textothers. In addition, he has allowed the older child to engage in risky behavior, shows littleinterest in the younger child, and refuses to change diapers. Both the caseworker and the father'sattorney recommended that the father attend classes to improve his parenting skills, but he hasfailed to do so. Considering all of the above, the evidence supports a finding of extraordinarycircumstances (see Matter of Cumber vO'Leary, 56 AD3d 1067, 1070 [2008]; Matter of McDevitt v Stimpson, 1 AD3d 811, 813 [2003], lvdenied 1 NY3d 509 [2004]).
Next, a sound and substantial basis in the record supports Family Court's best interests [*4]analysis and the award of custody to the grandfather (see Matterof Tennant v Philpot, 77 AD3d at 1089; Matter of Turner v Maiden, 70 AD3d at1216-1217). The grandfather has worked as a farmhand and has maintained the same home for28 years. His job allows him to come home several times per day to spend time with the children.His longtime, live-in girlfriend previously worked at a child-care center as both a cook and atoddler teacher; she has also worked as a nanny. The children have an established schedule, andthe older child's behavior has greatly improved while under the grandfather's care. Accordingly,we find no reason to disturb Family Court's determination (see Matter of Cumber vO'Leary, 56 AD3d at 1070-1071).
Peters, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Immediately prior toimplementation of this plan, the children were in the care of the mother's cousin forapproximately one month.
Footnote 2: The grandfather's initial custodypetition for the children, filed in March 2010, was dismissed for failure to allege extraordinarycircumstances.