| Matter of Rodriguez v Delacruz-Swan |
| 2012 NY Slip Op 08190 [100 AD3d 1286] |
| November 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Phillip Rodriguez, Respondent, v MarisolDelacruz-Swan, Appellant. (Proceeding No. 1.) In the Matter of Phillip Rodriguez,Respondent, v Marisol Delacruz-Swan, Appellant, and Ana Santiago, Respondent.(Proceeding No. 2.) |
—[*1] Linda A. Berkowitz, Saratoga Springs, for Phillip Rodriguez, respondent. Alexandra G. Verrigni, Rexford, for Ana Santiago, respondent.
Egan Jr., J. Appeal from an order of the Family Court of Montgomery County (Cortese, J.),entered June 14, 2011, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent Marisol Delacruz-Swan (hereinafter themother) are the parents of a daughter (born in 2001), and respondent Ana Santiago is the child'spaternal grandmother. In June 2009, the mother and father stipulated that the mother would havesole legal and physical custody of the child with specified periods of visitation to the father, andFamily Court entered an order to that effect. Insofar as is relevant here, that order required themother and father to keep each other apprised of their current address and phone number andprecluded them from being intoxicated 24 hours prior to or during any custodial period with thechild.
In September 2010, the father commenced proceeding No. 1, alleging that the motherviolated the terms of the 2009 order by relocating with the child to North Carolina and beingintoxicated in the child's presence on September 5, 2010.[FN1]The father also commenced proceeding No. 2 seeking to modify the prior order of custody, andhe proposed various custodial alternatives, including sharing joint custody of the child with thegrandmother. Although a North Carolina court adjudicated the child to be neglected and placedthe child with the grandmother, it ultimately was determined—based upon priorproceedings that had transpired in this state—that Family Court would exercise exclusiveand continuing jurisdiction over the custody and visitation issues. Family Court added thegrandmother as a named respondent in proceeding No. 2 and thereafter awarded the father andgrandmother, both of whom resided in Massachusetts, temporary legal custody of the child withphysical custody to the grandmother.
These matters proceeded to a hearing in April 2011, at the conclusion of which Family Courtawarded the father and grandmother joint legal custody of the child with primary physicalcustody to the grandmother. The mother was awarded unlimited telephone contact with the childand such visitation as the parties could mutually agree. Family Court also found the mother to bein willful violation of the 2009 custody order and imposed a 30-day suspended sentence. Thisappeal by the mother ensued.
We affirm. Initially, we reject the mother's assertion that Family Court abused its sounddiscretion in concluding that she willfully violated the 2009 custody order by relocating to NorthCarolina without providing the father with an address and telephone number where the childcould be reached and, further, by being intoxicated while caring for the child on September 5,2010. In this regard, the mother concedes that she violated the aforementioned order by beingintoxicated while the child was in her custody on that date[FN2]and, despite her protestations to the [*2]contrary, the recordreveals that the mother did not provide the father with an address or telephone number uponrelocating to North Carolina, thereby impeding the father's telephone access to the child.Accordingly, we discern no basis upon which to disturb Family Court's finding that the mother"willfully violated a clear and unequivocal mandate of the court" (Matter of Aurelia v Aurelia, 56 AD3d963, 964 [2008] [internal quotation marks and citation omitted]; see Matter of Jatie P. [Joseph Q.], 88AD3d 1178, 1180 [2011], lv dismissed 18 NY3d 878 [2012]). The mother'sassertion that the 30-day suspended sentence imposed was unduly harsh is equally unavailing.
As for Family Court's decision to divest the mother of custody, there is no question that "abiological parent has a claim of custody of his or her child, superior to that of all others, in theabsence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over anextended period of time or other extraordinary circumstances" (Matter of Carpenter v Puglese, 94AD3d 1367, 1368 [2012] [internal quotation marks and citation omitted]; accord Matter of Ferguson v Skelly, 80AD3d 903, 904 [2011], lv denied 16 NY3d 710 [2011]). That said, "the biologicalparent may be supplanted where he or she engages in 'gross misconduct or other behaviorevincing an utter indifference and irresponsibility' relative to the parental role" (Matter of James NN. v Cortland CountyDept. of Social Servs., 90 AD3d 1096, 1098 [2011], quoting Matter of Gray vChambers, 222 AD2d 753, 754 [1995], lv denied 87 NY2d 811 [1996]; see Matter of Aylward v Bailey, 91AD3d 1135, 1136 [2012]) or, alternatively, where he or she "has failed either to maintainsubstantial, repeated and continuous contact with [the] child or to plan for the child's future"(Matter of Ferguson v Skelly, 80 AD3d at 905; see Matter of Carpenter vPuglese, 94 AD3d at 1368; Matterof Golden v Golden, 91 AD3d 1042, 1043 [2012]).
By her own admission, the mother has a long-standing history of alcohol abuse. Although shesuccessfully completed a drug treatment court in 2008, the mother conceded that she continued todrink,[FN3]did not attend the required number of Alcoholics Anonymous meetings and, with the exceptionof such meetings, was not in treatment at the time of the hearing. Despite acknowledging that sheis an alcoholic, the mother did not consider her admitted intoxication on September 5,2010—or any of the other occasions when she drank—to be a relapse. In addition toher documented alcohol abuse, the mother admitted that she had a "nervous breakdown"following the September 2010 incident and alluded to unspecified mental health issues, whichappear to have gone largely unaddressed and untreated. Perhaps most disturbing, however, is themother's consistent attempts to minimize her behavior—placing a substantial portion of theblame for the September 2010 altercation upon her sister—and her limited insight intoboth her treatment needs and the effect that her behavior has upon her child's well-being.
Additionally, the record reflects that the mother had only limited telephone contact with thechild after she was placed in the grandmother's custody (for which she blamed the father and/orthe grandmother), made no attempt to gain any information regarding the child's schooling (forwhich she blamed a prior, unspecified court order) and offered no plan for the child's future.Indeed, the mother indicated that if she could not have custody of the child, she would waive her[*3]visitation rights—citing the expense associated withtraveling from North Carolina to Massachusetts, as well as her apparent lack of desire to "have avisit where there's no reunification."
In light of the foregoing, and "according [due] deference to Family Court's factual findingsand credibility determinations" (Matter of Golden v Golden, 91 AD3d at 1043), we find asound and substantial basis in the record to support Family Court's finding of extraordinarycircumstances—specifically, that the mother's demonstrated irresponsibility and failure toplan for the child's future rose to the level of persistent neglect (see Matter of Tennant v Philpot, 77AD3d 1086, 1088-1089 [2010]). Additionally, although not addressed by Family Court, weare of the view that the mother's consistent lack of judgment—stemming largely from heradmitted alcohol abuse and asserted mental health issues—is sufficient to demonstrateparental unfitness (see Matter of James NN. v Cortland County Dept. of Social Servs., 90AD3d at 1098-1099).
Finally, based upon a totality of the circumstances (see Matter of Carpenter vPuglese, 94 AD3d at 1369), we are persuaded that it is in the child's best interests to awardthe father and grandmother joint legal custody with primary physical custody to the grandmother,who has been the main source of stability in the child's life. The mother's remaining contentions,to the extent not specifically addressed, have been examined and found to be lacking in merit.
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: On that date, the mother and thematernal aunt, both of whom had been drinking heavily, became embroiled in a drunken brawl,and the child, then just shy of nine years old, sustained various injuries when she attempted tointervene. As a result of this incident, the child was removed from the mother's home and placedin foster care in North Carolina.
Footnote 2: The mother's blood alcohol levelthat evening measured .14%.
Footnote 3: The mother consumed between6 and 12 beers on the day in question, admitted that she was legally intoxicated at that point andtestified that this was not the first time she had consumed alcohol since completing the drugtreatment program.