| Matter of Garrett D. v Kevin L. |
| 2008 NY Slip Op 08841 [56 AD3d 1183] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Garrett D., Appellant, v Kevin L.,Respondent. |
—[*1] Alice J. Hooker, Law Guardian, Middlesex, for Kimahri D.
Appeal from an order of the Family Court, Ontario County (Maurice E. Strobridge, J.H.O.),entered June 21, 2007 in a proceeding pursuant to Family Court Act article 6. The order, interalia, awarded custody of petitioner's child to respondent.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father appeals from an order that, inter alia, awarded custody of hisone-year-old child to respondent, the child's maternal grandfather. By failing to object to the LawGuardian's continued representation of the child, the father failed to preserve for our review hiscontention that Family Court should have disqualified the Law Guardian because she discussedmatters relating to visitation with the grandfather during the course of the proceedings (seegenerally Matter of Wood v Hargrave, 292 AD2d 795 [2002], lv denied 98 NY2d608 [2002]; Matter of Lisa S. v William S., 187 AD2d 435 [1992]). In any event, wereject the father's characterization of the Law Guardian's discussions with the grandfather as legaladvice. The grandfather had temporary custody of the child, and we conclude that the LawGuardian acted appropriately in her role as the legal representative of the child.
The father also failed to preserve for our review his contention that the court erred inadmitting hearsay testimony in evidence at the hearing. In any event, we conclude that any errorin the admission of the hearsay testimony in question is harmless inasmuch as all but one of thehearsay declarants testified at the hearing and were available for cross-examination, and theevidence demonstrating that the father was an unfit parent was overwhelming (see generally Matter of Penny K. v AleshaT., 39 AD3d 1232, 1233-1234 [2007]). As we have concluded, the court did not err inadmitting the hearsay testimony and, thus, contrary to the further contention of the father, itcannot be said that his attorney was ineffective for failing to object to the admission of thehearsay testimony.
Also contrary to the contention of the father, we conclude that the grandfather established theexistence of the requisite extraordinary circumstances to warrant inquiry into the best interests ofthe child with respect to the issue of custody (see generally Matter of Bennett v [*2]Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Kreger vNewell, 221 AD2d 630, 630-631 [1995]). The evidence presented at the hearing establishedthat the father voluntarily relinquished physical custody of the child to the grandfather and thatthe father is otherwise unfit to regain custody of the child, in view of his history of violence withthe child's mother and his unstable living arrangements (see generally Matter of Cote vBrown, 299 AD2d 876, 877 [2002]). We further conclude that the award of custody to thegrandfather is in the best interests of the child (see generally Matter of Dickson vLascaris, 53 NY2d 204, 208-209 [1981]; Bennett, 40 NY2d at 548). Finally, wereject the contention of the father that the court erred in limiting his visitation. The recordestablishes that the father, who was represented by counsel, agreed to the terms of visitation.Present—Scudder, P.J., Martoche, Lunn, Peradotto and Green, JJ.