| Matter of Fynn S. |
| 2008 NY Slip Op 09121 [56 AD3d 959] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Fynn S., a Neglected Child. Chenango CountyDepartment of Social Services, Respondent; Justin S., Appellant. (Proceeding No. 1.) In theMatter of Linda LL., Respondent, v Sara MM., Respondent, and Justin S., Appellant.(Proceeding No. 2.) (And Another Related Proceeding.) |
—[*1] Sarah Fitzpatrick, Chenango County Department of Social Services, Norwich, for ChenangoCounty Department of Social Services, respondent. Kathleen M. Spann, Whitney Point, for Linda LL. Randolph Kruman, Law Guardian, Cortland.
Stein, J. Appeals (1) from an order of the Family Court of Chenango County (Campbell, J.),entered July 26, 2006, which granted petitioner's application, in proceeding No. 1 pursuant toFamily Ct Act article 10, to hold respondent in violation of a prior order, and (2) from an order ofsaid court, entered May 31, 2007, which granted petitioner's application, in proceeding No. 2pursuant to Family Ct Act article 6, for custody of respondents' child.
Respondent Justin S. (hereinafter the father) is the father of the subject child (born in 2005).In January 2006, the father consented to a finding of neglect against him based upon his failure toprovide for the child's safety and well-being and, upon such finding, to a suspended judgment. Asa result, a suspended judgment was imposed by Family Court that included, among others,conditions that required him to maintain a stable residence, allow access to his residence forinspection by petitioner in proceeding No. 1, the Chenango County Department of SocialServices (hereinafter DSS), and follow all recommendations resulting from evaluationspertaining to treatment and counseling for anger management and drug and alcohol abuse.
Approximately one month after entry of the suspended judgment, DSS commenced the firstof these proceedings alleging a violation of the suspended judgment based upon the father'sfailure to comply with the terms set forth therein. After a hearing, Family Court found that thefather was noncompliant and vacated the suspended judgment.
Linda LL., the subject child's maternal grandmother (hereinafter the grandmother),commenced the second of these proceedings seeking custody of the child. The child had beenplaced with the grandmother since July 2005, when the child was four months old. Family Courtawarded the grandmother custody of the child after finding that permanent placement with herserved the child's best interests and awarded unsupervised visitation to respondent Sara MM.(hereinafter the mother). The father was awarded supervised visitation with the child.Respondent appeals from both the order vacating the suspended judgment in proceeding No. 1and the order of custody and visitation in proceeding No. 2. We affirm.
Initially, we find that Family Court properly determined that the father was in violation of theterms of the suspended judgment. It is well settled that a court may revoke an order of asuspended judgment upon a showing by a preponderance of the evidence that a parent violatedthe suspended judgment (see Family Ct Act § 1071; Matter of Michael B.,80 NY2d 299, 311 [1992]; Matter ofEdward GG., 35 AD3d 1144, 1144-1145 [2006]; Matter of Frederick MM., 23 AD3d 951, 952 [2005]). "[L]iteralcompliance with the terms of the suspended judgment will not suffice [to prevent a finding of aviolation]. A parent must show that progress has been made to overcome the specific problemswhich led to the removal of the child" (Matter of Jonathan P., 283 AD2d 675, 676[2001], lv denied 96 NY2d 717 [2001]; see Matter of Jennifer VV., 241 AD2d622, 623 [1997]).
Here, we are unpersuaded by the father's contention that he was compliant with the terms ofthe suspended judgment and that, if he was not compliant, it was the fault of DSS. The evidencedemonstrated that the father failed to maintain stable housing in that he had at least fourresidences in a three-year period. In fact, at one point, he was living in his car. "[T]he failure to[*2]obtain appropriate housing as required can, alone, constitutegrounds for the revocation of a suspended judgment" (Matter of Frederick MM., 23AD3d at 953). Furthermore, the father refused to allow access to his residence for inspection byDSS on more than one occasion and he even threatened to have the caseworkers arrested if theymade a further attempt to do so. In addition, the father was discharged from his treatmentsessions because of his "negative attitude and disruptive participation." His treatment counselortestified that he "became challenging and antagonistic and verbally inappropriate with [her]."Despite being offered the opportunity to reengage in treatment, the father did not complete therecommended alcohol and drug counseling or treatment for his domestic violence issues.
Addressing next Family Court's award of custody of the child to the grandmother, we notethat "[t]he [s]tate may not deprive a parent of the custody of a child absent surrender,abandonment, persisting neglect, unfitness or other like extraordinary circumstances" (Matterof Bennett v Jeffreys, 40 NY2d 543, 544 [1976]), and that, upon a finding of extraordinarycircumstances, a court must determine the best interests of the child (see id. at 548). "Inascertaining whether extraordinary circumstances exist, factors to be considered include thelength of time the child has lived with the nonparent, [and] the quality of that relationship" (Matter of Bevins v Witherbee, 20AD3d 718, 719 [2005] [citation omitted]).
Here, after stipulating to a finding of neglect, the father failed to abide by the terms of thesuspended judgment by failing to maintain stable housing and to obtain appropriate treatment andcounseling, among other things. There was also evidence that he had committed acts of domesticviolence in the presence of his children and that he had not provided necessities for the child.Moreover, the child has resided with the grandmother for three years, since he was four monthsold. The child and his grandmother have a close relationship and the child is bonded to hishalf-sister, who also resides with the grandmother. The grandmother and her husband livetogether in a nice home where each child has his or her own bedroom and they are able tofinancially provide for the subject child. There was testimony that the subject child is thriving inthe grandmother's care and both the mother and the father's mother testified that placement withthe grandmother was in the child's best interests. Thus, we find that there is ample evidence inthe record to support Family Court's determination that extraordinary circumstances existed andthat it was in the child's best interests to be placed in the custody of the grandmother (see Matter of Bohigian v Johnson, 48AD3d 904, 906 [2008]).[FN*]
We similarly find that Family Court's award of unsupervised visitation to the mother has asound basis in the record and therefore decline to disturb it (see Matter of Custer v Slater, 2 AD3d 1227, 1228 [2003]).
We have considered the father's remaining contentions and find them to be without merit.[*3]
Cardona, P.J., Peters, Rose and Kavanagh, JJ., concur.Ordered that the orders are affirmed, without costs.
Footnote *: We note that, while FamilyCourt, in the course of the custody hearing, allowed the father to fully pursue his theory that theproceedings against him were tainted by a conflict of interest or bias premised upon the fact thatthe grandmother was employed by DSS as a senior caseworker, he failed to elicit proofestablishing that any special treatment was solicited by or afforded to her as a result of thatemployment.