| Matter of Deborah E.C. v Shawn K. |
| 2009 NY Slip Op 04838 [63 AD3d 1724] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Deborah E.C., Appellant, v Shawn K., Appellant,and Genesee County Department of Social Services, Respondent. (Appeal No.1.) |
—[*1] Michael Steinberg, Rochester, for respondent-appellant. John L. Rizzo, County Attorney, Leroy (Colleen S. Head of counsel), forrespondent-respondent. Jacqueline M. Grasso, Law Guardian, Batavia, for Seth K.
Appeals from an order of the Family Court, Genesee County (Eric R. Adams, J.), enteredDecember 17, 2007 in a proceeding pursuant to Family Court Act article 6. The order denied thepetition for custody.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent father and his wife, petitioner stepmother, appealfrom an order denying the Family Court Act article 6 petition of the stepmother seeking custodyof the father's son and, in appeal No. 2, they appeal from an order denying the stepmother's"modification petition" under Family Court Act article 10, also seeking custody of the father'sson. In appeal No. 3, the father appeals from a subsequent order terminating his parental rightswith respect to his son. The father and his son's biological mother were the subjects of a FamilyCourt Act article 10 neglect petition, and the biological mother's parental rights previously wereterminated. The father is presently incarcerated until at least 2013. Although his son had for aperiod of time been placed with a family friend, he was transferred to foster care in June 2006when the family friend could no longer care for him. In January 2007, the stepmother and thefather married, and the stepmother filed the petitions for custody at issue in appeal Nos. 1 and 2.Family Court held one hearing on both petitions and, in thereafter denying the petitions, thecourt determined that the stepmother should not be awarded custody because she had "emotionalissues" and "an extended history of relationships with male figures marked by both domesticviolence and substance abuse."[*2]
In appeal Nos. 1 and 2, the father and the stepmothercontend, inter alia, that the court used improper standards of review. We reject that contention.With respect to the article 6 petition, even assuming, arguendo, that the stepmother was requiredto establish the existence of extraordinary circumstances, we conclude that she did so (see Matter of Vann v Herson, 2 AD3d910, 911-912 [2003]; see generally Matter of Bennett v Jeffreys, 40 NY2d 543, 548[1976]). Thus, the focus with respect to the article 6 petition became the best interests of thechild (see Bennett, 40 NY2d at 548; Matter of Autumn B., 299 AD2d 758, 759[2002]). With respect to the article 10 "modification petition" seeking custody, we likewiseconclude that the focus was the best interests of the child. Under the provisions of article 10 asthey existed at the time of the hearing, the stepmother was required to establish that she was a"suitable person" with whom the child could reside (see Family Ct Act § 1017 [2][a] [former (i), (ii)]; § 1055 [former (a) (i)]; Matter of Seth Z., 45 AD3d 1208, 1210 [2007]). That analysisincorporates a best interests standard of review (see Matter of Harriet U. v Sullivan CountyDept. of Social Servs., 224 AD2d 910, 911 [1996]). Under the provisions of article 10, as ithas been amended (see L 2008, ch 519), there is now an explicit "best interests" standardof review for such petitions (see § 1055-b [a] [ii]; Matter of Gabriel James Mc., 60 AD3d1066 [2009]).
It is well established that a trial court's determination of a child's best interests "must beaccorded the greatest respect" (Eschbach v Eschbach, 56 NY2d 167, 173 [1982] [internalquotation marks omitted]), and will not be disturbed if " 'it has a sound and substantial basis inthe record' " (Matter of Westfall vWestfall, 28 AD3d 1229, 1230 [2006], lv denied 7 NY3d 706 [2006]). Here,"[a]lthough there is little doubt that the child has psychologically bonded with [the stepmother]to some degree, ' [t]he degree of bonding is simply one factor among the totality of thecircumstances [to be] considered by Family Court' " (Matter of Esposito v Shannon, 32 AD3d 471, 473 [2006]). On therecord before us, we see no basis to disturb the determination of the trial court that custody withthe stepmother is not in the child's best interests. Contrary to the contention of the father andstepmother, the court properly considered the father's incarceration and the potential that thefather may relapse into a life of crime or substance abuse (see generally Matter of Marie Annette M., 23 AD3d 167, 169[2005]; Matter of Van Orman v VanOrman, 19 AD3d 1167, 1168 [2005]; Matter of Bishop v Livingston, 296 AD2d602, 604 [2002]).
Contrary to the father's contention in appeal No. 3, once the court determined that custodywith the stepmother was not a "realistic and feasible plan" (Social Services Law § 384-b[7] [c]), the father was required to make other arrangements for the long-term care of his son inorder to avoid a finding of permanent neglect, and he failed to do so. Rather, his only viable planfor his son was long-term foster care. "[A]n incarcerated parent may not satisfy the planningrequirement of the statute where the only plan offered is long-term foster care" (Matter ofGregory B., 74 NY2d 77, 90 [1989]; see Matter of "Female" V., 21 AD3d 1118, 1119 [2005], lvdenied 6 NY3d 708 [2006]; Matterof Shawn O., 19 AD3d 238 [2005]; cf. Matter of Latasha F., 251 AD2d 1005[1998]). Thus, the court properly terminated the father's parental rights upon finding that thefather had permanently neglected his son.
Finally, we conclude that the father received meaningful representation (see generally Matter of John KK., 34AD3d 1050, 1051 [2006]; Matter of Nicholas GG., 285 AD2d 678, 679-680 [2001]).Present—Centra, J.P., Peradotto, Green, Pine and Gorski, JJ.