| Matter of Melody J. v Clinton County Dept. of Social Servs. |
| 2010 NY Slip Op 03197 [72 AD3d 1359] |
| April 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Melody J. et al., Respondents, v Clinton CountyDepartment of Social Services, Respondent, and Melissa I., Appellant, et al.,Respondent. |
—[*1] Jessica C. Eggleston, Saratoga Springs, for Melody J. and another, respondents. Christine G. Peters, Clinton County Department of Social Services, Plattsburgh, for ClintonCounty Department of Social Services, respondent. Claire Sullivan, Law Guardian, Monticello.
Peters, J.P. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered November 19, 2008, as amended by an order entered November 28, 2008, which grantedpetitioners' application, in a proceeding pursuant to Family Ct Act article 6, for custody of thesubject child.
Respondents Melissa I. (hereinafter the mother) and Daniel C. are the parents of Ethan C.(born in 2004), who is the subject of this proceeding. The mother also has a daughter (born in2008) who was born during the pendency of this proceeding out of her current relationship withher boyfriend. The mother, who is mildly mentally retarded, suffered a series of small strokes[*2]shortly after Ethan's birth which led to her hospitalization,during which time Ethan was cared for by family members. Thereafter, the mother and Ethanhad various living arrangements, including residing with the mother's boyfriend at an apartmentand later a camp-like facility, staying with her cousin, moving in with one of her sisters andliving at temporary housing in local motels. During the time that the mother was residing withher sister, the sister filed for custody, and a court-ordered investigation was commenced bySusan Dewey, a Child Protective Services caseworker, into the complaints and cross-complaintsfiled by the mother and her sister.
On May 25, 2007, Child Protective Services received a report that the mother was observedintoxicated, while Ethan was present, at the hotel in which she was staying. Dewey responded tothe call and, following the incident, Ethan was removed from the mother's care and placed in thetemporary custody of petitioners, his maternal aunt and uncle. Thereafter, respondent ClintonCounty Department of Social Services commenced a neglect proceeding against the mother, themother consented to a finding of neglect and Ethan continued in the custody of petitioners.
In January 2008, after a permanency hearing, Family Court established a permanency planwith a goal of permanent placement with petitioners and ordered that, if petitioners failed to filea custody petition by February 2008, the Department should file an application pursuant toFamily Ct Act § 1017 for an order of custody in favor of petitioners. Petitioners ultimatelycommenced this proceeding for permanent custody of Ethan and a fact-finding hearing was held.In a lengthy and detailed decision and order, Family Court concluded that extraordinarycircumstances existed and that it was in the best interests of Ethan to award custody topetitioners, subject to weekly visitation with the mother. The mother appeals and we affirm.
Initially, the mother asserts that Family Court improperly determined the permanency plangoal to be placement with petitioners and improperly ordered petitioners to file a custodypetition. However, inasmuch as the mother failed to appeal from the permanency hearing orderwhich set forth these directives (see Family Ct Act § 1113), her arguments in thatregard are not properly before us.
Turning to Family Court's decision awarding petitioners custody, it is fundamental that abiological parent has a right to custody of his or her child superior to that of a nonparent in theabsence of "surrender, abandonment, persisting neglect, unfitness or other like extraordinarycircumstances" (Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; see Matter of Loukopoulos vLoukopoulos, 68 AD3d 1470, 1471 [2009]; Matter of Cumber v O'Leary, 56 AD3d 1067, 1069 [2008]). Theburden of proving such extraordinary circumstances rests with the nonparent seeking custody (see Matter of Mercado v Mercado, 64AD3d 951, 952 [2009]) and, if established, the controlling consideration in determiningcustody is the best interests of the child (see Matter of Bennett v Jeffreys, 40 NY2d at548; Matter of Magana v Santos, 70AD3d 1208, 1209 [2010]; Matterof Vann v Herson, 2 AD3d 910, 912 [2003]). As Family Court is in the best position toevaluate the testimony, character, sincerity and ultimate credibility of the witnesses, its factualfindings are accorded great deference and will not be disturbed unless they lack a sound andsubstantial basis in the record (seeMatter of Carton v Grimm, 51 AD3d 1111, 1112 [2008], lv denied 10 NY3d716 [2008]; Matter of McDevitt vStimpson, 1 AD3d 811, 812 [2003], lv denied 1 NY3d 509 [2004]; see also Matter of Fishburne vTeelucksingh, 34 AD3d 804, 805 [2006]).
Here, the record supports Family Court's conclusion that extraordinary circumstances existin that the mother is unfit to provide full-time care for Ethan, who has been diagnosed with [*3]developmental delays and behavioral disorders. Prior to Ethan'sremoval from her custody, the mother admittedly used marihuana several times a week, wasunable to maintain a stable residence for any significant period of time and used inappropriatecaregivers. Further, even before his removal, the mother had never been a full-time parent toEthan, having surrendered him to the care of her sisters for at least three to four days each week.The evidence further revealed that the mother has an IQ of 62 and suffers from severalpsychiatric diagnoses, including attention deficit hyperactivity disorder and posttraumatic stressdisorder, which contribute to her poor parental judgment and inability to focus her attention toadequately and safely supervise her children. To that end, Dewey testified that she receivedreports of the mother's ongoing lack of supervision of Ethan prior to his removal. Moreover,visitations between the mother and Ethan, which were originally held for six hours at petitioners'home, were subsequently split into two three-hour periods because the mother felt that six hourswas "too long," was unable to focus her attention on Ethan during the entirety of the visits andoften terminated the visits early. Various witnesses, including petitioner Melody J., detailednumerous instances demonstrating the mother's difficulty in keeping Ethan and his sister safeand her lack of follow through with basic parenting skills.
Testimony revealed that, although the mother has taken significant steps to address herlimitations and cognitive difficulties, including the completion of parenting classes, she is a veryconcrete thinker with a limited fund of general information. Consequently, her ability to abstractand react spontaneously to new situations is severely impaired and raises serious concernsregarding her ability to care for and address the particular needs of Ethan, who was described asa "stormy toddler" who is more difficult to control than the average child his age, needsconsistency and stability, has been observed to injure himself and suffers from early signs ofattention deficit hyperactivity and sleeping disorders.
Anissa Noto, a mental health evaluator who observed the mother and her children on anumber of occasions and performed a parenting assessment, found that the mother experiencessignificant stress in parenting her children, is very easily distracted and has difficulty in gettingEthan to follow directions. She noted that Ethan is a difficult child who needs constantsupervision and consistency and that, although the mother did not demonstrate any significantdifficulty in caring for her newborn daughter, who remained in her custody, the prognosis tosuccessfully parent both children at the same time was poor. Noto concluded that the mother'slack of focus, poor judgment, cognitive limitations and mental disorders rendered her unable tosafely parent Ethan. Giving due deference to Family Court's factual findings and credibilitydeterminations, we find ample support in the record for its determination that the cumulativeeffect of the mother's cognitive limitations, mental illness and flawed parentaljudgment—and the impact they have on the child—constitute extraordinarycircumstances (see Matter of Loukopoulos v Loukopoulos, 68 AD3d at 1472; Matterof Gambino v Vargas, 209 AD2d 893, 893-894 [1994]; see also Matter of Tompkins vSterling, 267 AD2d 315, 315 [1999]; compare Matter of Cole v Goodrich, 272AD2d 792, 793 [2000], lv denied 95 NY2d 874 [2000]).
We reach a similar conclusion with regard to Family Court's best interest determination(see Matter of Bennett v Jeffreys, 40 NY2d at 544). Based upon the totality of thecircumstances, including the evidence relating to the past performance of petitioners and themother, their respective abilities to provide for Ethan's emotional, physical and educationalwell-being, petitioners' willingness to foster a relationship between Ethan and his mother, andthe need to maintain stability in the young child's life, we find no basis to disturb Family Court'sdecision to continue custody of Ethan with petitioners (see Matter of Loukopoulos vLoukopoulos, 68 AD3d at 1472-1473; Matter of Scala v Parker, 304 AD2d 858, 860[2003]). The mother's remaining [*4]contentions, to the extentnot specifically addressed herein, have been reviewed and found lacking in merit.
Spain, Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.