| Matter of Tennant v Philpot |
| 2010 NY Slip Op 07433 [77 AD3d 1086] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Renee Tennant, Respondent, v William Philpot etal., Respondents, and Tonya Philpot, Appellant. (And Three Other RelatedProceedings.) |
—[*1] Pamela B. Bleiwas, Ithaca, for Renee Tennant, respondent. Christopher A. Pogson, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.),entered May 1, 2009, which granted petitioner's application, in four proceedings pursuant toFamily Ct Act article 6, for custody of the subject child.
Respondent Tonya Philpot (hereinafter the mother) is the mother of a daughter, born in 2007.Approximately three weeks after the child's birth, respondent William Philpot, the child'smaternal grandfather (hereinafter the grandfather), took custody of the child. Approximately oneweek later, he placed the child in petitioner's care full time, where she has remained to thepresent. Petitioner has known both the mother and the grandfather for several years, first as ateacher's aide working with the mother and then as a family friend. Initially, the mother did notobject to the child living with petitioner and visited the child at petitioner's home. As tensiongrew between petitioner and the mother, however, visits were moved to the grandfather's home[*2]and reduced to weekends only.
Petitioner commenced the first of the instant proceedings seeking custody of the child. Themother opposed the petition and filed her own petition seeking custody of the child. Thegrandfather supported petitioner's application and, as an alternative, sought custody for himself ina cross petition.[FN*]Family Court conducted a fact-finding hearing over the course of two days. Following thehearing, Family Court found the existence of extraordinary circumstances allowing placement ofthe child with a nonparent and it therefore awarded custody to petitioner, with supervisedvisitation to the mother. The mother now appeals.
" '[A] biological parent has a claim of custody of his or her child, superior to that of allothers, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption ofcustody over an extended period of time or other extraordinary circumtances' " (Matter of Lori MM. v Amanda NN., 75AD3d 774, 775 [2010], quoting Matter of Gray v Chambers, 222 AD2d 753, 753[1995], lv denied 87 NY2d 811 [1996]). Factors to be considered in determining whetherextraordinary circumstances exist include "the length of time the child has lived with thenonparent, the quality of that relationship and the length of time the biological parent allowedsuch custody to continue without trying to assume the primary parental role" (Matter of Bevins v Witherbee, 20AD3d 718, 719 [2005]; accordMatter of Cumber v O'Leary, 56 AD3d 1067, 1070 [2008]). The cumulative effects of amother's "cognitive limitations, mental illness and flawed parental judgment" that impact thechild have been held to satisfy this threshold requirement (Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d1359, 1362 [2010], lv denied 15 NY3d 703 [2010]; compare Matter of Cole vGoodrich, 272 AD2d 792, 793 [2000], lv denied 95 NY2d 874 [2000]). "Onceextraordinary circumstances have been established, the controlling consideration in determiningcustody is the best interest of the child" (Matter of Bennor v Hewson, 47 AD3d 1136, 1137 [2008] [citationsomitted], lv denied 10 NY3d 710 [2008]).
Here, in according Family Court the appropriate deference (see Matter of Bronson v Bronson, 63AD3d 1205, 1206 [2009]), we find a sound and substantial basis for its determination thatsuch extraordinary circumstances were demonstrated and that it was in the child's best interests toremain with petitioner (see Matter ofTurner v Maiden, 70 AD3d 1214, 1216-1217 [2010]). The testimony revealed that themother has a history of substance and alcohol abuse. When the child was approximately threeweeks old, the mother and the child were involved in a motor vehicle accident whereby the carended up in a ditch. The mother refused the recommendation of the responding emergencymedical technician that the child be taken to the hospital and examined. The record also revealsthe mother's extensive history of mental health issues. It was based on the mother's anger issuesand threats of suicide that the grandfather, with the mother's consent, took physical custody of thechild shortly after her birth. A court-ordered psychological evaluation of the mother, conductedin January 2008, revealed incidents of her hearing voices, engaging in self-injuring behavior,alcoholism and incidents whereby she was the victim of domestic violence. The mother wasdiagnosed with bipolar and personality disorders and was considered emotionally andbehaviorally unstable and incapable of [*3]caring for an infantwithout supervision. The record also reflects that the mother, until recently, has taken advantageof only a fraction of her visitation time. During some visits, the mother was loud and disruptive,and exhibited violent and abusive behavior and, on other occasions, the mother did not evenacknowledge the child during visitation. During one visit, the mother referred to the child byusing a racial slur. The mother admitted that after the child began living with petitioner, she hasabused alcohol, was the victim of domestic violence and was also convicted of a misdemeanorfor possessing stolen property.
While we acknowledge her recent attempts to obtain the appropriate treatment for herself, therecord reveals that the mother's psychiatric conditions and anger issues remain largelyunresolved. She has exhibited poor judgment by engaging in criminal conduct, failing tocomplete many recommended services, and remaining in abusive relationships. These issues,among others, have contributed to her inability to adequately care for the child. As such, we findFamily Court's determination of extraordinary circumstances to be supported by substantialevidence (see Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d at1361). To the extent that the mother presented her own testimony that she was discouraged fromparticipating in the child's life, together with the testimony of certain acquaintances who, on ahandful of occasions, have each observed and commented on the mother's appropriateinteractions with the child and other children, Family Court's discretion in resolving thosecredibility issues will not be disturbed.
Likewise, the record finds a sound and substantial basis for Family Court's determination thatthe child's best interest is served by remaining with petitioner. Of note is that the child suffersfrom certain medical conditions, and is developmentally delayed in all areas of development,including physical, social-emotional, cognitive, communication and activities of daily living.Petitioner has limited her work schedule as an emergency medical technician and has activelyparticipated in the child's extensive early intervention and follow-up services. Although the childis still delayed, the record reveals that she has benefitted from such services and now has theability to sit up, roll over and reach for items she desires. In light of the totality of thecircumstances, including the parties' past performance, relative fitness and their abilities tomaintain a stable home and provide for the child's special needs (id. at 1362), we find nobasis to disturb Family Court's determination to grant custody to petitioner.
Mercure, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: The child's biological father,who has not had any involvement in the child's life, also opposed the petition and filed a crosspetition for custody. He failed to appear at the fact-finding hearing so his application wasdismissed.