| Matter of Ferguson v Skelly |
| 2011 NY Slip Op 00116 [80 AD3d 903] |
| January 13, 2011 |
| Appellate Division, Third Department |
| In the Matter of Robert S. Ferguson, Respondent, v Jeffrey MichaelSkelly et al., Appellants, et al., Respondent. |
—[*1] John A. Cirando, Syracuse, for Heather J. Skelly-Ferguson, appellant. Robert S. Ferguson, Flagstaff, Arizona, respondent pro se. Verner M. Ingram Jr., Potsdam, Attorney for the Children.
Egan Jr., J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered August 6, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent Heather J. Skelly-Ferguson (hereinafter themother) are the divorced parents of two sons (born in 2003 and 2004). The father and mother metin 2001 in Arizona and, thereafter, both regularly abused methamphetamine and other drugs. Themother and father attempted to stop using drugs after the mother became pregnant with their firstchild. After the first child was born, the mother, the father, the mother's daughter from a previousrelationship, and the child moved to the City of Ogdensberg, St. Lawrence County to live withrespondent Jeffrey Michael Skelly—the children's maternal grandfather—duringwhich time the parents, although occasionally drinking alcohol, [*2]remained drug free. After the mother became pregnant with thesecond child, the family left the grandfather's home and eventually moved to Phoenix, Arizona.Within a month of the birth of the parties' second child, the mother and father both resumed theirdrug abuse. The mother and father separated, and the father and the children returned toOgdensburg in June 2005 and lived, back and forth, between the grandfather's home and thehome of the grandfather's girlfriend. Although the mother and father reunited at some point andreturned to New York, this reunification was short lived, and, in May 2007, the father asked thegrandfather to take care of the children while he "got [his] life together" in Arizona. In June2007, the grandfather filed a proceeding seeking custody of the children. In November 2007, anorder was entered whereby the father and grandfather stipulated that extraordinary circumstancesexisted which warranted a grant of custody of the children to the grandfather with certainvisitation to the father to be agreed upon.[FN*]In August 2008, the father commenced the instant modification proceeding seeking sole custodyof his children. After a hearing, Family Court granted the father's petition, and the mother andgrandfather now appeal.
"[A] biological parent has a claim of custody of his or her child, superior to that of all others,in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custodyover an extended period of time or other extraordinary circumstances" (Matter of Gray vChambers, 222 AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]; accord Matter of Arlene Y. v WarrenCounty Dept. of Social Servs., 76 AD3d 720, 721 [2010], lv denied 15 NY3d713 [2010]). A prolonged separation of the parent from a child " 'for at least [24] continuousmonths during which the parent voluntarily relinquished care and control of the child and thechild resided in the household of [a] grandparent' " has been held to constitute such a disruptionof custody (Matter of Gale v Gray,39 AD3d 903, 904 [2007], quoting Domestic Relations Law § 72 [2] [b]; seeMatter of Arlene Y. v Warren County Dept. of Social Servs., 76 AD3d at 721). However, a"period of separation during which a parent is trying to regain custody lawfully is entitled tolittle, if any, consideration" (Matter of Gale v Gray, 39 AD3d at 904-905 [internalquotation marks and citations omitted]). Evidence that the parent has failed either to maintainsubstantial, repeated and continuous contact with a child or to plan for the child's future has beenfound to constitute persistent neglect sufficient to rise to the level of an extraordinarycircumstance (see Matter of Arlene Y. v Warren County Dept. of Social Servs., 76 AD3dat 721). Other factors to be considered 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 Lori MM. v Amanda NN., 75AD3d 774, 775 [2010] [internal quotation marks and citations omitted]; accord Matter of Turner v Maiden, 70AD3d 1214, 1215 [2010]). The nonparent bears the heavy burden of establishing thethreshold extraordinary circumstances, and the "existence of a prior consent order of custody infavor of the nonparent is not sufficient to demonstrate extraordinary circumstances" (Matter of Ramos v Ramos, 75 AD3d1008, 1010 [2010] [internal quotation marks and citations omitted]; see Matter of Moorev St. Onge, 307 AD2d 421, 422 [2003]; Matter of Canabush v Wancewicz, 193AD2d 260, 263 [1993]).
Here, according the appropriate deference to Family Court's factual findings and credibilitydeterminations (see Matter of Melody J.v Clinton County Dept. of Social Servs., 72 AD3d 1359, 1360 [2010], lv denied15 NY3d 703 [2010]; Matter of Bronsonv Bronson, 63 AD3d 1205, 1206 [2009]), we find a sound and substantial basis in therecord for its [*3]determination that extraordinary circumstancesdid not exist such that the grandfather should retain custody of the children. Prior to May 2007,the children lived between homes and between states while both the mother and the father abuseddrugs and alcohol, only experiencing limited time periods of sobriety. It was the father's priordrug and alcohol abuse that was the catalyst for his stipulating to the 2007 finding ofextraordinary circumstances. In July 2007, shortly after the father moved back to Arizona, he wasconvicted of driving while under the influence of alcohol. Albeit in conjunction with hisconviction, the father completed substance abuse classes in 2008. That same year, he alsocompleted anger management, parenting classes and underwent counseling. Apart from thealcohol-related conviction, the father has been drug-free since May 2007 and has beenconsistently employed since July 2007 in a distribution center in Arizona. In May 2008, heobtained a second job in a restaurant. The father has continuously attempted to maintain contactwith the children and, at one point, filed a petition for custody that was later withdrawn based on,what Family Court deemed, the father's credible testimony that the grandfather threatened torefuse summer visitation. The record reflects that, despite his shortcomings, the father currentlylives with his current wife and her two children in a stable home and is leading a healthy,drug-free life. As the threshold of extraordinary circumstances has not been established, we neednot address what custodial arrangement is in the children's best interests (see Matter of Scalav Parker, 304 AD2d 858, 859 [2003]).
Next, because the mother clearly testified at this hearing regarding the previous courtproceedings, her placement in foster care as a child and the allegations of having been abused byher own father, we are unpersuaded that Family Court improperly relied on facts outside therecord with respect to this testimony. We also find no error in Family Court's subsequentquestioning on these issues, which simply clarified the mother's testimony (see Matter ofStanziano v Stanziano, 235 AD2d 845, 846 [1997]). We are likewise unpersuaded by themother's claims that the attorney for the children provided ineffective assistance of counsel. Thisrecord discloses that the attorney for the children participated in the hearing and cross-examinedmultiple witnesses to ascertain, among other things, the parties' custodial capabilities and theextent of their drug and alcohol abuse, such that the children were provided with effectiverepresentation (see Matter of Dana A. vMartin B., 72 AD3d 1136, 1138 [2010]; Matter of Chamberlain v Chamberlain,260 AD2d 671, 672 [1999], lv denied 93 NY2d 811 [1999]).
Finally, as the grandfather never made an application for visitation with the children, we findthat Family Court did not err in failing to grant him visitation (see Matter of Shelia B. v Shirelle JasmineB., 67 AD3d 610, 610 [2009]; Matter of Moorhead v Coss, 17 AD3d 725, 726 [2005]).
Mercure, J.P., Peters, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother defaulted in thisproceeding.