| Matter of Ortiz v Winig |
| 2011 NY Slip Op 02498 [82 AD3d 1520] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of William Ortiz, Appellant, v Beth Winig,Respondent, et al., Respondent. |
—[*1] Cliff Gordon, Monticello, for Beth Winig, respondent. Kenneth Esrick, Chatham, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.), enteredDecember 7, 2009, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for custody of the subject child.
Petitioner (hereinafter the father) and respondent Amie Winig (hereinafter the mother) arethe parents of a child (born in 2006). In March 2008, Family Court appointed respondent BethWinig, the child's maternal grandmother (hereinafter the grandmother), as guardian of the childon consent of both parents. In May 2009, the father commenced this proceeding seekingtermination of the guardianship and custody of the child. The grandmother moved to dismiss thepetition or, in the alternative, for summary judgment. The father cross-moved to have FamilyCourt deny the grandmother's motion and to grant him summary judgment and award himcustody of the child. Family Court denied both motions and, after conducting a hearing, [*2]dismissed the petition and amended petition[FN1]and continued the grandmother's guardianship of the child. Family Court also directed theattorney for the child to submit an order directing the Commissioner of Social Services toinvestigate whether the father is capable of visiting with the child by reason of his diagnosis ofbipolar disorder and directed that the Commissioner make arrangements for the father to beevaluated in order to determine whether he has a mental illness or drug addiction requiringsupervision. The court further directed that the father's visitation be supervised by theCommissioner until completion of the investigation, and the court being satisfied that the fatheris capable of visitation without harming the child. The father now appeals.
The father first contends that the grandmother failed to allege extraordinary circumstancessufficient to warrant an inquiry into whether the continuation of her guardianship was in the bestinterests of the child. We disagree. It is well established that "a biological parent has a right tocustody of his or her child superior to that of a nonparent in the absence of . . .'unfitness or other like extraordinary circumstances' " (Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d1359, 1360 [2010], lv denied 15 NY3d 703 [2010], quoting Matter of Bennett vJeffreys, 40 NY2d 543, 544 [1976]). Here, in her affidavit in support of her motion, thegrandmother alleged that the father was not fit to care for the child based upon, among otherthings, his living situation, his criminal background, including a history of domestic violencetoward the mother, his financial circumstances and his lack of "the emotional and intellectual[means] to provide a safe and appropriate environment for [the child's] growth." Based upon theallegations contained in that affidavit, together with the fact that the child had resided with thegrandmother since birth, Family Court properly determined that the grandmother had made aprima facie showing of the father's unfitness or other extraordinary circumstances and had raisedissues of fact sufficient to warrant denial of the father's cross motion (see CPLR 3212 [b];Zuckerman v City of New York, 49 NY2d 557, 560 [1980]; Friends of Animals vAssociated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Matter of La Bier v La Bier, 291AD2d 730, 732-733 [2002], lv dismissed 98 NY2d 671 [2002]).
We likewise find that Family Court's continuation of the grandmother's guardianship of thechild is supported by a sound and substantial basis in the record. The father, himself, testifiedthat he has been unemployed for over a year, has extremely limited financial resources and livesin a motel room with only one bed, a bathroom, a microwave and refrigerator, and he concededthat his current financial and housing situation were unstable. He further testified that he has acriminal history and a history of drug use. Significantly, the father also testified that he had beendiagnosed as bipolar, but that he was not currently receiving any drug or mental health treatment,despite acknowledging that he has substantial memory problems and anger issues due to thatdisorder. A caseworker for the Columbia County Department of Social Services testifiedregarding a recent incident in which the father became so angry that he had to be escorted out ofthe building in which her office was located. In addition, the father's testimony demonstrated hislack of knowledge regarding the child's general medical and dental condition or certain basicsafety requirements pertaining to the child. Finally, we note that the mother agrees that thegrandmother's circumstances are significantly more stable than the father's, and she consented tothe grandmother's continued guardianship of the child. We conclude that this evidence provides asound and substantial basis to support Family Court's finding of extraordinary circumstances,[*3]and the determination that it was in the child's best interest toremain in the grandmother's custody (see Matter of Tennant v Philpot, 77 AD3d 1086, 1088-1089[2010]; Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d at1360-1362).[FN2]
Nor are we persuaded by the father's contention that, once his petition was dismissed, FamilyCourt was without jurisdiction to order mental health and substance abuse evaluations and tolimit his visitation pending the results thereof. In seeking custody of the child, the father placedhis mental health and overall parental fitness at issue (see Moor v Moor, 75 AD3d 675, 678 [2010]; Matter ofCaccavale v Brown, 271 AD2d 717, 718-719 [2000]). Furthermore, the issue of visitationwas addressed throughout the proceedings (see generally Matter of Myers v Markey, 74 AD3d 1344, 1345[2010]), and Family Court had the opportunity to hear the testimony of the witnesses and,significantly, to observe the father's demeanor. Indeed, Family Court specifically commented thatthe father's courtroom demeanor raised questions as to his fitness to exercise unsupervisedvisitation with the child. Family Court's direction that the Commissioner arrange for the father tobe evaluated and that his visitation be supervised in the meantime is akin to an order directing aninvestigation pursuant to Family Ct Act § 1034 and/or an order of protection pursuant toFamily Ct Act §§ 655 or 656, although not specifically designated as such. Underthe circumstances here, and given Family Court's paramount concern with the best interest of thechild (see generally Moor v Moor, 75 AD3d at 676; Matter of Caccavale vBrown, 271 AD2d at 718), we cannot conclude that this direction was wholly improper. Wealso note that the court conditioned only unsupervised visitation, not all access to the child, onthe satisfactory completion of the evaluations (see Posporelis v Posporelis, 41 AD3d 986, 991-992 [2007]).Nonetheless, the order lacks certain necessary provisions including, but not limited to, theduration of its terms (see e.g. Family Ct Act § 656), a time for the completion ofthe evaluations and a direction that the Commissioner report back to the court (see e.g.Family Ct Act § 1034 [1], [2] [g]). Thus, the matter must be remitted to Family Court.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as directed that petitioner'svisitation with the child be supervised and that he undergo mental health and drug useevaluations without setting forth a time frame within which to conduct the evaluations andwithout directing the Commissioner of Social Services to report back to Family Court; matterremitted to the Family Court of Columbia County for further proceedings not inconsistent withthis Court's decision, and, pending said proceedings, which shall be held as soon as practicable,the present order shall remain in full force and effect; and, as so modified, affirmed.
Footnote 1: The father's initial pro sepetition was followed by an amended petition, which was apparently prepared by counsel.
Footnote 2: While Family Court did notarticulate its best interest determination, it is clear from our review of the record that it so found(see generally Matter of Titus v Guzzey, 244 AD2d 684, 685 n [1997], appealdismissed 91 NY2d 921 [1998], cert denied 523 US 1139 [1998]).