| Matter of Thurston v Skellington |
| 2011 NY Slip Op 08408 [89 AD3d 1520] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Sharon Thurston, Respondent, v Keith C.Skellington, Jr., Respondent, and Oswego County Department of Social Services,Appellant. |
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Appeal from an order of the Family Court, Oswego County (Kimberly M. Seager, J.), enteredAugust 4, 2010 in a proceeding pursuant to Family Court Act article 6. The order, insofar as appealedfrom, awarded petitioner sole legal and physical custody of the subject child.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the lawwithout costs, the petition is denied, and the matter is remitted to Family Court, Oswego County, forfurther proceedings in accordance with the following memorandum: Respondent Oswego CountyDepartment of Social Services (DSS) appeals from an order that, inter alia, granted the maternalgrandmother's petition seeking sole legal and physical custody of the minor child. We note at the outsetthat the only issue raised by DSS concerns the propriety of the order with respect to custody, and thuswe deem abandoned any other issues concerning the order that may have been raised by DSS (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]).
We agree with DSS that Family Court's determination with respect to custody lacks a sound andsubstantial basis in the record (see Matter ofBryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]). While there is no question that thegrandmother loves the child and wishes to care for him, those facts alone are insufficient to warrant adetermination that the child's best interests will be served by an award of custody to the grandmother,particularly in light of the substantial and largely unrefuted evidence of DSS and the Attorney for theChild that the grandmother, while perhaps able to meet minimal standards of fitness, lacks the capacityto provide for the child's emotional and intellectual development (see Matter of Matthew E. v Erie County Dept. of Social Servs., 41 AD3d1240, 1242 [2007]; see generally Matter of Louise E.S. v W. Stephen S., 64 NY2d 946[1985]; Eschbach v Eschbach, 56 NY2d 167, 172-173 [1982]). The record reflects that thegrandmother has a lengthy history of indicated child protective services reports spanning from 1979until 2008, which involve allegations of, inter alia, medical neglect, failure to maintain a clean home,inadequate provision of food, and failure to ensure that her children attend school. Indeed, all four ofthe grandmother's children were removed from her care for significant periods of time during theirchildhoods. Further, the record establishes that the grandmother is unemployed and is entirely reliantupon governmental financial assistance, suffers from various health problems, is unable to drive, and hasa limited education. Those circumstances are [*2]particularlyproblematic given the substantial evidence that the child has been diagnosed with multiple behavioraland learning disabilities including, inter alia, attention deficit hyperactivity disorder, disruptive disorder,and reactive attachment disorder. At the custody hearing, the child's foster mother testified that herequires "constant one-on-one attention," and his first-grade teacher likewise testified that the childneeded structure and consistency and required more attention than the average child. Two DSScaseworkers, a clinical psychologist who evaluated the grandmother and the child, and a psychiatricsocial worker all expressed concern that the grandmother would be unable to handle the child's specialneeds, particularly as he became older. Importantly, the child's foster mother, his principal, his socialworker, and the DSS witnesses all testified that the child's behavior deteriorated upon increasedvisitation with the grandmother.
We thus conclude that, "while continued placement in foster care is not ideal, it is not in the bestinterests of the[ ] child[ ] to have custody awarded to [the grandmother]" (Matter of Susan FF. v Maryann FF., 11AD3d 757, 758 [2004]). We therefore reverse the order insofar as appealed from and deny thegrandmother's petition. In view of the fact that the order on appeal also concerns visitation with thefather and other issues that were not addressed on appeal, we therefore deem it appropriate in view ofour determination to afford Family Court the opportunity to address any such issues that are affected byour determination. We therefore remit the matter to Family Court for that purpose.Present—Peradotto, J.P., Carni, Lindley, Sconiers and Green, JJ.