| Matter of James NN. v Cortland County Dept. of Social Servs. |
| 2011 NY Slip Op 08694 [90 AD3d 1096] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of James NN., Appellant, v Cortland CountyDepartment of Social Services, Respondent. |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland, forrespondent. Mark A. Schaeber, Liverpool, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered July 7, 2010, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for custody of the subject child.
Petitioner (hereinafter the father) is the biological father of Sierra C. (born in June2007),[FN1]and respondent is the local social services agency into whose care and custody the child has beenentrusted. The child was born while the father was in prison serving a sentence upon hisconviction of attempted robbery in the third degree, and she spent the first three months of herlife in a neonatal intensive care unit suffering from severe drug withdrawal. Following the child'sdischarge from the hospital, she was returned to her mother's care. Shortly thereafter, in October2007, the mother tested positive for drug use, and the child was placed in foster care where shehas remained—except for a brief period of time when she resided with her maternal [*2]grandmother.
The father was released from prison in June 2008 and, beginning in August or September ofthat year, participated in limited supervised visitations with the child. In January 2009, however,the father returned to prison on a parole violation after he, among other things, tested positive forcocaine. Following his release in May 2009, the father again was afforded limited supervisedvisitation with the child. In the interim, respondent commenced a permanent neglect proceedingseeking to terminate the mother's parental rights based upon, among other things, her chronicdrug use. Although the father was not named as a party to that proceeding, he nonethelessappeared and was represented by counsel. Family Court terminated the mother's parental rights inOctober 2009 and, upon appeal, we affirmed (Matter of Sierra C. [Deborah D.], 74 AD3d 1445 [2010]).
The father thereafter commenced this Family Ct Act article 6 proceeding seeking custody ofthe child. Following a hearing, Family Court dismissed the father's application, finding thatextraordinary circumstances warranted divesting the father of custody. This appeal by the fatherensued.
We affirm. "[A] biological parent has a claim of custody of his or her child, superior to thatof all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruptionof custody over an extended period of time or other extraordinary circumstances" (Matter ofGray v Chambers, 222 AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]; accord Matter of Ferguson v Skelly, 80AD3d 903, 904 [2011], lv denied 16 NY3d 710 [2011]; Matter of Ramos v Ramos, 75 AD3d1008, 1009 [2010]). Factors to be considered in ascertaining whether extraordinarycircumstances may be said to 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 Tennant v Philpot, 77 AD3d 1086, 1087 [2010]; see Matter of Bohigian v Johnson, 48AD3d 904, 905 [2008]). To that end, although a court cannot divest a biological parent ofcustody simply because it believes that someone else could do a better job (see Matter ofStark v Kinnaw, 212 AD2d 943, 944 [1995]), the biological parent may be supplanted wherehe or she engages in "gross misconduct or other behavior evincing an utter indifference andirresponsibility" relative to the parental role (Matter of Gray v Chambers, 222 AD2d at754) or where "grievous cause or necessity" warrants intervention (Matter of Jodoin v Billings, 44 AD3d1244, 1245 [2007] [internal quotation marks and citation omitted]).
Initially, we have no quarrel with Family Court's finding that the father's credibility wascompletely undermined by what the court aptly characterized as his inconsistent and oftenincredible testimony,[FN2]as well as his stated willingness to "play the system" in order to get what he needed. As to thefinding of extraordinary circumstances, although it appears that the father regularly exercised hislimited visitation rights, he nonetheless was absent from his daughter for [*3]approximately 18 of the first 24 months of herlife—prolonged separation occasioned by his entirely voluntary decision to commit acrime and thereafter violate the terms of his parole. More to the point, the record makes clear thatthe father made no effort—prior to the termination of the mother's parentalrights—to seek custody or, while he was incarcerated, to offer any member of his extendedfamily as a potential custodial resource for the child. Inasmuch as the father effectively abdicated(and made no effort to resume) his parental responsibilities and essentially acquiesced to thechild's placement with respondent, we cannot say that Family Court erred with respect to itsfinding of extraordinary circumstances in this regard (cf. Matter of Bohigian v Johnson,48 AD3d at 905; Matter of Bevins v Witherbee, 20 AD3d at 719-720).
The record also contains ample support for Family Court's alternative finding ofextraordinary circumstances—namely, that the father is unfit to parent his child. Thefather, by his own admission, has a history of polysubstance abuse dating back some 25years—a history marked by recurring relapses and a demonstrated inability to separatehimself from people or situations that are a threat to his sobriety. Additionally, the fatherconceded that he twice attempted suicide and that, until recently, his mental health issues hadgone largely unaddressed. Further, it is apparent from the father's testimony that he accepts littleresponsibility for his conduct, preferring instead to blame his lot in life on the ex-wives whomanipulated him, the law enforcement or parole officials who lied about him and the system thatfailed him. Arguably most disturbing, however, is the father's unwillingness or inability to severties with the child's mother—despite his acknowledgment that theirs is a toxic relationship,that she is a threat to his continued sobriety and that she is to have no contact with thechild.[FN3]In light of the foregoing, and giving due consideration to the father's prior criminal history, gangassociations and untreated anger management issues, we find sufficient extraordinarycircumstances to divest him of custody (see Matter of Tennant v Philpot, 77 AD3d at1088-1089; Matter of VanDee vBean, 66 AD3d 1253, 1255 [2009]; Matter of Dellolio v Tracy, 35 AD3d 737, 738 [2006]).
Finally, the record overwhelmingly supports Family Court's finding that the child's bestinterests would be served by remaining in respondent's custody. By all accounts, the child hasthrived in the home of her foster parents—the only real home the child has everknown—and there is no question that the foster parents have the resources and skill set tomeet the child's needs. In contrast, the father has no demonstrated track record in terms ofhousing, employment or parenting skills. Accordingly, we discern no basis upon which to disturbFamily Court's sound and well-reasoned determination. The father's remaining arguments, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: Paternity was established at thebehest of respondent and upon the father's default.
Footnote 2: For example, the father refusedto acknowledge that the child had been born suffering from severe drug withdrawal, believinginstead that the child's doctors had mismanaged her care and manufactured the addiction scenarioto "cover their butts."
Footnote 3: Following a visit with the fatherin April 2010—six months after the mother's parental rights had been terminated and longafter the father knew that neither he nor the child were to have any contact with her—thechild revealed to her foster mother that she had spoken with her biological mother on the father'sphone.