| Matter of Hezekiah L. v Pamela A.L. |
| 2012 NY Slip Op 01111 [92 AD3d 506] |
| February 14, 2012 |
| Appellate Division, First Department |
| In the Matter of Hezekiah L., Respondent, v Pamela A.L.,Appellant. |
—[*1]
Elisa Barnes, New York, for respondent. Karen P. Simmons, The Children's Law Center, Brooklyn (Karin Wolfe of counsel), attorneyfor the child.
Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about January4, 2011, which awarded permanent custody of the subject child to petitioner, unanimouslyaffirmed, without costs. Appeal from order, same court and Judge, entered on or about November30, 2010, which vacated an order of guardianship to respondent, and granted petitioner temporarycustody of the child, unanimously dismissed, without costs, as nonappealable, and, in any event,as subsumed in the appeal from the January 4, 2011 order.
In this child custody matter, respondent, the child's paternal aunt, was adjudicated the child'sguardian on consent of the parents and had custody of the child for approximately three yearsprior to petitioner father filing a petition to vacate the order of guardianship and seeking custodyof the child. In opposing the petition, respondent failed to establish extraordinary circumstancesthat "drastically affect" the child's welfare, sufficient to deny petitioner, the biological father,custody of his child (see Matter of Bennett v Jeffreys, 40 NY2d 543, 544, 549 [1976]).Although the child lived with respondent for six years, the father maintained contact with thechild except when prevented from doing so by respondent, visited the child on a regular basis andprovided material support for the child.
Respondent's contention, raised for the first time on appeal, that she was prejudiced by theFamily Court's refusal to consider the opinion of the forensic evaluator in connection with theextraordinary circumstances determination is not preserved for appellate review. We note,however, that the court properly exercised its discretion in this regard since the report is relevantonly to the best interests determination, which the court never reached since respondent did notestablish extraordinary circumstances (Matter of Dickson v Lascaris, 53 NY2d 204, 208[1981]; Matter of Bennett, 40 NY2d at 548). In any event, the report is unreliable sincerespondent concealed from the evaluator repeated incidents of domestic violence in her home.
The court properly exercised its discretion in denying respondent's request to adjourn the[*2]hearing upon her failure to appear in person, since theproceedings were already protracted, respondent failed to appear on previous occasions despitecourt orders, and she had the opportunity to present evidence on the subsequent days of thehearing. Concur—Mazzarelli, J.P., Saxe, Moskowitz, Freedman and Manzanet-Daniels, JJ.