| Matter of Carpenter v Puglese |
| 2012 NY Slip Op 03248 [94 AD3d 1367] |
| April 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Edward A. Carpenter Jr., Appellant, v Robert P.Puglese et al., Respondents. (Proceeding No. 1.) In the Matter of Robert P. Puglese et al.,Respondents, v Edward A. Carpenter, Appellant, and Brandy M. Sharp, Respondent.(Proceeding No. 2.) (And Another Related Proceeding.) |
—[*1] David G. Goldbas, Utica, for Robert P. Puglese and another, respondents. Felt Evans, L.L.P., Clinton (Jay G. Williams III of counsel), for Brandy M. Sharp,respondent. Peter E. Smith, Wampsville, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Madison County (McDermott, J.),entered April 29, 2011, which, among other things, granted petitioners' application, in proceedingNo. 2 pursuant to Family Ct Act article 6, for custody of the subject children.
Edward A. Carpenter Jr. (hereinafter the father) and Brandy M. Sharp (hereinafter themother) are the unmarried biological parents of fraternal twin boys.[FN1]Approximately five weeks after the boys' birth in February 2008, a caseworker from the localsocial services agency made an unannounced visit to the parents' home and discovered that theboys were living in what she described as deplorable, unsanitary and unsafe conditions.Specifically, the parents' residence was littered with garbage, animal feces and the remnants of acat's afterbirth, had several broken windows and lacked a working stove, toilet and heatingsystem. At the time of the caseworker's visit, the boys were at the home of the mother's uncle,Robert P. Puglese, and his girlfriend, Melissa S. Switzer. Following discussions with thecaseworker, Puglese and Switzer agreed to allow the mother and the boys to stay with them.Although the mother returned to live with the father shortly thereafter, the boys have remainedwith Puglese and Switzer to this day.
Following a series of petitions in Family Court, all of which were dismissed for variousreasons, the father commenced the first of these proceedings in April 2010 seeking custody of theboys and naming the mother and Puglese as respondents. Puglese and Switzer then commenced aseparate custody proceeding against the mother and the father in August 2010, which wasfollowed by the mother's petition for custody in October 2010. Following a hearing, FamilyCourt awarded custody of the boys to Puglese and Switzer with supervised visitation to themother and the father. This appeal by the father ensued.[FN2]
We affirm. To be sure, "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 custody over an extended period of time or other extraordinarycircumstances" (Matter of Gray v Chambers, 222 AD2d 753, 753 [1995], lvdenied 87 NY2d 811 [1996]; accordMatter of James NN. v Cortland County Dept. of Social Servs., 90 AD3d 1096, 1097[2011]; Matter of Tennant v Philpot,77 AD3d 1086, 1087 [2010]). In this regard, "[e]vidence that the parent has failed either tomaintain substantial, repeated and continuous [*2]contact with achild or to plan for the child's future has been found to constitute persistent neglect sufficient torise to the level of an extraordinary circumstance" (Matter of Ferguson v Skelly, 80 AD3d 903, 905 [2011], lvdenied 16 NY3d 710 [2011]; accordMatter of Wayman v Ramos, 88 AD3d 1237, 1239 [2011], lv dismissed 18NY3d 868 [2012]; see Matter of ArleneY. v Warren County Dept. of Social Servs., 76 AD3d 720, 721 [2010], lv denied15 NY3d 713 [2010]). Upon reviewing the record, we are satisfied that Puglese and Switzer mettheir heavy burden (see Matter ofGolden v Golden, 91 AD3d 1042, 1043 [2012]; Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d1359, 1360 [2010], lv denied 15 NY3d 703 [2010]) of demonstrating the requisiteextraordinary circumstances here.
By his own admission, the father only saw the boys for brief periods of time (15 to 30minutes each) on three occasions shortly after they went to live with Puglese and Switzer in April2008 and subsequently did not see them again until August 2008. The father attempted to see theboys once in 2009 but, upon finding no one at home, "never went back . . . there forawhile." Indeed, the father did not see the boys at all during 2009 and, as of the time of thehearing, had seen them twice since being granted supervised visitation in December 2010.
In addition to his lack of contact with the boys, the record reflects that the father's sole planfor the boys' future was to get to know them better and then obtain custody "maybe a year, yearand a half down the road." At the time of the hearing, the father was working seven hours a weekas a seasonal farm hand and residing in his girlfriend's home. Additionally, the father did not owna car, possessed only a restricted driver's license—apparently as the result of his failure topay child support for one or more of his remaining children—and, with the exception ofhis last two visits with the boys, never provided them with gifts or otherwise contributed to theirsupport. Thus, notwithstanding the father's attempt to gain custody of the boys in 2008, there isample evidence to support Family Court's finding that he persistently neglected the boys (seee.g. Matter of Golden v Golden, 91 AD3d at 1044; Matter of McDevitt v Stimpson, 1 AD3d 811, 812-813 [2003],lv denied 1 NY3d 509 [2004]).
We reach a similar conclusion as to Family Court's finding that the father was an unfit parent.In addition to the foregoing, the father's decision to permit his newborn twins to reside in aresidence with several broken windows, "snow coming in underneath the front door and so forth"and no working stove, toilet or heating system, coupled with the parents' history of domesticviolence,[FN3]evidences a lack of judgment sufficient to rise to the level of parental unfitness.
Finally, upon considering the totality of the circumstances (see Matter of Tennant vPhilpot, 77 AD3d at 1089), including the parents' respective housing and employmentsituations, we are persuaded that it is in the boys' best interests to award custody to Puglese andSwitzer, who have been caring for them since shortly after their birth. The father's remainingcontentions, including his assertion that Family Court abused its sound discretion in awardinghim only supervised visitation, have been examined and found to be lacking in merit.[*3]
Mercure, J.P., Spain, Stein and Garry, JJ., concur.Ordered that the order is affirmed, without costs.
Footnote 1: The father also has four olderchildren from four prior relationships; none of those children resides with him. By his ownadmission, one of those prior relationships—in addition to producing achild—resulted in his conviction of a felony sex offense and his subsequent classificationas a risk level one sex offender. The mother also has an older child from anotherrelationship—who does not reside with her—and, as of January 2011, was pregnantwith her fourth child.
Footnote 2: Although the mother filed abrief on appeal seeking reversal of Family Court's order, she did not file a notice of appeal.Hence, we will confine our analysis to the merits of the father's appeal.
Footnote 3: The mother admitted that shewas bipolar, and the father testified that she was prone to fits of violence. On one occasion, themother purportedly came at the father with a butcher knife, prompting him to "literally punch[ ]her in the head and knock[ ] her out" in order to protect himself.