New York Supreme and/or Appellate Courts Appellate Division, First Department
February 14, 2012
IN RE HEZEKIAH L., PETITIONER-RESPONDENT,
PAMELA A.L., RESPONDENT-APPELLANT.
Matter of Matter of Hezekiah L. v Pamela A.L.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about January 4, 2011, which awarded permanent custody of the subject child to petitioner, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about November 30, 2010, which vacated an order of guardianship to respondent, and granted petitioner temporary custody of the child, unanimously dismissed, without costs, as non-appealable, 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's guardian on consent of the parents and had custody of the child for approximately three years prior to petitioner father filing a petition to vacate the order of guardianship and seeking custody of the child. In opposing the petition, respondent failed to establish extraordinary circumstances that "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 ). Although the child lived with respondent for six years, the father maintained contact with the child except when prevented from doing so by respondent, visited the child on a regular basis and provided material support for the child.
Respondent's contention, raised for the first time on appeal, that she was prejudiced by the Family Court's refusal to consider the opinion of the forensic evaluator in connection with the extraordinary 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 relevant only to the best interests determination, which the court never reached since respondent did not establish extraordinary circumstances (Dickson v Lascaris, 53 NY2d 204, 208 ; Matter of Bennett, 40 NY2d at 548). In any event, the report is unreliable since respondent 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 hearing upon her failure to appear in person, since the proceedings were already protracted, respondent failed to appear on previous occasions despite court orders, and she had the opportunity to present evidence on the subsequent days of the hearing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 14, 2012
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