Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Marcia ZZ.

Supreme Court of New York, Third Department

June 15, 2017

In the Matter of MARCIA ZZ., Respondent,
v.
APRIL A., Appellant, and ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent.

          Calendar Date: May 1, 2017

          Betty J. Potenza, Highland, for appellant.

          Jacob Vredenburgh, Wynantskill, for Marcia ZZ., respondent.

          Daniel Gartenstein, Ulster County Department of Social Services, Kingston, for Ulster County Department of Social Services, respondent.

          Lawrence R. Shelton, Kingston, attorney for the children.

          Before: McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.

          MEMORANDUM AND ORDER

          Rose, J.

         Appeal from an order of the Family Court of Ulster County (McGinty, J.), entered December 28, 2015, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject children.

         Respondent April A. (hereinafter the mother) is the mother of a son (born in 2009) and a daughter (born in 2010). The children's father is deceased. In March 2011, respondent Ulster County Department of Social Services (hereinafter DSS) commenced a neglect proceeding against the mother alleging that she was abusing drugs and that she had engaged in several instances of domestic violence in the presence of the children. As a result, the children were removed from the mother's care and, in March 2011, placed in the care of petitioner, the children's paternal cousin. The children were found to be neglected and, as part of the dispositional order, Family Court continued the children's placement with petitioner and ordered the mother to engage in a variety of services, including an alcohol/drug abuse rehabilitation program. After the mother struggled to complete the required services, petitioner commenced this proceeding seeking sole legal and physical custody of the children. A lengthy fact-finding hearing ensued, during the course of which hundreds of pages of petitioner's treatment records and DSS's case file were admitted into evidence. Following a meticulous review of the testimony and the voluminous records in evidence, Family Court found that extraordinary circumstances existed and that the best interests of the children would be served by awarding petitioner sole legal and physical custody, with alternate weekend visitation to the mother. Family Court also provided that any holiday visitations were solely at the discretion of petitioner. The mother now appeals.

         We are unpersuaded by the mother's argument that there were no extraordinary circumstances presented that would allow Family Court to award custody to petitioner and that, even if there were, Family Court's custody determination was contrary to the best interests of the children. It is well settled that "[a] parent has a claim of custody to his or her child[ren] that is superior to all other persons, unless a nonparent establishes that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or 'other like extraordinary circumstances'" (Matter of Donna SS. v Amy TT., 149 A.D.3d 1211, 1212 [2017], quoting Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 544 [1976]; see Matter of Thompson v Bray, 148 A.D.3d 1364, 1365 [2017]). "The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" (Matter of Peters v Dugan, 141 A.D.3d 751, 753 [2016] [internal quotation marks and citations omitted]; see Matter of Thompson v Bray, 148 A.D.3d at 1365; Matter of Brown v Comer, 136 A.D.3d 1173, 1174 [2016]). "The burden of proving extraordinary circumstances lies with the nonparent" (Matter of Renee TT. v Britney UU., 133 A.D.3d 1101, 1103 [2015]; see Matter of Evelyn EE. v Ayesha FF., 143 A.D.3d 1120, 1124 [2016], lv denied 28 N.Y.3d 913 [2017]) and, once this showing is made, "Family Court may then proceed to the issue of whether an award of custody to the nonparent, rather than the parent, is in the child[ren]'s best interests" (Matter of Donna SS. v Amy TT., 149 A.D.3d at 1212-1213; see Matter of Suarez v Williams, 26 N.Y.3d 440, 447 [2015]). Notably, "[n]o continuing preference for the parent over the nonparent is part of the [best interests] analysis" (Matter of Rumpff v Schorpp, 133 A.D.3d 1109, 1111 [2015]).

         In addition to the proof concerning the mother's active engagement in instances of domestic violence in the presence of the children resulting in the adjudication of neglect, the treatment records detail her long-standing substance abuse and mental health problems and her inability to successfully treat those issues. Although she relies heavily on the fact that she completed a substance abuse treatment program, our review of her treatment records fully confirms Family Court's finding that the mother's discharge from that program was more akin to a determination by the staff to phase her out of the program, rather than a judgment that she had successfully addressed her substance abuse issues. In this regard, the treatment records demonstrate that the mother had significant attendance and behavior issues, was resistant to treatment, lacked insight into the factors that trigger her to relapse - leading her to relapse while she was in treatment - and possessed an inability to reliably report her sobriety to her treatment providers. In addition, although the mother has been diagnosed with serious mental health issues, including bipolar disorder, she has, at numerous points, unilaterally ceased taking her psychiatrically prescribed medication. Notably, one month prior to the commencement of this proceeding, one of the mother's mental health providers noted that the mother continued to struggle with "emotional dysregulation."

         The treatment records and DSS's case file further support Family Court's assessment that the mother obsessively fixates on her belief that petitioner or petitioner's family members are inflicting harm on the children, despite the fact that Child Protective Services has repeatedly determined these claims to be unfounded. Specifically, during the mother's visitation time, she regularly inspects the children's bodies for the presence of marks, persistently questions them about whether they are being harmed by petitioner and photographs any marks, no matter how small, that she finds. Family Court found that the mother's obsessive focus on the children's physical condition and refusal to accept that petitioner or petitioner's family members are not abusing the children reflects "a distinct deficiency of reasonable parental judgment."

         Next, we reject the mother's assertion that Family Court abused its discretion in considering DSS's case file inasmuch as she did not object to the admission of the file before Family Court (see Matter of Thomas FF. v Jennifer GG., 143 A.D.3d 1207, 1208 [2016]; Matter of Bevins v Witherbee, 20 A.D.3d 718, 720 [2005]). Rather, the mother offered the case file into evidence and, importantly, the limited portion of the case file relied upon by Family Court was clearly admissible (see generally Matter of Leon RR, 48 N.Y.2d 117, 123 [1979]). In view of the foregoing proof, and after according due deference to Family Court's factual findings and credibility determinations (see Matter of Peters v Dugan, 141 A.D.3d at 753; Matter of Elizabeth SS. v Gracealee SS., 135 A.D.3d 995, 997 [2016]), we are satisfied that there is a sound and substantial basis in the record to support Family Court's finding of extraordinary circumstances (see Matter of Evelyn EE. v Ayesha FF., 143 A.D.3d at 1125; compare Matter of Thompson v Bray, 148 A.D.3d at 1366).

         As to the best interests analysis, the record lends support for Family Court's findings that the children share a "strong bond" with petitioner and that petitioner is more able to provide stability and consistency for the children, as well as facilitate their emotional and intellectual development. In addition, a large extended family, including the children's half siblings, live next door to petitioner, providing petitioner and the children with a large network of familial support. Thus, after reviewing the foregoing proof and considering the relevant factors (see Matter of Rumpff v Schorpp, 133 A.D.3d at 1111), we find ample support in the record for Family Court's determination that the best interests of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.