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In re Cheryl YY.

Supreme Court of New York, Third Department

July 6, 2017

In the Matter of CHERYL YY., Respondent,
v.
CYNTHIA YY., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of CYNTHIA YY., Appellant,
v.
CHERYL YY., Respondent, et al., Respondent. (Proceeding No. 2.)

          Calendar Date: June 8, 2017

          Alice R. Sutton, Elmira, for appellant.

          Larisa Obolensky, Delhi, for respondent.

          Michael P. Graven, Owego, attorney for the children.

          Before: Garry, J.P., Egan Jr., Lynch, Mulvey and Aarons, JJ.

          MEMORANDUM AND ORDER

          Mulvey, J.

         Appeal from an order of the Family Court of Tioga County (Keene, J.), entered August 14, 2015, which, among other things, granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, to modify a prior order of custody.

         Cynthia YY. (hereinafter the mother) and respondent Dale B. (hereinafter the father) are the unwed parents of two daughters (born in 2000 and 2002). The mother and the father separated after living together for approximately three years. In 2007, the mother and Cheryl YY. (hereinafter the stepmother) began a relationship and were subsequently married. In 2012, joint custody of the daughters was granted to the mother and the stepmother. The mother and the stepmother's relationship ended with the stepmother moving out of the marital home. In March 2014, the stepmother commenced proceeding No. 1 to modify the 2012 custody order to grant her temporary custody of the daughters pending a hearing. In response, the mother commenced proceeding No. 2 to modify the custody order to grant her sole legal custody. Family Court continued joint custody and temporarily granted the stepmother primary physical custody of the daughters with parenting time to the mother. Following a hearing conducted over several days and Lincoln hearings with each daughter, Family Court granted the stepmother sole legal and physical custody of the daughters and granted the mother parenting time. The mother appeals.

         "'It is well settled that a parent has a claim of custody of his or her child that is superior to that of all others, absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances'" (Matter of Peters v Dugan, 141 A.D.3d 751, 752 [2016], quoting Matter of Sweeney v Sweeney, 127 A.D.3d 1259, 1260 [2015]; see Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 546 [1976]). "'A finding of extraordinary circumstances is rare, and the circumstances must be such that they drastically affect the welfare of the child'" (Matter of Thompson v Bray, 148 A.D.3d 1364, 1365 [2017], quoting Matter of Ramos v Ramos, 75 A.D.3d 1008, 1010 [2010]). "The burden of proof to make a threshold showing of extraordinary circumstances rests upon the nonparent, and only when that burden has been satisfied may the court turn to a custody analysis premised upon consideration of the child's best interests" (Matter of Jennifer BB. v Megan CC., 150 A.D.3d 1340, 1341 [2017] [citations omitted]; see Matter of Donna SS. v Amy TT., 149 A.D.3d 1211, 1212-1213 [2017]).

         Family Court heard testimony from over 20 witnesses, including the stepmother and the mother. The testimony painted a relatively unflattering picture of the mother as temperamental and quick to anger, and whose preferred method of communication was by confrontation, intimidation, screaming and yelling. Family Court found credible testimony that the mother meted out verbal and emotional abuse with little or no regard as to the consequences of her behavior on the daughters. In January 2014, Heather Stanton, a Child Protective Services investigator, indicated the mother for injuries to the younger daughter and also indicated both the mother and the stepmother for improperly involving the daughters in their disputes. A preventive case was opened with goals for both the mother and the stepmother. Stanton testified that, in her investigation, she determined that the daughters were fearful of getting hit and screamed at by the mother and that the stepmother often protected the daughters during the mother's outbursts. Stanton attempted to counsel the mother about her behavior toward the daughters, but the mother was unwilling to change and expressed no remorse for her actions. Stanton testified that the mother stated, "If [the daughters] don't change then, nothing will change" and that the mother also stated to Stanton, "Since I can't punish them how I want to punish them, because of you, I will use mental." In another meeting with the stepmother, Stanton recommended that, if the stepmother was going to leave the mother, she take the daughters with her.

         Erin Shattuck, a caseworker, testified that the preventive case was terminated positively as far as the stepmother was concerned, as the goal of not involving the daughters in adult discussions was achieved. She also testified that the case was closed negatively and unresolved as to the mother, since the mother had failed to address agreed-upon goals and the mother denied the existence of any issues with respect to the daughters. Shattuck testified that it appeared that the daughters were "upbeat and happy" when they were with the stepmother. Jeremy Phytila, a Child Protective Services investigator, testified about his investigation into a February 2014 domestic violence incident. During his investigation, the stepmother reported that the mother had given the daughters an ultimatum to choose which parent they were going to live with. He testified that after meeting with the daughters, both of them admitted to "being sort of scared of mom, but less scared, because [the stepmother] was there." Phytila found the stepmother to be the more active parent, and he was concerned about the mother's mental, psychological and emotional abuse of the daughters. He indicated the mother for her involvement of the daughters in adult conversations and their fear of the mother.

         Family Court also found credible the testimony of the daughters' therapists. The younger daughter's therapist testified how she counseled the daughter on techniques to help the daughter cope with the mother's outbursts, yelling and arguments during parenting time. The older daughter's therapist testified that this daughter did not feel comfortable visiting the mother because of frequent arguments and that, although the daughter had engaged in self-harm when living with the mother, such behavior had ceased since living with the stepmother. Her testimony also revealed that the daughter's overall mental health had improved since she was not living with her mother. The therapist testified that overnight parenting time with the mother would not be beneficial for the daughter's well-being.

         Both parties also offered testimony by family members and friends, with credible testimony by Kayla C., the mother's daughter from a prior relationship. Her testimony confirmed that the mother was an emotional, abusive and distant person who was quick tempered. She testified to frequent screaming by the mother and to a statement made by the mother to the daughters that she wished they were never born. She also testified that the daughters were much happier now that they were living with the stepmother. Raymond YY., the stepmother's father, testified about an incident when the mother had arrived at his home to take the younger daughter for parenting time. The daughter became very upset, was crying and did not want to leave with the mother for overnight parenting time. Kimberly YY., the stepmother's sister, testified about an incident during a phone conservation in which the mother yelled that the daughters were traitors, which caused them to become very upset and to cry. The mother presented several witnesses whose testimony generally related to the period prior to the mother and the stepmother's marriage and who testified that they had never observed any problems between the mother and the daughters.

         Family Court found the stepmother's testimony to be credible. She testified that the mother screamed and yelled at her or the daughters almost every day. She testified to an incident when the mother threw a phone at the father and the domestic violence incidents in January and February 2014. The father, who was called as a witness for the stepmother, testified that the mother would frequently berate him in front of the daughters and that she had thrown things at him in the kitchen, resulting in damage to the walls and to the refrigerator door. Family Court did not find the mother's testimony to be credible when she claimed that the stepmother had undermined her authority, caused the daughters to disrespect her and that the daughters were liars. Instead, the mother's testimony confirmed many of the incidents testified to by other witnesses. The court also found the mother's demeanor to be confrontational and argumentative and did not accept her contentions that the social services caseworkers lied about statements attributed to her or that ...


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