Calendar Date: October 20, 2017
G. Monahan, Schenectady, for appellant.
Pesserilo, Cortland, for respondent.
A. Sarat, Preble, attorney for the child.
Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker,
MEMORANDUM AND ORDER
from an order of the Family Court of Cortland County
(Campbell, J.), entered July 20, 2016, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order
of custody and visitation.
(hereinafter the mother) is the mother of three children
(born in 2002, 2010 and 2011). Respondent Arvin B.
(hereinafter the father) is the biological father of the
younger two children. After the three children were
adjudicated to be neglected by the mother and the father,
they were placed in the custody of respondent Susan A.
(hereinafter the grandmother) by order on consent and after a
finding of extraordinary circumstances was made based upon
the mother's and the father's drug use and
incarceration. After multiple petitions were filed, including
an application by the mother to modify custody, a
fact-finding hearing and a Lincoln hearing were
held, after which Family Court determined that it was in the
best interests of the children to award custody to the
mother. The grandmother now appeals.
party petitioning to modify a custody order bears the burden
of demonstrating first, that there has been a change in
circumstances since the prior order and, then, if such a
change occurred, that the best interests of the child[ren]
would be served by a modification of that order'"
(Matter of Smith v McMiller, 149 A.D.3d 1186, 1187
, quoting Matter of Thomas FF. v Jennifer GG.,
143 A.D.3d 1207, 1208 ; see Matter of Jessica AA. v
Thomas BB., 151 A.D.3d 1231, 1231-1232 ). A parent
is required to prove a change in circumstances to regain
custody from a nonparent where, as here, there was a previous
finding of extraordinary circumstances (see Matter of
Dumond v Ingraham, 129 A.D.3d 1131, 1132-1133 ).
Inasmuch as Family Court is in a superior position to assess
witness credibility, its factual findings are to be accorded
great deference and its decision will not be disturbed if
supported by a sound and substantial basis in the record
(see Matter of Southammavong v Sisen, 141 A.D.3d
905, 906 ; Matter of Gentile v Warner, 140
A.D.3d 1481, 1482 ).
the mother established that there was a change in
circumstances as the mother no longer uses drugs, is no
longer incarcerated, has a steady, full-time job and has been
taking care of the children both as a caregiver and financial
provider. Additionally, Family Court found that "the
deterioration in the relationship between [the grandmother
and the mother] also constitutes a change in circumstances
that impacts the children." As the mother met her burden
in demonstrating a change in circumstances since entry of the
prior order, the court properly went on to a best interests
analysis (see Matter of Smith v McMiller, 149 A.D.3d
at 1187). The record establishes that there is a question as
to the quality of care provided by the grandmother and that
the mother would be able to provide for the children's
financial, emotional and intellectual development, all
pertinent factors to be considered by the court when
undertaking a best interests analysis (see Matter of
Heather U. v Janice V., 152 A.D.3d 836, 839 ;
Matter of Peters v Dugan, 141 A.D.3d 751, 753-754
). Testimony established that the grandmother has
overlooked and denied the use of alcohol in the home, that
household conditions have deteriorated, including food
shortages, dog feces and urine odor in the house, a volatile
relationship with one of the children and that, when the
grandmother and mother disagree, the grandmother cuts off or
limits the mother's contact with the children on a whim,
contact which the children look forward to. Testimony also
established that the mother has remained drug free, is
currently working full time, has been saving money to provide
a suitable residence for the children and has proven capable
of caring for the children. Based upon the totality of the
circumstances, we find that Family Court's determination
to award custody to the mother is supported by a sound and
substantial basis in the record (see Matter of William
EE. v Christy FF., 151 A.D.3d 1196, 1198-1199 ;
Matter of Menhennett v Bixby, 132 A.D.3d 1177, 1179
to the grandmother's assertion, Family Court properly
ruled that the attorney for the children did not have a
disqualifying conflict of interest. It is not disputed that
the attorney for the children represented the mother in the
past for a criminal matter related to drug charges that
resulted in her incarceration. Due to this, the grandmother
asserts that the attorney for the children's
representation is a conflict of interest under Rules of
Professional Conduct (22 NYCRR 1200.0) rules 1.7 and 1.9.
Initially, the grandmother's assertion regarding a
conflict of interest pursuant to rule 1.7 is not preserved
for appellate review because the grandmother did not move to
disqualify the attorney for the children on this ground
(see Albany Eng'g Corp. v Hudson River/Black Riv.
Regulating Dist., 110 A.D.3d 1220, 1222-1223 ). As
to the alleged conflict pursuant to rule 1.9, the
grandmother's assertion lacks merit as the matters are
not substantially similar, nor were the interests of the
children materially adverse to those of the attorney for the
children's former client, the mother (see Rule
of Professional Conduct [22 NYCRR 1200.0] rule 1.9 Comment
 [rev 2017]). We also do not find merit to the
grandmother's further assertion that the attorney for the
children did not provide the effective assistance of counsel,
as it is clear from the record that he zealously advocated
for his clients' position (see Matter of Gloria DD.
[Brenda DD.], 99 A.D.3d 1044, 1046 ).
the grandmother's contention that Family Court abused its
discretion by refusing to order the mother to undergo a
substance abuse evaluation and declining to draw a negative
inference from the mother's failure to take such
evaluation, the record is clear that the court did order, at
the request of the grandmother, that the mother undergo a
substance abuse evaluation. Also, as the record makes clear
that the failure of the mother to undergo the evaluation was
not due to the mother, but rather, confusion as to who would
pay for the evaluation, this contention is without merit.
McCarthy, J.P., Lynch, Devine ...