Matter of Debra SS. v. Brian TT.Matter of Debra SS. v. Brian TT.
In the Matter of DEBRA SS., Respondent, v BRIAN TT., Appellant, et al., Respondent. (Proceeding No. 1.)
In the Matter of DEBRA SS., Respondent, v BRIAN TT., Appellant. (Proceeding No. 2.)
Calendar Date: June 7, 2018
Before: Garry, P.J., McCarthy, Lynch, Devine and Mulvey, JJ.
Lisa A. Natoli, Norwich, for appellant.
Pamela B. Bleiwas, Ithaca, for respondent.
Martha A. Lyons, Binghamton, attorney for the child.
MEMORANDUM AND ORDER
Lynch, J.
Appeals (1) from an order of the Family Court of Broome County (Young, J.), entered April 11, 2017, which granted petitioner‘s application, in proceeding No. 2 pursuant to
Respondent Brian TT. (hereinafter the father) and respondent Nicole UU. (hereinafter the mother) are the unmarried parents of one child (born in 2008). Pursuant to a 2014 Family
On June 30, 2016, the father and the grandmother engaged in a heated verbal exchange concerning the father having a female overnight guest, which escalated to a physical altercation between the father and the stepgrandfather. On July 6, 2016, the grandmother commenced two proceedings, one pursuant to
“A parent has a claim of custody to his or her child 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 AD3d 1211, 1212 [2017], quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; see Matter of Heather U. v Janice V., 152 AD3d 836, 837 [2017]). “The nonparent bears the burden of demonstrating the existence of such extraordinary circumstances, which may include proof that the parent has neglected to maintain substantial, repeated and
In 2009, the mother dropped off the child at the grandmother‘s residence after deciding to move to Georgia. At that time, the father was living at the grandmother‘s house. Since then, the child has resided at the grandmother‘s house, attending the same school from pre-kindergarten to the third grade. The father has, for brief periods of time, leased apartments, but has otherwise lived in the grandmother‘s house with the child. When the child was with the father at his apartment, he would drive the child back to the grandmother‘s house in the evening so that she could go to school the following day. When asked what he would do if Family Court returned the child to him, the father replied that he did not intend to “rip[] her” out of the grandmother‘s house and stated that he would “wean her” off of living with the grandmother over a period of time.
The record reflects that the father, at best, has an unstable work history, failing to maintain consistent employment from 2009 to 2016. In 2014, the father began accepting sporadic contract work that required him to be out of town for approximately seven weeks at a time, during which time the child would stay with the grandmother. When asked what arrangements he would make for the child the next time that he left town for work, the father responded that he would not need to accept such an offer because he had been approved for unemployment insurance benefits. Furthermore, with respect to motor vehicle payments that he had been making to the grandmother and the stepgrandfather since 2013, the father indicated that it was his plan to pay the vehicle off entirely so that he could accept a lower paying job.
The record also reflects that, in 2002, the father was diagnosed with bipolar disorder and attention deficit hyperactivity disorder. By his own admission, the father does not take prescription medication to treat these mental health issues,
We agree with Family Court that the grandmother met her burden of establishing extraordinary circumstances. The child has resided in the grandmother‘s household since 2009 and the grandmother has assumed the role of primary caregiver since that time. The father has maintained a good and consistent relationship with the child, but has failed to provide a stable home for the child or himself or to otherwise viably plan for her future. His failure to properly address his mental health concerns, which he concedes has contributed to his lack of employment, raises great uncertainty as to having him assume primary custody. Giving due deference to Family Court‘s factual findings and credibility determinations (see Matter of Curless v McLarney, 125 AD3d 1193, 1197 [2015]; Matter of Arlene Y. v Warren County Dept. of Social Servs., 76 AD3d 720, 721-722 [2010], lv denied 15 NY3d 713 [2010]), we find that Family Court‘s finding of extraordinary circumstances is supported by a sound and substantial basis in the record (see Matter of Marcia ZZ. v April A., 151 AD3d at 1304; Matter of Sweeney v Sweeney, 127 AD3d at 1261; Matter of Ettari v Peart, 110 AD3d 1256, 1257 [2013]; compare Matter of Burton v Barrett, 104 AD3d at 1085-1086).
As for the best interests analysis, notwithstanding Family Court‘s failure to expressly address best interests, we may review the record and make our own independent determination (see Scott Q. v Joy R., 151 AD3d 1206, 1207 [2017], lv denied 29 NY3d 919 [2017]). Following a finding of extraordinary circumstances, “[n]o continuing preference for the parent over the nonparent is part of the analysis; instead, factors to be taken into account include the parties’ respective abilities to provide stable homes for the child[ ], their relationships with
It is clear that both the father and the grandmother have a good, loving relationship with the child. However, as indicated above, the father has not maintained a stable residence for either himself or the child or properly addressed his mental health issues, nor has he demonstrated that he is able to maintain employment. Since 2009, the child‘s primary residence has been at the grandmother‘s house, the child attends school from the grandmother‘s house and the grandmother has provided much needed stability in the child‘s life. Furthermore, the grandmother has demonstrated a strong willingness to foster a positive relationship between the child and both the mother and the father. In addition, although not determinative, we note that Family Court‘s custody determination is consistent with the position of the attorney for the child (see Matter of Marcus CC. v Erica BB., 107 AD3d 1243, 1247 [2013], appeal dismissed 22 NY3d 911 [2013]). In light of the foregoing, we conclude that Family Court‘s custody determination is supported by a sound and substantial basis in the record (see Matter of Durgala v Batrony, 154 AD3d 1115, 1118 [2017]; Matter of Heather U. v Janice V., 152 AD3d at 839-840).
Finally, we agree with Family Court that the grandmother satisfied her burden of proof on her family offense petition. As the party seeking an order of protection, the grandmother bore the burden of establishing by a preponderance of the evidence that the father committed one of certain enumerated offenses. The determination of “whether a family offense has been committed is a factual issue to be resolved by Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal” (Matter of Shana SS. v Jeremy TT., 111 AD3d 1090, 1091 [2013] [internal quotation marks, brackets, ellipsis and citations omitted], lv denied 22 NY3d 862 [2014]; accord Matter of Evelyn EE. v Lorraine B., 152 AD3d 915, 918 [2017], lv denied 30 NY3d 903 [2017]). Although the grandmother did not indicate in her petition what particular family offense the father committed, and Family Court neglected to specify which of the family offenses it found the father to have committed, we may independently review the record to determine whether a fair preponderance of the evidence supports a finding that the father committed one of
The grandmother testified that, on June 30, 2016, she and the stepgrandfather had a confrontation with the father concerning whether he could have overnight guests while living at the grandmother‘s house. According to the grandmother, after the stepgrandfather told him that he could not have overnight guests, the father became extremely agitated and began screaming obscenities at him. The grandmother further testified that, after the stepgrandfather left the room, the father stood up and came toward her in a threatening manner, causing her to push him away. The grandmother recounted that the father had been verbally and physically abusive to her in the past and she feared for her safety. According the requisite deference to Family Court‘s credibility determinations (see Matter of Evelyn EE. v Lorraine B., 152 AD3d at 918), we conclude that the grandmother‘s prior experience of being verbally and physically abused justified her fear that the father was going to subject her to physical contact so as to support a finding, by a fair preponderance of the evidence, that the father committed the family offense of harassment in the second degree (see Matter of Corey v Corey, 40 AD3d 1253, 1254-1255 [2007]).
Garry, P.J., McCarthy, Devine and Mulvey, JJ., concur.
ORDERED that the orders are affirmed, without costs.