Matter of Golden v GoldenMatter of Golden v Golden
Randolph V. Kruman, Cortland, for appellant.
Natalie B. Miner, Homer, for Jeffrey Wayne Golden, respondent.
Abbie Goldbas, Utica, for Christina M. Golden and another, respondents.
Andrew J. Mooney, Ithaca, attorney for the children.
Garry, J. Appeal from an ordеr of the Family Court of Cortland County (Campbell, J.), entered October 18, 2010, which, among other things, granted petitioner‘s application, in three proceedings pursuant to
Respondent Christina M. Golden (hereinafter the mother) and respondent Bradley A. Rice (hereinafter the father) are the parents of two children (born in 2007 and 2009). After living together for several years, they separated in 2009, shortly before the youngest child was born. The mother and the children thereafter stayed with petitioner, the mother‘s father (hereinafter the grandfather), for several months before moving into an apartment of their own. In January 2010, respоndent Cortland County Department of Social Services (hereinafter DSS) investigated several reports regarding the mother and her boyfriend and their inadequate guardianship of the children. As a result, the mother voluntarily entered into a “safety plan,” thereby placing the children with the grandfather.1 DSS informed the father of the investigation and this plan in March 2010, and he filed a petition for custody of the older child shortly thereafter. In May 2010, after an order of filiation was entered relative to the younger child, he filed a petition for her custody also. The grandfather also filed a custody petition for both children in May 2010.2 Family Court ordered an investigation pursuant to
Absent a showing of ” ‘surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended pеriod of time or other extraordinary circumstances,’ ” a parent has a claim of custody to his or her child that is superior to all оthers (Matter of Ferguson v Skelly, 80 AD3d 903, 904 [2011], lv denied 16 NY3d 710 [2011], quoting Matter of Gray v Chambers, 222 AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]). Persistent neglect is demonstrated by a failure “to maintain substantial, repeated and continuous contact with a child or to plan for the child‘s future” (Matter of Arlene Y. v Warren County Dept. of Social Servs., 76 AD3d 720, 721 [2010], lv denied 15 NY3d 713 [2010] [internal quotation marks and citations omitted]; see
Here, we initially note that the mother stipulated to extraordinary circumstances at the fact-finding hearing based upon her inability to provide for the children and unaddressed mental health issues. As to the father, according deference to Family Court‘s factual findings and credibility determinations, we find a sound and substantial basis in the record supporting the existence of extraordinary circumstances (see Matter of Ferguson v Skelly, 80 AD3d at 905; Matter of Magana v Santos, 70 AD3d 1208, 1209 [2010]).
The father testified at the fact-finding hearing that he had not used illegal drugs for many years аnd did not abuse alcohol. The mother, however, testified that while they were together, the father had grown a marihuana plant, smoked marihuana frequently—even in front of the older child—and often drank to the point of intoxication. A DSS caseworker who conducted an unannounced visit of the father‘s apartment in March 2010 testified that she found a 30-pack of beer in the father‘s refrigerator, a shelf displaying 10 tо 15 empty whiskey bottles, and a glass marihuana pipe. She also observed numerous, unlocked pellet guns displayed on a shelf abovе the father‘s couch. Family Court was not satisfied by the father‘s explanations concerning these items “[b]ecause of his total lack оf credibility.” Although the father has been consistently employed, he has also frequently changed both jobs and apartments, posing issues as to the stability of his employment and living arrangements.
More troubling is the father‘s inconsistent involvement in the children‘s lives. The testimony revealed that whеn the older child was born, he rarely assisted with her care, preferring that someone else see to the child‘s needs. He initially questionеd the paternity of the younger child, and has failed to provide any support, in the form of either supplies or money, to anyone caring for the children. The father did not visit with the children at all for several months following his separation from the mother, and only began to regularly see the children in May 2010, after filing for custody. Family Court then established a schedule of supervised visitation at the grandfather‘s home, but the father has remained inattentive to the children during these visits, and frequently ends them early. During his time with the children, he often uses his cell phone to call оr text others. In addition, he has allowed the older child to engage in risky behavior, shows little interest in the younger child, and refuses to change diаpers. Both the caseworker and the father‘s attorney recommended that the father attend classes to improve his parenting skills, but he has failed to do so. Considering all of the above, the evidence supports a finding of extraordinary circumstances (see Matter of Cumber v O‘Leary, 56 AD3d 1067, 1070 [2008]; Matter of McDevitt v Stimpson, 1 AD3d 811, 813 [2003], lv denied 1 NY3d 509 [2004]).
Next, a sound and substantial basis in the record supports Family Court‘s best interests analysis and the award of custody to the grandfather (see Matter of Tennant v Philpot, 77 AD3d at 1089; Matter of Turner v Maiden, 70 AD3d at 1216-1217). The grandfather has worked as a farmhand and has maintained the same home for 28 years. His job allows him to come home several times per day to spend time with the children. His longtime, live-in girlfriend previously worked at a child-care center as both a cook and a toddler teacher; she has also worked as a nanny. The children have an established schedule, and the older child‘s behavior has greatly improved while under the grаndfather‘s care. Accordingly, we find no reason to disturb Family Court‘s determination (see Matter of Cumber v O‘Leary, 56 AD3d at 1070-1071).
Peters, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the ordеr is affirmed, without costs.