C.F.B. v T.B.

[*1] C.F.B. v T.B. 2005 NY Slip Op 51412(U) [9 Misc 3d 1105(A)] Decided on May 24, 2005 Supreme Court, Erie County Peradotto, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 24, 2005
Supreme Court, Erie County

C.F.B. and C.H.B., Petitioners

against

T.B., Respondent







Joan Warren, Esq.

1660 Kensington Avenue

Buffalo, NY 14215

Attorney for Petitioners

Roger T. Davison, Esq.

Bouvier, O'Connor, LLP

P.O. Box 98

East Aurora, NY 14052Attorney and Guardian ad litem for Respondent

Paul Vance, Esq.

1000 Olympic Towers

300 Pearl Street

Buffalo, NY 14202

Law Guardian

Erm. Peradotto, J.

Petitioners are the maternal grandparents of G.B. ("the child) who is now twelve years old. Petitioners seek sole custody of the child with a schedule of supervised visitation with the Respondent, who is the child's natural mother. Petitioners also seek an Order directing Respondent or the Social Security Administration to retain Petitioner, C.F.B., as the representative payee to collect the child's derivative Social Security benefits, and requiring Respondent to pay expert fees incurred during the action. Respondent opposes Petitioners' application. [*2]

Respondent initially appeared pro se. Because this Court was concerned that Respondent was unable to adequately represent herself given the allegations of mental illness, upon the Court's motion, a guardian ad litem was appointed to represent her pursuant to CPLR article 12. The Court also appointed a law guardian to represent the child. Extensive attempts to settle the case were unsuccessful.

An evidentiary hearing was conducted on December 9, 10 and 20, 2004. Upon the testimony and exhibits introduced at the hearing; Petitioners' Proposed Findings of Fact and Conclusions of Law submitted February 2, 2005, letter dated February 9, 2005, letter dated February 18, 2005 and Reply Affidavit dated February 18, 2005; Respondent's Memorandum dated February 9, 2005, letter dated February 14, 2005, Application for Counsel Fee Award dated February 14, 2005 and letter dated March 1, 2005; and the law guardian's Statement of Services dated February 4, 2005, and submission dated February 7, 2005; I find as detailed below.

Domestic Relations Law §240(1)(a) provides that in any action or proceeding brought to obtain the custody or right of visitation with any child, the court shall enter an order for custody "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." (id.). However, "[t]he State may not deprive a natural parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances, and extraordinary circumstances alone do not justify depriving a natural parent of custody, but, once such circumstances are

found, the disposition of custody is controlled by what is in the best interest of the child." (Bennett v Jeffreys, 40 NY2d 543).

On August 22, 1999, Respondent voluntarily rescinded custody of the child, albeit temporarily, by appointing Petitioners to act as his guardians via a "Revocable Letter of Parental Custody". Exhibit 4. There is no claim that Respondent surrendered permanent custody of the child to Petitioners by this letter or in any other manner. Nor is there a claim of abandonment of the child by Respondent. Respondent rescinded the agreement on December 7, 2003. Exhibit 5.

The evidence established that Respondent has had prolonged periods of separation from her child, and, until recently, a lack of an established household. Prolonged separation of mother and child constitutes "extraordinary circumstances" (Bennett v Jeffreys, 40 NY2d 543, 544). In addition, an "extended disruption of custody", as that term is defined in Domestic Relations Law §72(2)(b), constitutes "extraordinary circumstances" (Domestic Relations Law §72(2)(a)). Domestic Relations Law §72(2)(b) defines "extended disruption of custody" as "a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents" (id.). Petitioners cared for the child periodically throughout his life, and continuously from June 1999 through the summer of 2001, and from December 2001 through the present. The child has grown attached to Petitioners and has expressed his preference to reside with them to the law guardian and to the court appointed expert, Brian Joseph, M.D. This Court finds that extraordinary circumstances exist in this case (see Domestic Relations Law §72; Bennett v Jeffreys, 40 NY2d 543).

[*3]Best Interest of the Child

Having found the existence of extraordinary circumstances, this Court must determine what is in the best interest of the child (Bennett v Jeffreys, 40 NY2d 543, 548). As stated above, Respondent voluntarily gave temporary custody of the child to Petitioners in August 1999 by executing a "Revocable Letter of Parental Custody" (Exhibit 4). Respondent testified that this was in her son's best interest at that time. Respondent visited the child at Petitioners' home until early 2004, when Petitioners stopped allowing visitation at their home because Respondent was verbally abusive to them in front of the child.

It is not disputed that Respondent has been diagnosed with bipolar disorder, and has been hospitalized on numerous occasions for this disorder. It also is not disputed that Respondent receives Social Security disability benefits as a result of her mental illness.

The evidence established that Respondent has no assets or money and has received significant financial and money management assistance from her parents over the years. Although Respondent was self-supporting for many years, she has not demonstrated an ability to run a household or manage money during much, if not all, of the child's life. Respondent has made some very poor decisions which have contributed to great instability in the child's home environment. As examples, Respondent lived with a man who had alcohol problems, lived with another man who mistreated her and the child, and has left the child home alone and unsupervised at times.

The evidence overwhelmingly established that there has been a lack of stability in the child's life caused by Respondent's frequent job changes and relocations. Most of these job

changes and relocations resulted in Respondent leaving her son in Western New York in the care of Petitioners for extended periods.

Dr. Joseph, whom this Court found to be highly qualified and extremely credible, testified that Respondent's conduct is consistent with Respondent's bi-polar diagnosis and that it will get more serious as Respondent ages, even if she is appropriately medicated. Respondent likely will display more severe and longer lasting episodes of mania and depression and there is no way to predict when or with what frequency these episodes will occur. Dr. Joseph opined that since 1999, Respondent has demonstrated the downward spiral of someone who is seriously and persistently mentally ill and lacks the emotional stability to parent her son when she enters the various phases of her illness. He stated that Respondent has a history of haphazard and irregular compliance with the treatment and medication recommendations of her physicians, and opined that her condition will not stay stable.

Respondent's testimony was unfocused, inconsistent and rambling, and her answers often were unresponsive. She presented as very agitated and frequently distrustful. Dr. Joseph opined that Respondent has little insight into her conduct, her disability or the effect of her disability on her and her son. Respondent's testimony left the definite impression on this Court that she discounts her illness and its effects on her life and conduct. This is especially troubling because she cannot correct that of which she is not aware. While the Court has no doubt that Respondent loves her son, the credible evidence established that she cannot control the poor decisions she makes.

There was evidence that Respondent sought treatment with John Wadsworth, M.D. [*4]However, the evidence did not establish a pattern of compliance with medical advice and treatment sufficient to convince this Court that Respondent recognizes the extent of her mental illness, that she will consistently comply with the treatment and medication recommendations of her physicians, and can properly manage her illness and her life with her son. The evidence concerning Respondent's history demonstrates otherwise.

Dr. Joseph noted that the child has lived with Petitioners since 2001 and has done well. The child has expressed a preference to reside with his grandparents while having the ability to have access with his mother. The preference expressed to the law guardian and to Dr. Joseph requires serious consideration by the Court. Further, the evidence established that Petitioners care for the child, provide a stable and nurturing home, and provide for all of his basic needs, including health care and a superb education. Petitioners are in good health and have sufficient means to support the child. Significantly, they also foster a positive relationship between the child and his mother by encouraging him to talk to her and advise her about his school and extra-curricular activities.

A child's need for stability is one of the foundational policies in child custody law (Guinta v Doxtator, 20 AD3d 47). It is in the child's best interest to have stability, comfort and support in his home. Dr. Joseph emphasized that it is frightening for a child to be around a custodian who is unpredictable in her behavior and is not dependable. In this Court's view, a person with those tendencies cannot and should not be entrusted with the primary custodial responsibility of a child.

Based on the credible evidence presented, this Court finds that it is in the best interest of this child, that sole custody be awarded to Petitioners with a schedule of supervised visitation to Respondent. The supervisor shall be someone other than Petitioners and shall be approved by the law guardian. Any costs associated with the supervised visitation shall be paid by Petitioners. This Court recommends that the parties contact Noreen Flynn, LCSW-R, Part 14,

Family Court Building, One Niagara Plaza, Buffalo, New York 14202, (716) 845-9340, to arrange the supervised visitation.

At a minimum, Respondent shall have visitation with the child one weekday each week from 5:00 p.m. to 8:00 p.m. on a day that best suits the schedules of the child and Respondent, and on one weekend day each week from 10:00 a.m. to 7:30 p.m. on the day that best suits the schedules of the child and Respondent. If the parties cannot agree on the visitation schedule, the law guardian shall determine which days are best suited for visitation. Respondent shall be entitled to additional visitation as agreed upon by the parties and approved by the law guardian.

Counsel Fees

The attorney appointed to represent Respondent and the law guardian seek payment of their counsel fees. Petitioners assert that they should not be responsible for payment of those fees since Domestic Relations Law §237 does not permit a court to order anyone except a "parent or spouse" to pay attorneys fees in the context of a custody proceeding.

It is clear that a court does not have authority to order a petitioner to pay a respondent's attorney's fees, costs, and expenses in connection with an application for grandparent visitation (Follum v Follum, 302 AD2d 861; Domestic Relations Law §237). However, it is not clear whether Domestic Relations Law §237 contemplates a custody dispute such as the one presented in this case. Here, Petitioners arguably put themselves in the position of a "parent" by seeking [*5]custody of Respondent's child.

Further, much of the evidence offered by Petitioners in support of their application supports the finding that Respondent is not capable of handling her financial affairs. It is inconsistent for Petitioners to maintain that position at trial and now seek to impose financial responsibility on Respondent for the legal fees incurred as a result of their application. It is also inconsistent for Petitioners to claim that they should not be responsible for the additional legal fees generated because Respondent would not participate in meaningful settlement negotiations, when they claimed at trial that Respondent was unable to act reasonably and rationally as a result of her mental illness.

This Court need not reach the issue of whether Domestic Relations Law §237 contemplates an award of counsel fees in the context of a case such as this one. As stated above, Respondent's counsel was appointed as a guardian ad litem pursuant to CPLR §1201. CPLR §1204 gives the court the authority to order any party to pay the reasonable compensation of an appointed guardian ad litem.

The evidence established that Petitioners are in a superior financial position than Respondent and much better able to pay the law guardian and guardian ad litem's counsel fees. Further, many of the reasons for which custody is being awarded to Petitioners are the reasons that justify an order that they be fully responsible for the law guardian and guardian ad litem fees in this case.

The law guardian's outstanding fees total $2761.25, and his application is supported by itemized documentation showing the work performed and his hourly rate. His fees are fair and reasonable and Petitioners are ordered to pay the outstanding balance within 45 days of this Decision and Order.

This Court has reviewed the application of Respondent's counsel and finds that his application is supported by itemized documentation showing the work performed and his hourly

rate. His fees are fair and reasonable and Petitioners are ordered to pay his total fees of $8,156.00 within 45 days of this Decision and Order.

Based on the foregoing, it is hereby,

ORDERED that Petitioners are awarded sole custody of the child, and it is further

ORDERED that Respondent shall have supervised visitation with the child one weekday each week from 5:00 p.m. to 8:00 p.m. on a day that best suits the schedules of the child and Respondent, and on one weekend day each week from 10:00 a.m. to 7:00 p.m. on the weekend day that best suits the schedules of the child and Respondent, and it is further

ORDERED that the supervisor shall be someone other than Petitioners and who is approved by the law guardian, and it is further

ORDERED that if the parties cannot agree on the visitation days, the law guardian shall determine which days are best suited for visitation, and it is further

ORDERED that Respondent shall be entitled to additional visitation as agreed upon by the parties and approved by the law guardian, and it is further

ORDERED that any costs associated with the supervised visitation shall be paid by Petitioners, and it is further

ORDERED that Respondent or the Social Security Administration shall retain Petitioner, [*6]C.F.B., as the representative payee to collect the child's derivative Social Security benefits, and it is further

ORDERED that Petitioners pay the law guardian's outstanding fees of $2,761.25 and the guardian ad litem's fees of $8,156.00 within 45 days of this Decision and Order.

___________________________________

HON. IN ERM. PERADOTTO, J.S.C.