Matter of Carter W.

[*1] Matter of Carter W. 2016 NY Slip Op 51147(U) Decided on March 7, 2016 Family Court, Monroe County Ruhlmann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2016
Family Court, Monroe County

In the Matter of Carter W., A Child under the Age of Eighteen Years.



NN-13001-13



Monroe County Dept of Law, by Carol Eisenman, Esq., Monroe County Department of Human Services

Rhian D. Jones, Esq., Attorney for the Child

Edward J. Leichtner, Esq. for James D.

Jon M. Stern, Esq. for Robin K.

David S., Respondent, Pro Se

Robert P. Neilon, Esq. for David W.
Dandrea L. Ruhlmann, J.

This decision addresses whether a custody-visitation petition brought by a former boyfriend and unrelated father figure to a child, should be dismissed mid-trial based upon a lack of extraordinary circumstances.

Procedural History:

This case has a protracted history. On November 25, 2013 the Monroe County Department of Human Services (the Department) filed a Family Court Act Article 10 petition against both Victoria S. (Mother) and her boyfriend, James D. (Mr. D.), as a "person legally responsible" for Carter W. (DOB: 2012) (see Family Court Act § 1012 [g]). The neglect petition alleged inter alia, that Mother and Carter lived with Mr. D. and despite Mr. D.'s knowledge that [*2]Mother used illicit drugs he left Carter in her care. Carter was removed and placed with Mother's aunt, relative resource Robin K. (Great Aunt), under the supervision of the Department. The Court ordered visitation for both Mother and Mr. D. Mr. D. filed a Family Court Article 6 custody petition on May 8, 2014. Great Aunt filed a custody petition on May 20, 2014 initially seeking joint custody of Carter with her brother, maternal grandfather David W. (Grandfather). The Court approved Grandfather for unsupervised visits with Carter and since he lives in Pennsylvania the Court ordered an Interstate Compact on the Placement of Children (ICPC) application. The Court was never informed of the results of the ICPC. On June 10, 2014 the Department withdrew its neglect petition against Mr. D. and contended that he should not be permitted continued visitation with Carter, although Mr. D.'s Family Court Act Article 6 petition was still pending. On July 10, 2014, Mother admitted neglect and the child's placement with Great Aunt was continued.

This Court commenced a hearing on whether Carter's visitation with Mr. D. should continue pending the custody determinations. Mother had not yet finished testifying at the time of her untimely death. Despite Mother's death, the Department moved for the Court to maintain jurisdiction over the matter pursuant to Family Court Act § 1088 and the Court granted such motion. As the case progressed the Department took the position of supporting Great Aunt for custody.

This Court by orders entered January 16, 2015 and amended February 5, 2015, continued supervised visits between Mr. D. and Carter based in large part on the extraordinary nature of this case and the clear bond that mother acknowledged existed at that time between Carter and Mr. D., or "Dada Jim" as Mr. D. called himself. The New York State Supreme Court Appellate Division, Fourth Department, stayed such visitation without written decision on January 23, 2015 and February 6, 2015.

The Court consolidated the permanency planning hearing and the three custody hearings for judicial economy to reach the crux of whether extraordinary circumstances exist and what is in Carter's best interests (CPLR § 602; see Matter of Amber B., 50 AD3d 1028 [2d Dept 2008], citing Matter of A.B. v D.W., 16 Misc 3d 578, 581 [Fam Ct, Monroe County 2007]). On June 1, 2015 Grandfather filed his own Family Court Article 6 custody petition, then amended it on September 2, 2015.[FN1] This Court granted Grandfather's motion to intervene on the Family Court Article 10 permanency planning hearing. The New York State Supreme Court, Appellate Division, Fourth Department, however, stayed this Court's order, without written decision.

The consolidated hearing commenced and mid-trial, the Department, Great Aunt, Grandfather and the Attorney for Carter reached a settlement supported by Carter's biological father, David S., wherein Great Aunt was given sole custody of Carter with substantial visitation to Grandfather (the Custodial Arrangement). The Court held a Lincoln proceeding with Carter in April 2015 less than eight (8) months before all parties, except for Mr. D., agreed to the Custodial Arrangement. The Department specifically reserved its right to be made a party to any future Family Court action regarding Carter's custody. Important Carter's biological father appeared pro se before the Court in full support of the Custodial Arrangement.

Carter's biological father does not support a role for Mr. D. in his son's life.[FN2] As part of the settlement, all participating parties stipulated Grandfather would not allow Mr. D. access to Carter in any form, unless Great Aunt in writing agreed. As Mr. D. was not a party to those actions, he did not participate in the settlement. On January 14, 2016 the Department moved for dismissal of Mr. D.'s remaining petition for custody of Carter. Attorney for Carter joined in the application.

Decision:

While in January 2015 this Court denied the Department's initial motion to dismiss Mr. D.'s custody petition based in part upon the nature of Mr. D.'s relationship with Carter, the absence of a parent in Carter's life, the on-going neglect case and issues raised concerning Carter's best interests (see Matter of Tucker v Martin, 75 AD3d 1087 [4th Dept 2010], appeal withdrawn 15 NY3d 891 [2010] [deceased-mother's boyfriend had standing and proved both extraordinary circumstances and that it was in the child's best interests that child reside with him]; Matter of Deborah E.C. v Shawn K., 63 AD3d 1724 [4th Dept 2009], lv denied Deborah E.C. v Shawn K., 13 NY3d 710 [2009] [incarcerated father's wife showing of extraordinary circumstances triggered best interests of child test]; Matter of Stent v. Schwartz, 133 AD3d 1302 [4th Dept 2015] [child's half brother had standing and proved both extraordinary circumstances existed and that it was in the child's best interests that child reside with him]; Matter of Amy H. v Chautauqua County Dept of Social Servs., 13 AD3d 1048 [4th Dept 2004], amended on rearg 789 NY3d 455 [2005] [non-family member nurse had standing to seek custody of a child if extraordinary circumstances exist]), the nature of Mr. D.'s relationship with Carter now has substantially changed.

Since January 23, 2015 when the New York State Supreme Court, Appellate Division, Fourth Department, stayed his visitation, Mr. D. has had no sanctioned contact with Carter, creating more than a year's absence from the three and one-half (3-1/2) year old's life.[FN3] While a period of separation during which a petitioner is trying to regain custody lawfully is "entitled to little, if any, consideration" (Matter of Dickson v. Lascaris, 53 NY2d 204, 210 [1981], citing Matter of Sanjivini K., 47 NY2d 374, 381-382 [1979]), Mr. D. never had Carter in his exclusive care for any prolonged period of time (cf. Matter of Cote v Brown, 299 AD2d 876 [4th Dept. 2002]). In contrast, for two and a half (2-1/2) years Carter has resided with Great Aunt first as a Family Court Act § 1017 resource and now under the Custodial Arrangement. The Attorney for Carter based upon his age has substituted her judgment for Carter's preference and strongly advocates for dismissal of Mr. D.'s petition because of Carter's solid bond with his Great Aunt (Matter of Banks, 285 AD2d 686 [3d Dept 2001]; Matter of Vincent A.B. v Karen T., 30 AD3d 1101 [4th Dept 2006], lv denied 7 NY3d 711 [2006] [disruption of custody for a prolonged period of time with consequential bonding of the children to a non-parent custodian constitutes extraordinary circumstances]; Matter of McDermott v. Bale, 94 AD3d 1542, 1543 [4th Dept 2012], quoting Family Ct Act § 241 [the purpose of an attorney for the children is "to help [*3]protect their interests and to help them express their wishes to the court"]; Matter of Viscuso v Viscuso, 129 AD3d 1679, 1680 [4th Dept 2015], quoting 22 NYCRR 7.2 [d] [3] [an attorney for a child may substitute his judgment when convinced that a child "lacks the capacity for knowing, voluntary and considered judgment"]).

"[A] hearing on the issue of extraordinary circumstances is not required where the court otherwise possesses sufficient information to render an informed determination on that issue" (Matter of Howard v. McLoughlin, 64 AD3d 1147 [4th Dept 2009], citing generally Matter of Bogdan v. Bogdan, 291 AD2d 909 [4th Dept 2002]; see also Matter of Piwowar v. Glosek, 53 AD3d 1121 [4th Dept 2008]). The facts and history of these proceedings are well-known to this Court. Indeed the history of this case is quite disturbing, and as the case progressed the Court became even more disturbed by the conduct of all parties. Over twenty (20) motions were filed and ten (10) days of testimony taken. Mr. D. substituted counsel four (4) times. Seemingly lost is what is at issue - a three and a half (3-1/2) year old boy, Carter, who lost his Mother, on December 4, 2014, during the pendency of this case, after she overdosed.

Viewing the evidence in a light most favorable to Mr. D., he is constrained at this juncture from proving extraordinary circumstances. It is settled law that, as between a biological parent and a non-parent, the parent has a superior right to custody that cannot be denied unless the nonparent can establish that the parent has relinquished that right because of "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" (Matter of Michael G.B, v. Angela L.B., 219 AD2d 289, 291 [4th Dept 1996], quoting Matter of Bennett v. Jeffreys, 40 NY2d 543, 544 [1976]). This rule applies even when, as is this case, the biological parents "have not been model parents" (Santosky v. Kramer, 102 US 1388, 1395 [1982] [applied due process principles to termination of parental rights cases]). Until the non-parent proves extraordinary circumstances the court does not reach the issue of the best interests of the child (Stent, 133 AD3d 1302; Bennett, 40 NY2d 543; Vincent A.B., 30 AD3d 1100; Matter of Ruggieri v. Bryan, 23 AD3d 991 [4th Dept 2005]).

The resolution of custody between father, Great Aunt, Grandfather and Attorney for Carter achieved permanency for Carter. Family Court Act §§ 1089 (d) and 1017 (2) mandate the Court approve or modify the permanency goal of the placement of the child with a fit and willing relative and to determine whether such relative is suitable. The Court "may place the person with whom the child has been directly placed under supervision during the pendency of the proceeding" (Family Court Act § 1017 [3]; see also Matter of A.B. v D.W., 16 Misc 3d 1101[A] [Fam Ct, Monroe County 2007]). Such order of supervision shall set forth "the terms and conditions that the relative . . . must meet and the actions that the [Department] must take to exercise such supervision" (Family Court Act § 1017 [3]). To address both Mr. D.'s allegations of recent serious criminal activity by Great Aunt's adult son, Ricky K., and certain revelations of the child made in camera (see Lincoln v Lincoln, 24 NY2d 270 [1969]; see also Family Court Act § 664) the Court under Social Services Law § 422(4)(A) ordered the Department to supplement its Permanency Hearing Reports with information regarding the Great Aunt's household composition, and dates, locations and persons who traveled outside the county with Carter.

Non-respondent father David S. has never had Carter in his care and has agreed to Great Aunt continuing as Carter's custodian (cf. Banks, 285 AD2d 686 [the biological parent's abdication of rights and responsibilities and the child's poor relationship with biological parent may constitute extraordinary circumstances]). Based upon biological father's consent and [*4]evidence adduced to date at trial, the Court approved the stipulated Custodial Arrangement, resolving those Article 6 and 10 actions. Mr. D.'s future contact with Carter shall be limited to the terms of the Custodial Arrangement.

NOW THEREFORE, it is

ORDERED that the Department's motion to dismiss Mr. D.'s petition for custody and visitation, as joined by the Attorney for Carter is granted.

Dated this 7th day of March, 2016 at Rochester, New York.

___________________________________

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE Footnotes

Footnote 1:Maternal Grandmother Debra C. also filed a Family Court Act Article 6 custody petition on May 20, 2015 but withdrew her petition on September 9, 2015.

Footnote 2:While Carter's biological father David S. appeared at trial sporadically, he was not a named Respondent in the Department's Family Court Act Article 10 neglect petition.

Footnote 3:Mr. D. appeared uninvited at Carter's third birthday party. Great Aunt conceded she allowed him to remain.