A.S. v R.G.

[*1] A.S. v R.G. 2023 NY Slip Op 50523(U) Decided on May 22, 2023 Family Court, Erie County Freedman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2023
Family Court, Erie County

A.S., Mother, Petitioner

against

R.G. Paternal Grandmother, Respondent



File No. 220102



FARES AHMAD RUMI, ESQ.,

Attorney for A.S, Mother

DAVID A. SHAPIRO, ESQ.

Attorney for R.G., Paternal Grandmother

PETER P. VASILION, ESQ.

Attorney for the Child, M.S., Jr.
Brenda M. Freedman, J.

Petitioner-Mother, Ms. A.S. [" Mother"] filed a Petition against Respondent-Father, M.S. ["Father"] on October 5, 2020 seeking Sole Custody of the parties' son, M S, Jr., born in 2014 ["Peanut"]. Mother filed a cross-Petition on November 13, 2020 also seeking Sole Custody of Peanut.

Prior to the instant Custody Petitions being filed in this matter, Father brought a Family Offense Petition against Mother on behalf of Peanut. A Temporary Order of Protection was issued on June 17, 2020 wherein Mother was ordered to stay away from Peanut. On August 18, 2020 the Temporary Order of Protection was modified to include a carve out for Mother to have supervised daytime Access with Peanut on Saturdays and Sundays from 9:00am to 7:30pm and further daytime Access as could be agreed and arranged.

Father was murdered on March 14, 2021.

Two days later, on March 16, 2021, the Paternal Grandmother, R.G. ["Paternal [*2]Grandmother"], filed a Petition against Mother seeking Custody of Peanut. A temporary Order was entered on consent on April 7, 2021 directing Peanut to reside with Paternal Grandmother. Father's Family Offense case on which the Temporary Order of Protection was issued was dismissed on the same date due to his death. On June 11, 2021, Paternal Grandmother filed an Amended Custody Petition and withdrew the former one. The Amended Petition was given a different docket number from the first Petition so the original docket was dismissed. On April 16, 2021, another Temporary Order was entered eliminating Mother's Sunday Access and changing her supervised Access to Saturdays from 10:00am to 7:00pm. That Order also provided for additional video Access two days per week. By Order dated September 10, 2021, the electronic Access was directed to occur Tuesdays and Thursdays between 6:00pm and 7:00pm or as otherwise agreed and arranged. The supervised Saturday and electronic Access has been continued through the present date.

Trial commenced February 3, 2022 and continued April 20, 2022, May 3, 2022, August 25, 2022, October 3, 2022, November 1, 2022, February 6, 2023 and concluded on February 7, 2023. The Court heard from the following witnesses: Ms. V. St., Mother's best friend; K. S., the Maternal Grandmother; A.S., the child's Kindergarten teacher; B. W., a Buffalo Police Officer; D.T., a family friend; E.B., Paternal Grandmother's spouse; and M.G., an acquaintance of Paternal Grandmother An In camera was held with Peanut on February 17, 2023.

These proceedings were prolonged due to the Covid-19 pandemic. The first day of Trial was held virtually due to the pandemic, however all involved appeared by video and the Court was able to observe their demeanor and make credibility assessments. All remaining days of testimony were held in-person and the In camera was held in-person.

A request to re-open proof was granted on consent on February 24, 2023 whereupon certain facts were stipulated into evidence.

A second request to re-open proof was granted on consent on March 14, 2023 whereupon additional evidence was received into the record on consent.

All parties submitted written summations after the final close of proof.

NOW, upon all the pleadings and proceedings held herein and upon the Court's unique opportunity to observe and evaluate the demeanor credibility, temperament and sincerity of each witness, review the pertinent statutes and case law, and apply it to the evidence adduced at Trial, I render the following Findings of Fact and Conclusions of Law, Decision and Order:

FINDINGS OF FACT

Peanut is the natural child of Mother and Father. Although no formal Orders of Custody or Access had previously been in place, until June, 2020 Peanut resided primarily with Mother and his two (2) year old half-brother, E.C. E.C. is the child of Mother with Mr. Mr. C. ["Mr. C."].

Mr. C. resided with Mother prior to January, 2021. He was then incarcerated from approximately January, 2021 through approximately August, 2021. Upon his release from jail, Mr. C. moved back into Mother's home. He resided with her until he was arrested for the murder of Father and was remanded in December, 2021. Although Mother is no longer in a romantic relationship with Mr. C., they co-parent E. C. and she has a good relationship with him.

Peanut was in Kindergarten during the 2019-2020 school year while he resided with Mother. Peanut's Kindergarten teacher, Ms. A.S. testified that she had frequent contact with both Mother and Mr. C., who often transported Peanut to and from school either together or [*3]individually. She believed Mr. C. was Peanut's father because he so frequently dropped off or picked up Peanut from school.

Ms. A.S. testified that Peanut struggled academically in Kindergarten, that he was below grade level, but that he did his homework which would have involved the parent. She testified that Peanut was disruptive and rambunctious, and that he ran around the classroom often. Ms. A.S. testified that Peanut made up a story about another student hitting him which turned out to be false.

On or about June 17, 2020, Father filed a Family Offense petition wherein he alleged that on June 10, 2020, Peanut had come to his home from Mother's home with a black eye which was swollen and heavily bruised. He alleged that Peanut told both him and the Paternal Grandmother that Mother had punched him in the face and that it was not the first time his Mother had struck him. Father took Peanut to the hospital to have the eye checked out, filed a police report and called Child Protective Services. A temporary Order of Protection was issued in favor of Peanut against Mother directing her to have no contact with Peanut.

Ms. V. St., Mother's best friend testified that she has never seen Mother hit Peanut. She was present at Mother's home the night of the eye injury. She testified that while Mother was in the bathroom, Peanut tripped on a cord and fell, hitting his eye. On cross-examination she admitted she did not really see what Peanut tripped on or what he fell on, she was holding baby E.C. and was focused on him, but that Mother did not hit Peanut. She testified that when Peanut fell, she called for Mother, who came from another room, yelled at Peanut for running in the house and put ice on his face. When showed the photograph taken of Peanut's black eye, Ms. V. St. testified the bruise was not that big when she saw it.

Mother testified that on the evening that Peanut sustained the eye injury, he was running around the home and fell, hitting his eye on something near the TV stand. Mother testified that she was called into the front room by Ms. V. St. who said that Peanut had been running and fell. Mother told Peanut "that's why I told you not to run in the house".

Ms. V. St. and Mother both testified that Mother called Father that evening to tell him that Peanut had fallen and hit his face. There was no testimony about why this call was made other than to let Father know that Peanut had fallen.

Mother did not seek medical care, because as a Certified Nursing Assistant, she knew basic first aid and, in her opinion, the injury was not so serious as to warrant taking the child to the emergency room. However, she called off work the next day to monitor the bruises. She testified that her Mother watched Peanut the day after that.

Child Protective Services initially indicated their report about this incident against Mother, but it was later overturned.

Mother admitted that she "whoops" or spanks Peanut once or twice a month for bad behavior, but denied ever hitting, punching or slapping him. She testified she only "whoops" him for serious matters, not every time he does something wrong.

Mother testified that Peanut had a history of stealing, lying and swearing. Mother testified Peanut kicked a hole in a wall and blamed his cousin, and that he also spilled cereal and claimed his half-brother did it.

Ms. K.S., the Maternal Grandmother testified that she works as a cardiac technician at Millard Fillmore Suburban Hospital. She used to babysit Peanut when Mother was working. In June, 2020, Peanut came to her home with a black eye. When she asked Peanut about it, he did [*4]not make a big deal about it, he was acting normal and playing, and so she took no action. When shown the photograph of Peanut's black eye, Maternal Grandmother testified it did not look that dark when she saw it. She testified that Peanut has lied to her, including denying throwing a rock and taking candy from her. Two or three years ago when Peanut was residing with his Mother, she heard Peanut use profanities.

When Peanut resided with Mother and she had to work, the Maternal Grandmother would watch him on weekends and Ms. D.T. would watch him on weekdays.

The Maternal Grandmother has been one of the two supervisors for Mother's Access since July 2, 2020. Maternal Grandmother testified she used to be close with Peanut, but she is not anymore. It was not explained why, given that she is one of Mother's supervisors, she is no longer close with Peanut.

Ms. D.T. testified. She is the mother of Mother's former boyfriend. Ms. D.T. had a good relationship with Mother years ago; even after Mother broke up with Ms. D.T.'s son, they stayed close. Ms. D.T. attended Peanut's pre-K moving up ceremony. At that ceremony, both Father and Mr. C. were present along with Paternal Grandmother and other family members. Mr. C. was in the family pictures along with Father

Ms. D.T. testified that during those years, Mother did nothing to encourage Peanut's relationship with his father or paternal grandmother. Mother did encourage Peanut's relationship with Mr. C.

Currently, Paternal Grandmother brings Peanut to Ms. D.T.'s home on Fridays and he sleeps there. Mother picks him up Saturday mornings and delivers him back to Ms. D.T.'s home that evening. Peanut stays overnight at Ms. D.T.'s home on Saturday evenings and he spends Sundays there with her and her family. Peanut calls Ms. D.T. "Nani" and she considers Peanut part of her family.

Ms. D.T. testified that when Peanut is dropped off after his Access with Mother, he is often angry, but after a short while is ok. Ms. D.T. testified that other than those few minutes, Peanut is usually happy.

In approximately June, 2020, Ms. D.T. testified that she saw Peanut the day before the eye injury, when there were no marks, and the day after he got the bruise on his eye. The photograph in evidence is an accurate image of what it looked like. The bruise took up the whole side of Peanut's face. When she asked Peanut what happened, he said "I fell, I think" then he started crying and said "My mommy hit me". Ms. D.T. testified that she called Mother about it and that Mother told her they spent five hours doing schoolwork and Peanut could not distinguish "has" from "had", so she "gave him a "whooping" and "beat his f*No.&king "a*#". Father picked Peanut up from Ms. D.T.'s home that evening and she told him what Peanut and Mother had told her. Father said he would take Peanut to the hospital and call CPS.

A few days later, Peanut asked to come to Ms. D.T.'s home and Father arranged it. The bruise was turning lighter. Ms. D.T. testified Peanut again told her that his mommy had hit him.

Ms. E.B., Paternal Grandmother's spouse testified. In June, 2020, Paternal Grandmother had taken her grandkids including Peanut, to the park. Paternal Grandmother sent her a photograph of Peanut. The right side of his face from the bridge of his nose across to his ear and down to his jaw was all bruised, his eye was blackened. Later, she asked Peanut what happened to his face and he told her "My mommy hit me".

Paternal Grandmother testified that in June, 2020 she was at the park with Peanut, her son, Father, her daughter, S. and her granddaughter, A. She noticed Peanut's blackened face. It [*5]looked like he'd been punched in the eye. It was the size of a fist, about 4-5 inches long, covering his eye, extending over his cheekbone and over by the ear. She asked Peanut how it happened. Peanut shrugged his shoulders and would not say. Paternal Grandmother asked if someone hit him. Peanut responded right away "Not my mom", which seemed odd to her. Paternal Grandmother stopped questioning him and called Child Protective Services.

On July 2, 2020, the Temporary Order of Protection was modified to provide Mother with daytime supervised Access on certain specified dates based upon her work schedule. The supervisors were to be the Maternal Grandmother or the maternal grandfather. On August 18, 2020 the Temporary Order of Protection was modified again to provide a more consistent Access schedule, specifically, alternate weekends on both Saturdays and Sundays from 9:00am until 7:30pm and further daytime Access as could be agreed and arranged through the Maternal Grandmother. The supervisors remained the same.

On March 14, 2021 Father was murdered.

Two days later, on March 16, 2021, Paternal Grandmother filed for custody of Peanut. She was granted an Order of residency on consent from Mother on April 7, 2021. Because Mother's Access schedule had been a provision of the prior temporary Order of Protection which was dismissed when Father was killed, another temporary Order was entered on April 16, 2021 providing for Mother's Access. However, it was modified to Saturdays from 10:00am until 7:00pm supervised by the maternal aunt or Maternal Grandmother. Due to concerns that Mr. C. was a suspect in the murder of Father, the Order further directed there be no other adults present during such Access time. Exchanges of the child were to occur at the home of Ms. D.T. It also directed there to be no conversations in the presence of Peanut that would undermine his affection or trust in either parent, including his deceased father or any custodian or supervisor. On September 10, 2021 at Mother's request, additional video Access was ordered to occur twice weekly.

Due to his death Father's Family Offense Petition was dismissed. On behalf of Peanut, the Attorney for the Child filed a Family Offense Petition and a Temporary Order of Protection was issued on that Petition continuing the directive that Mother was to have no contact with Peanut except for Access ordered by Family Court.

Mother testified she works full time as a Certified Nursing Assistant and that she has flexibility to work overtime if she wants more money or to work fewer hours if she needs to be home. She admitted that she had been working many hours recently including in March, April and May, 2022. One period was for 89 hours, another for 67 hours, another was over 70 hours. However, she can choose to work fewer hours if she wants. When she works, she might work 7:00am to 7:00pm or 7:00am to 11:00pm. She leaves for work around 6:15am and often gets home after midnight. When she gets home, E.C. is up, he doesn't sleep until approximately 3:00am. She is always off on Saturdays for her Access with Peanut.

Mother has a separate bedroom set up for Peanut in her home. She has family support to assist her in caring for her children when she is at work.

Peanut has a good relationship with his half-brother, E.C.

When Peanut was in Kindergarten during the 2019-2020 year, Peanut's teacher had referred him for an ADHD evaluation. Although Mother testified she had intended to follow up, she never did. In June, 2020 Peanut went to live with his father. Mother spoke with Father about an assessment. She admitted that she took no steps to obtain an assessment. Mother testified that Father did not need her authorization to arrange it, he was a parent and could do it himself. [*6]Mother acknowledged that since coming into Paternal Grandmother's care, Peanut has been diagnosed with ADHD, has been receiving treatment including being prescribed Adderall and that as a result of the diagnosis and treatment, Peanut is doing much better.

Mother did not attend the funeral of Father with Peanut. She admitted she has not spoken with Peanut about his death.

Ms. E.B. testified that she and Paternal Grandmother have been together since 2008 and married five years. Paternal Grandmother has two grandchildren. Peanut and A., aged 6, daughter of Paternal Grandmother's daughter, S.S. Peanut and A. get together frequently including holidays, weekends and summers. They went trick-or-treating together. Ms. E.B. and Peanut have a close relationship. Peanut listens to her, he doesn't require much discipline. If he loses focus on his homework, usually a stern voice will redirect him. Peanut does struggle with his academics. She and Paternal Grandmother help. They arranged for a tutor in 1st grade to get Peanut caught up. The tutor was particularly helpful during the Covid pandemic when school was remote. Peanut is starting to catch up now, he's still a little behind, but less so. Peanut has an IEP and he receives extra help. He was recently moved to a different elementary school where he will get more individualized attention.

Ms. E.B. works full-time for UPS. She starts work at 7:30am but is around for the morning routine with Peanut. She gets home around 6:00pm and helps Paternal Grandmother with the evening and bedtime routines. They eat dinner as a family. Peanut likes to tell her about his day, what happened at school, how football went, etc. After dinner, they do homework, sometimes with Paternal Grandmother assisting, sometimes with her assisting, then Peanut takes a bath and goes to bed. She usually works Monday through Friday, but can switch days to accommodate the family's needs, so she is available to care for Peanut if he is sick or has some special need on a weekday.

Ms. E.B. testified that Paternal Grandmother recognized Peanut needed a structured activity. They tried baseball and karate, but Peanut wanted to play football, so Paternal Grandmother signed him up for that instead. If Peanut has a game on Saturday, Mother brings him. He did not miss any games. Peanut also enjoys basketball.

Peanut has asthma and allergies, and uses an inhaler as needed and often before playing football.

In June, 2021, Ms. E.B. took Peanut for a pediatric check-up. Her role was simply to provide transportation for Peanut. Mother was supposed to be present for the appointment. Although Paternal Grandmother would have taken Peanut, it was shortly after Father's death and they were concerned there would be a scene with Mother if Paternal Grandmother was present. At that time, although no one had been arrested yet, she and Paternal Grandmother suspected that Mother's boyfriend, Mr. C. had killed Father. Mr. C. was living with Mother at the time. Ms. E.B. told the doctor's office they were waiting for Mother, but after 20 minutes, Mother had not appeared and the doctor said they had to proceed with the appointment immediately or reschedule. The appointment was scheduled for 1:00pm. Mother did not appear until 2:15pm. She did not apologize for her lateness or speak with Ms. E.B.

At that appointment, Mother changed Peanut's pharmacy to the one near her. That presented problems because now they had to rely on Mother to pick up and deliver medication to them for Peanut. Peanut was on Adderall, an asthma inhaler and prescriptive allergy medication. After that, there were several times when Mother failed to pick up Peanut's medications. There would sometimes be a week or two delay in getting the medications from Mother. The pharmacy [*7]called several times indicating a prescription was ready. Sometimes, Mother would tell her she had picked up the prescriptions, but the pharmacy would tell her they had not yet been picked up. Mother never offered an excuse. Since that time, all prescriptions have been changed to the pharmacy near Paternal Grandmother's home and there are no longer any issues.

The Paternal Grandmother and respondent, R.G. testified. She is the Paternal Grandmother of Peanut. She is 54 years old and in good health. She has been married to Ms. E.B. for 5 years and they are co-parenting Peanut. They live in Niagara Falls, NY. She has owned their home since 2003. It is a single family, 2 story, 3-bedroom, 2 bathroom home. Peanut has his own room. Paternal Grandmother had two children. Peanut's father, now deceased, and a 24-year-old daughter, S.S. S.S. has a daughter, A. who is 6 years old. S.S. and A. live close by. A. spends a few nights per month at Paternal Grandmother's home, usually Sundays to Tuesdays. A. goes to the same school as Peanut. Peanut and A. have a close sibling-like relationship.

Peanut calls her a nickname that is a blended version of grandma and her name.

Peanut came to stay with her in June, 2020 as a result of the black eye incident. Although he was technically living with his father, school was remote at the time due to Covid and Father worked out of the home. Paternal Grandmother was working remotely from home, so she was able to watch Peanut during the day. Paternal Grandmother is a nurse employed by Elderwood Health Plan. She continues to work from home remotely through the present.

After Peanut came to reside with her, Paternal Grandmother observed that he was academically behind, so she arranged for additional educational services for him. In 1st grade, she arranged for an IEP, particularly for help with speech. In his 2nd grade year she noticed ADHD -like behavior and had him evaluated. He was diagnosed with ADHD and received additional services for that, along with medications. In 3rd grade, she requested and received extra help with math and reading. He now has extra help in the classroom and receives additional services for speech and reading. His school was recently changed to provide smaller class sizes and extra adults in the room to assist him. He is acclimating to the new environment and making progress. There has been a definite improvement in his behavior at school since his ADHD diagnosis and treatment.

Peanut still is behind in reading skills. Paternal Grandmother takes Peanut to the library every week where he gets to pick out books to read. Peanut loves the library. Reading is not his strong suit, but he is showing improvements. They read the library books throughout the week. She reads a book to him the first day and he reads it to her the next. It's a daily activity. She is not aware of any reading at Mother's home.

After his father's death, Paternal Grandmother sought counseling for Peanut but had difficulty obtaining it without a custody Order. She asked Mother to help. Mother testified that she called a counseling agency three times, but received no response. Mother did not follow up. Mother testified she did not know why Paternal Grandmother "couldn't just do it herself". Paternal Grandmother eventually was able to arrange for Peanut to receive counseling through Berkshire Farms., which is currently providing six (6) school visits per month and two (2) visits per week at home.

At the time of her testimony, Mother was unaware of whether Peanut was in counseling.

Paternal Grandmother testified that when Peanut was residing with Mother in Kindergarten, he had 12 absences and 39 days tardy that year. That was only through March, 2020 when the Covid pandemic shut the schools. Since residing with her, Peanut has never been late to school and has only missed a few days for illnesses.

Paternal Grandmother testified, and Mother admitted, that she keeps Mother updated about Peanut's IEP, counseling, medications, changes in school, and other significant information concerning Peanut's welfare. Mother admitted that Paternal Grandmother texts her about any concerns raised by Peanut's teachers.

Paternal Grandmother testified that Mother has done nothing to help meet Peanut's needs. Other than the phone call to a counseling agency which was nonproductive, she has taken no actions to help Peanut.

Paternal Grandmother testified, and Mother did not deny, that Mother has not asked her any questions about Peanut's school, progress or health, and she has not asked to help with homework. Mother admitted that she does not ask Paternal Grandmother about Peanut's progress. She has asked Peanut how he is doing in school and has been satisfied by his response.

Paternal Grandmother has very little communication with Mother. She keeps Mother informed of anything that comes up, but Mother does not reach out for information or ask any questions. Paternal Grandmother used to have Tuesdays and Thursdays set up for them to talk, but Mother only called a few times and then stopped, despite the Court Order allowing her such Access, and despite Mother having requested that Access. Initially, Peanut was waiting and disappointed when Mother failed to call. Now, he is not expecting it. It has been over one year without any phone calls from Mother.

Mother admitted that Paternal Grandmother had sent her the name of Peanut's school and teacher, but at the time of her testimony, she could not recall that information. Mother did not know the name of Peanut's teacher, where he went to school or even what grade Peanut was in. She admitted that she had not taken any steps to learn this information.

Ms. D.T. testified that Mother does not inquire of her how Peanut is doing.

Mother admitted that she has not spoken with Paternal Grandmother or Ms. D.T. about Peanut's homework.

Paternal Grandmother testified that her son was shot multiple times and died. Mother never called Paternal Grandmother to express condolences. She did not attend the funeral with Peanut. When discussing issues around getting Peanut's prescriptions filled, Mother told her "Your son being dead is your problem, not mine."

On December 24, 2020, long before Father was killed, Peanut returned from a visit with his Mother singing a song:

"When I say daddy,you say dead!Daddy, dead!Daddy, dead!"

Paternal Grandmother credibly testified that she asked Peanut who taught him that song and Peanut told her "My mom". Paternal Grandmother was chilled and disturbed by the song and instructed him to never sing that song again. Paternal Grandmother credibly testified that she discussed the song with Mother. Mother did not say "I'm sorry", or "That's horrible". Instead, she said "You wish I taught him that". Paternal Grandmother asked her "Are you saying that everyone who heard Peanut singing this is lying?" and Mother said, "that's exactly what I'm saying". Mother denied that Paternal Grandmother ever told her about the "Daddy dead" song, but the Court does not find her denial believable.

At Paternal Grandmother's home, in addition to schoolwork, they play, color, read and do other activities. Peanut plays football, which during the season, is four (4) days per week.

Mother has not paid or offered to pay any child support. She has purchased a few outfits, underwear and socks for him. Mother promised Peanut she would get him a special football helmet, but she never did, so he used the one provided by his coach instead. Mother also promised Peanut a puppet. She did not get it for a protracted time, so Paternal Grandmother bought it. After she purchased it, Mother also got one. Paternal Grandmother has not seen any birthday or Christmas gifts coming from Mother, although Mother testified she had purchased birthday and Christmas gifts for Peanut.

Paternal Grandmother described Peanut as "Happy, cooperative, likes to joke, rarely has a bad day".

Paternal Grandmother has never heard Peanut swear, or seen him throw rocks or do anything inappropriate. Peanut rarely needs discipline. If he's moody or nonresponsive, she might suggest he play in his room or take a nap, and then come out when he's feeling ready, feeling better. That has only happened a couple of times, but on those occasions, he has taken 10-15 minutes, then he's come out and been his usual, happy self.

If awarded custody, Paternal Grandmother plans to co-parent and continue working with Mother. She testified that Peanut loves his mom and she does not want to ruin that relationship, that Peanut needs her. Paternal Grandmother testified she would comply with any court orders and would continue to foster a relationship between Peanut and Mother.

Even though E.C. is Mr. C.'s child, he is Peanut's half-brother and Paternal Grandmother would encourage that relationship. She does not want to see Peanut lose anyone else he cares about.

Paternal Grandmother has facilitated Mother's Access with Peanut even though she believed that Mother was involved in a romantic relationship with the man who killed her son.

Mother admitted that Paternal Grandmother often allows her to keep Peanut longer than the Court's defined times.

Paternal Grandmother testified that Peanut has a good relationship with Ms. D.T., they are close like a family and if she is awarded custody, Paternal Grandmother would continue that relationship.

Paternal Grandmother has kept the same pediatrician as Mother had initially selected for Peanut. Mother did attend Peanut's last annual pediatric check-up.

Before Peanut came to live with them, Paternal Grandmother testified it was difficult to make arrangements to see Peanut. Paternal Grandmother would try to arrange to see her grandson through Mother. Mother would go days without responding. Eventually, a plan would be made but then Mother would change the time or the pick-up location.

Despite the Court's Order that a supervisor be present throughout Mother's Access, including pickups and drop offs, Ms. D.T. credibly testified there is not always a supervisor present, sometimes Mother comes alone. Although Mother denied she was ever without a supervisor, the Court finds her denial self-serving and not credible.

A jail-recorded video of a call between Mr. C. and Mother on February 25, 2023 was entered into evidence. The call occurred on a Saturday during Mother's Access time and Peanut was present during the call. From the Court's observation of the video, it was clear there was no supervisor present with Peanut during the call.

In December, 2021, while this matter was pending, Mr. C. was arrested and charged with the murder of Father He had been residing with Mother when the murder occurred and until his arrest. This Court entered several Orders directing that no third parties be present at Mother's [*8]Access with Peanut, and specifically that Mr. C. not be present with Peanut, nor was he to have any communication with Peanut during her Access.

On February 15, 2023 Mr. C. was convicted of the murder of Father as well as Criminal Possession of a Weapon, 2nd degree. He currently faces a potential sentence of twenty-five (25) years to life.

In addition to the Court's multiple Orders precluding any non-supervisor adults from being present during Mother's Access with Peanut and subsequent Orders and directives to specifically preclude any contact between Mr. C. and Peanut, this Court reminded Mother of those Orders numerous times at various Court proceedings due to complaints lodged by Paternal Grandmother that the Orders were not being obeyed.

Mother allowed Peanut to have contact with Mr. C. on more than one occasion, both before and after his conviction of the murder of Peanut's father.

Paternal Grandmother testified that after the Court's Order prohibiting Mr. C. from being present at Mother's Access, she saw several Facebook posts that included photographs of Mr. C. with Peanut.

Ms. E.B. testified that in August, 2021 after the Court had ordered that Mr. C. not be present during Access periods, Peanut told her that Mr. C. had been around during several recent visits at his Mother's home.

A week after Peanut's disclosure about Mr. C.'s presence at his visits with Mother, Paternal Grandmother and Ms. E.B. drove by Mother's home during her Access period and parked about 150 feet away. Ms. E.B. and Paternal Grandmother both credibly testified that they saw Mr. C. pull up in his Dodge Durango vehicle in front of Mother's home. Ms. E.B. noted the license plate number. They each testified credibly that they saw Peanut running from Mr. C.'s car to Mother's door, that Mr. C. had been driving the vehicle and that Mother was not in the car. Ms. E.B. testified she believed Mother was inside the house. Ms. E.B. then saw Mr. C. pick up E.C. from the car and follow Peanut into Mother's home. They videotaped the event, but were unable to get it started before Peanut entered the home. The video-tape confirms. that contrary to Court Order, Mr. C. was indeed present at Mother's home during her Access time with Peanut and that he entered Mother's home.

Ms. E.B. credibly testified that when they left Mother's home, they were driving on the 190 expressway northbound and noticed they were being aggressively tailgated. The other vehicle was close to their car; when they switched lanes, so did the other vehicle. It made them quite scared. Ms. E.B. was able to see that Mr. C. was driving the car that was tailgating them. It was the same Dodge Durango she had just seen at Mother's home and she was able to verify it was the same license plate number.

Ms. B.W., a Buffalo Police Department report technician testified that on August 21, 2021, Mother came to report that Paternal Grandmother had come to her home and watched as Mother's child played outside. Mother filed a report and appeared in Buffalo City Court once. Mother did not seem to know what happened to that case. Paternal Grandmother testified it had been dismissed. Paternal Grandmother explained that the charges Mother filed against her for being near her home regarded August 7, 2021, but she was not there that day. Mother alleged that Paternal Grandmother had screamed at Mother that she would kill her as her son had been killed. However, Paternal Grandmother credibly testified that she never screamed at Mother on any occasion. She believed Mr. C. lived with Mother and she was afraid of him, so she would not have done anything to arouse Mr. C.'s anger. Even before his arrest, she believed he had [*9]killed her son. As a result, she never would have threatened anything as her safety would be jeopardized.

Ms. M.G. testified. She is an acquaintance of Paternal Grandmother. On December 10, 2022 at approximately 8:00pm, she had gone into a Speedway to get a drink and saw Peanut coming out of the store with a man and another little boy. She did not know the man or the other boy. Peanut came up to her and hugged her. Then she watched as Peanut got into a car with the man and the other little boy. Because she did not know the man, she looked intently to see who was with Peanut. No one else was in the car with them. The parking lot was well lit and she could see inside the car. There was no woman or other adult with them. She texted Paternal Grandmother that she had just seen Peanut.

Mother admitted that in derogation of the Court's Orders, she allowed Peanut to speak with Mr. C. on the phone, while he was in jail, having been arrested for Peanut's father's murder. Mother voiced no concerns about this contact and did not appear remorseful.

The February 25, 2023 jail-recorded video call between Mr. C. and Mother occurred after Mr. C.'s conviction of Father's murder and one day after this Court again instructed there to be no contact between Peanut and Mr. C. During that call, Mother acknowledged that Mr. C. was not to have contact with Peanut, yet she allowed Peanut to come into the room that was visible to Mr. C. on the video on multiple occasions, allowed Mr. C. and Peanut to see each other and permitted Mr. C. to speak with Peanut. She and Mr. C. even joked that he was not supposed to speak with Peanut. Mother made no attempts to keep Peanut from seeing Mr. C. nor did she appear concerned that he was present during the call.

Mother testified that Mr. C. was a kind and loving step-father for Peanut. At the time of Mother's testimony, Mr. C. had been arrested and charged with the murder of Peanut's father though not yet convicted, and had a criminal history including three prior felony convictions. Mother testified that Mr. C.'s criminal history did not change her opinion that Mr. C. was a "phenomenal father figure" for Peanut. Mother testified that her father was a felon but he was still a great father, that great fathers can make poor decisions. If Mr. C. was not in jail, Mother testified he would be around Peanut.

Paternal Grandmother testified that Mother had told her and the police that on the night of the murder, Mr. C. had been with her all night. Text messages in evidence show that Mother told Paternal Grandmother she and Mr. C. had been at his Mother's that night along with baby E. C.. At Trial, Mother testified that Mr. C. had been at her home, that he was present with her when she fell asleep and when she woke up. Paternal Grandmother credibly testified that she had been present in the Criminal Court when Mr. C. indicated his position at trial was that he had not been with Mother that night; he admitted that he had been present at the scene of the murder although he had not been the one to pull the trigger.

Mr. C.'s murder trial was occurring during the same week as the last few days of Trial in the instant matter. He was ultimately convicted and is awaiting sentencing.

Paternal Grandmother is concerned that Mother might take Peanut out of the area and disappear. Mother has stated she wants to leave Western New York. In the recorded call with Mr. C., Mother told Mr. C., "I might be gone, I'm not going to risk staying here."

At the In camera, Peanut presented as a likeable, age-appropriate boy who expressed a strong point of view. However, it appeared by his repeated exclamations that he had been coached by his Mother despite a Court Order and direction from this Court not to discuss the litigation with him.

In his Summation, the Attorney for the Child advocated for Peanut to be returned to the care of Mother with Access to Paternal Grandmother.

CONCLUSIONS OF LAW

Due to the tragic demise of Father, Paternal Grandmother has standing to Petition the Court seeking custody of Peanut. DRL72; FCA 651. While Custody is based on the best interests of the child, for a grandparent to be successful, he or she must first demonstrate the existence of extraordinary circumstances before the Court may examine the best interests of the child. DRL 72. There is no denial that between a parent and a non-parent, even a grandparent, the parent has a superior right. Absent a showing of surrender, abandonment, persistent neglect, unfitness, extended disruption of custody or other like extraordinary circumstances, a parent's claim to custody is superior to that of all others. Bennett vs Jeffries, 40 NY2d 543 (1976). The grandparent seeking Custody bears the burden of showing the existence of such extraordinary circumstances. Orlowski v Zack, 147 AD3d 1445 (4th Dept., 2017)

The extraordinary circumstances threshold can be met when there has been an extended disruption of custody. Here, although Mother had a pending Custody Petition, she consented to Peanut residing with Paternal Grandmother on April 7, 2021 and Peanut has continuously resided with his grandmother for the last two and one-half (2 ½) years through the present date. He has a good, loving and close relationship with Paternal Grandmother and is thriving in her care. See, e.g., Peters v Dugan, 34 NYS3d 741 (3d Dept 2016) The "extraordinary circumstances" burden has been met under this standard. However, additional extraordinary circumstances also exist in this case.

Persistent neglect, unfitness or other like extraordinary circumstances such as the fault or omission by the parent seriously affecting the welfare of the child, also meet the threshold. This extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case. Shanna O. v James P., 176 AD3d 1334 (3rd Dept., 2019). For example, while frequent moves and ill-advised romantic interludes are not by themselves sufficient to render the Mother an unfit parent, where the child was exposed to substance use and domestic violence as a result of those romantic relationships, the Mother allowed one of her companions to babysit the child despite being a registered sex offender, the Mother took no steps to address the child's delayed speech leaving it to the grandmother to do so, and had no knowledge about the basics of the child's day care provider, extraordinary circumstances were found. Perry v Perry, 160 AD3d 1392 (3rd Dept., 2018). Examples of behaviors that may in the aggregate rise to the level of extraordinary circumstances include allowing the children to live in squalor, failing to address serious substance abuse or mental health issues, instability in the parent's housing or employment situation, use of corporeal punishment or other similar behaviors that reflect the parent's overall pattern of placing her own interest and personal relationships ahead of the child. Darrow v Darrow, 106 AD3d 1388 (3d Dept., 2013). A lack of insight into how a parent's negative behaviors could or did affect a child has also been held to constitute extraordinary circumstances. Perry v Perry, supra; In re Kaylub T., 150 AD3d 862 (2d Dept., 2017).

Here, a number of factors, taken in the aggregate, rise to the level of unfitness and possibly, persistent neglect. Mother took no steps to address Peanut's ADHD despite a recommendation for testing from his teacher while he remained in Mother's care. She then abdicated any responsibility for following up on the assessment once he came to live with his [*10]father and then his grandmother.

Since Peanut came into Paternal Grandmother's care, Mother has failed to involve herself in his education. Despite having been provided educational information by Paternal Grandmother, Mother did not know the name of Peanut's school or his teacher. She did not even know what grade he was in. Although Paternal Grandmother kept Mother apprised of Peanut's ADHD testing, diagnosis, IEP and academic struggles, Mother has not reached out to the school, nor has she asked Paternal Grandmother or D.T. any questions about Peanut's progress. Instead, she has simply asked Peanut how he is doing in school and has been satisfied by his response.

While Peanut is progressing in school, he is still behind in reading. Paternal Grandmother has created a path for Peanut to evolve this most important skill by taking him to the library weekly and reading with him daily. Mother shared no plan for Peanut's reading skill development and Paternal Grandmother was not aware of any reading occurring at Mother's home.

Mother has failed to address Peanut's emotional needs. After the death of Father, Paternal Grandmother recognized Peanut's need for grief counselling and reached out to Mother for assistance in obtaining it. Mother made a couple of phone calls, but when she received no response, she took no further action. By contrast, Paternal Grandmother did follow up, and despite the barrier of not having a custody Order, eventually was able to secure counselling for Peanut. On the witness stand, Mother did not appear to recognize the effect the death of his father had on Peanut or the importance of securing counseling for him. In fact, Mother presented as though the tragic death of his father was irrelevant. She did not attend the funeral to support Peanut through that difficult time nor has she even discussed the loss with him.

Excessive corporeal punishment is a factor to be considered. There was much testimony about the bruise to Peanut's eye. Mother and Ms. V. St. both testified that Mother was in the bathroom when Peanut ran around the home and fell. However, Peanut disclosed to E.B. and D.T. that his Mother hit him, and responded to Paternal Grandmother's question about who hit him "not my mom". While hearsay statements may not generally be considered by a Court, where a child's out-of-court statements concern allegations of neglect or abuse and are sufficiently corroborated, they are admissible and may be considered by the Court, even in custody matters. See, e.g., Sutton v Sutton, 74 AD3d 1838 (4th Dept., 2010); Mateo v Tuttle, 26 AD3d 731 (4th Dept., 2006). Here, there is sufficient corroboration. Peanut made similar statements to multiple people on multiple occasions. The photographs appear consistent with a punch in the face. On the night in question, Mother called Father after the injury, a curious thing if it was indeed an accident and the bruising did not look significant. She also took off work the following day to be home with Peanut, also curious if it was a simple accident. D.T. credibly testified that Mother admitted to her that she hit Peanut when, after several hours of working on "had" and "has", Peanut continued to confuse the words. Child Protective Services investigated and indicated against Mother, although that ruling was later overturned. This Court finds that Peanut was indeed hit by his Mother as a form of excessive corporeal punishment. See, e.g., Matter of Charles v Moreno, 741 NYS 2d 255 (2d Dept., 2022) (Excessive corporeal punishment combined with a lack of child-rearing judgment that placed the child in serious jeopardy was sufficient to find extraordinary circumstances warranting granting the grandmother custody over the parent.)

Mother's parenting judgment is poor. Peanut's father was murdered by Mr. C., who at the time of the murder, was Mother's live-in boyfriend, a man she has held out as a stepfather to [*11]Peanut. Even after Mr. C. was arrested and convicted of the murder, Mother continues to consider him a "phenomenal father figure" for Peanut. Despite numerous Court Orders prohibiting contact between Peanut and Mr. C., reminders of those Court Orders and repeated directions to follow the Court Orders, Mother repeatedly and blatantly violated the Orders by continuing to provide contact between Peanut and his father's murderer and has gone so far as to actually nurture their relationship. Peanut told Paternal Grandmother there had been multiple physical and telephonic contacts with Mr. C.. Credible testimony about Facebook posts confirm those contacts. Paternal Grandmother and E.B. credibly relayed a scene they witnessed in August, 2021 wherein Mother allowed Mr. C. to take Peanut out of the home. Even more incredulously, after Mr. C.'s conviction, and again, more Court directions and Orders restricting contact between Mr. C. and Peanut, and a day after a Court appearance wherein this Court had again directed there to be no contact between Mr. C. and Peanut, Mother allowed extensive contact on a recorded jail video call. Mother indicated that if Mr. C. was not in jail, she would allow him to be around Peanut. Mother's choice to nurture a relationship between Peanut and Mr. C. reflects an overall pattern of placing her own interests and personal relationships ahead of the needs of her child. Durgala v Batrony, 154 AD3d 1115 (3rd Dept., 2017). While Peanut may be too young to comprehend what has happened, he will eventually recognize what Mr. C. has done and come to appreciate that his childhood was robbed of an opportunity to be parented by his father. See, Wilson v WilliaMs., 42 NC App 348 (North Carolina, 1979) (surviving parent's continued relationship with the man who killed the child's father was a substantial enough reason to give the non-parent custody of the child because the child would be adversely affected by being placed with the Mother given that she was still involved with the murderer of his father). Mother's complete denial of the impact Mr. C.'s murder of Father has had or will have on Peanut's emotional, mental and social well-being indicates a marked indifference to her parental responsibilities, and her continued efforts to nurture a relationship between Peanut and Mr. C. evinces an utter lack of insight into how her behaviors negatively affect her son. See, Perry v Perry, supra; In re Kaylub, supra.

In addition to violating the Court Orders prohibiting contact between Peanut and Mr. C., Mother has repeatedly violated the Orders requiring her Access to be supervised. She has picked Peanut up and dropped him off without a supervisor. There was no supervisor in her home during the jail call with Mr. C. on February 25, 2023. Mother has demonstrated her intent to do whatever she wants to do despite Court Orders.

In contrast, Paternal Grandmother has followed this Court's Orders including by providing Access to Mother as directed. Paternal Grandmother believably testified that she recognizes that Peanut needs a good relationship with his mom, that he already has lost his father and would suffer greatly any additional loss. Paternal Grandmother sang a bone-chilling "Daddy dead" song that Peanut came home singing months before Father's murder and which Peanut said his Mother had taught him. Despite believing that Mother was involved in the murder of her son, Paternal Grandmother has prioritized Peanut's needs above her own by encouraging his relationship with Mother and shielding him from her suspicions.

Mother's utter disregard for Court Orders requiring supervision of her Access as well as precluding contact between Peanut and Mr. C., combined with a significant lack of parental judgment, including repeated exposure to Peanut's father's murderer and efforts to nurture that relationship without recognition of the future affect that will have on Peanut, excessive corporeal punishment, failure to recognize Peanut's need for counseling or take steps to arrange for such [*12]counseling, and failure to involve herself in Peanut's education taken together, make Mother an unfit and neglectful parent.

The Court next must consider the best interests of Peanut. For the reasons expressed above, Mother is not capable of meeting Peanut's educational, emotional or developmental needs.

Peanut is well cared for in Paternal Grandmother's care. He is fed, bathed, and clothed appropriately. He attends school regularly and Paternal Grandmother is in regular contact with Peanut's school. She was the one who arranged for educational testing and pursued an ADHD diagnosis as well as an IEP. She and E.B. provide additional educational support by taking Peanut to the library and reading with him nightly, they have taken him for his medical appointments, and he is up to date in his health care. Paternal Grandmother recognized Peanut's need for grief counseling and made considerable effort to obtain it for him. Paternal Grandmother continues to foster a good relationship with Peanut's Mother, despite her suspicion that Mother might have been involved with the murder of her son, because she places Peanut's needs above her own and recognizes the importance of that relationship to Peanut. Paternal Grandmother has provided educational and medical information to Mother in an appropriate and respectful manner. Paternal Grandmother also recognizes Peanut's strong attachments to Ms. D.T. and her family, and although Ms.D.T. has no standing to pursue Access, Paternal Grandmother intends to continue Peanut's visits at her home. Paternal Grandmother has followed all Court Orders. Paternal Grandmother is an appropriate custodian of Peanut and it is in his best interests to reside with her.

There is no dispute that Peanut has a strong bond with his mother. Mother has consistently exercised her in-person Access, although she has failed to exercise her electronic Access despite requesting it. There have been no allegations of excessive corporeal punishment, bruising or marks since June, 2020.

Mother has repeatedly violated Court Orders concerning her Access including by failing to have supervisors present during her Access, and repeatedly exposing Peanut to Mr. C. Further, she has threatened to leave the jurisdiction. Since she wants Peanut to reside with her, one may presume she would take Peanut with her. As a result, Mother must have agency-supervised Access.

The Attorney for the Child brought a Family Offense Petition to replace Father's Petition when he was killed. In order to prevail, it must be demonstrated by a fair preponderance of the evidence that a family offense was committed. FCA 832. Mother and Ms. V. St. testified that Mother had been in the bathroom when the injury occurred and that she did not hit Peanut. However, Peanut told both E.B. and D.T. that his Mother hit him in the face. When Paternal Grandmother asked him if someone hit him in the face, Peanut quickly and suspiciously responded "not my mom". Pictures of the Peanut's face taken after the injury show a circular bruise, consistent with a fist hitting his eye area. Although Mother and her Mother testified that Peanut had lied in the past in other matters, such testimony was self-serving and did not prove that Peanut lied about this event. Mother's actions following the event are suspicious and indicate an intent to cover up her hitting Peanut, including calling Father the night of the injury and staying home the following day with Peanut. While the Child Protective Services report was reversed and determined unfounded, this Court finds sufficient proof that a family offense was committed by Mother striking Peanut in the face. Although there have been no further allegations of excessive corporeal punishment or family offenses since June, 2020, Mother has [*13]had limited time with Peanut and Court matters have been pending throughout. Under the circumstances, a stay away Order of Protection should be issued for the next 12 months with a carve-out for agency supervised Access.

NOW, THEREFORE, it is hereby

ORDERED, that Paternal Grandmother shall have Sole Custody of the child, Peanut; and it is further

ORDERED, that Mother shall have up to two (2) hours weekly Access supervised by an agency such as Catholic Charities or similar agency at her cost and expense; and it is further

ORDERED, that Mother's Access is immediately suspended until such time as agency supervised Access is established; and it is further

ORDERED, that Mother may have independent Access to Peanut's health, education and welfare records and providers; and it is further

ORDERED, that a stay away Order of Protection in favor of Peanut against Mother shall be issued for a term of one (1) year with a carve-out for agency supervised Access.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

May 22, 2023

__________________________________________

Hon. Brenda M. Freedman, JFC

GRANTED: