Opinion
2019–07129 Docket No. G–22424–18
05-13-2020
In the MATTER OF MAIYASHA J.M. (Anonymous). Sherryann Z. (Anonymous), petitioner-respondent; Asheena P. (Anonymous), appellant, Administration for Children's Services, respondent-respondent, et al., respondent.
Barbara J. Caravello, Jamaica, NY, for appellant. John R. Eyerman, New York, NY, for petitioner-respondent. James E. Johnson, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Julia Bedell of counsel), for respondent-respondent. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Patricia Colella of counsel), attorney for the child.
Barbara J. Caravello, Jamaica, NY, for appellant.
John R. Eyerman, New York, NY, for petitioner-respondent.
James E. Johnson, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Julia Bedell of counsel), for respondent-respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Patricia Colella of counsel), attorney for the child.
REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Diane Constanzo, J.), dated May 22, 2019. The order, after a hearing, in effect, granted the petition of the maternal grandmother to be appointed the guardian of the subject child.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner in this guardianship proceeding is the maternal grandmother of the subject child, who was born in 2006. In January 2012, the child was removed from the mother in a child protective proceeding after the mother failed to enforce an order of protection against the father, who had previously sexually abused the child. The child began living with the maternal grandmother upon her removal from the mother. In May 2012, the Family Court determined that the mother neglected the child, and placed the child in the custody of the Commissioner of Social Services of the City of New York to reside with the maternal grandmother. In 2018, the maternal grandmother filed a petition to be appointed the guardian of the child. By order dated May 22, 2019, the court, in effect, granted the maternal grandmother's petition. The mother appeals.
" ‘In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness or other extraordinary circumstances’ " ( Matter of Maddox v. Maddox, 141 A.D.3d 529, 529, 35 N.Y.S.3d 264, quoting Matter of Bailey v. Carr, 125 A.D.3d 853, 853, 4 N.Y.S.3d 121 ; see Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546–548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). A nonparent must demonstrate the existence of extraordinary circumstances in order to establish his or her standing to seek custody of the subject child against a parent (see Matter of Suarez v. Williams, 26 N.Y.3d at 448, 23 N.Y.S.3d 617, 44 N.E.3d 915; Matter of Maddox v. Maddox, 141 A.D.3d at 529, 35 N.Y.S.3d 264 ; Matter of Jamison v. Britton, 141 A.D.3d 522, 524, 35 N.Y.S.3d 256 ; Matter of Santiago v. Henderson, 122 A.D.3d 866, 866, 996 N.Y.S.2d 686 ). " ‘Only if the nonparent meets this burden does the court determine whether the best interests of the child warrant awarding custody to the nonparent’ " (Matter of Williams v. Frank, 148 A.D.3d 815, 816, 49 N.Y.S.3d 703, quoting Matter of Herrera v. Vallejo, 107 A.D.3d 714, 715, 966 N.Y.S.2d 206 ; see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277).
Here, we agree with the Family Court's determination that the maternal grandmother established extraordinary circumstances. The mother's neglect of the child, the mother's failure to enforce an order of protection against the child's sexual abuser, and the more than seven-year disruption of the mother's custody of the child constituted extraordinary circumstances (see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 546, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Gunther v. Brown, 148 A.D.3d 889, 890, 49 N.Y.S.3d 178 ). Additionally, the court's determination that an award of guardianship to the maternal grandmother was in the child's best interests is supported by a sound and substantial basis in the record, and we decline to disturb it (see Matter of Llada v. Ellington, 164 A.D.3d 793, 794, 83 N.Y.S.3d 153 ; Harris v. Harris, 112 A.D.3d 887, 978 N.Y.S.2d 294 ).
Accordingly, we agree with the Family Court's determination, in effect, to grant the maternal grandmother's petition.
RIVERA, J.P., LASALLE, BARROS and IANNACCI, JJ., concur.