Opinion
2013-03-21
In re RUTH L., Petitioner–Respondent, v. CLEMESE THERESA J., Respondent–Appellant.
Israel P. Inyama, New York, for appellant. Leslie S. Lowenstein, Woodmere, for respondent.
Israel P. Inyama, New York, for appellant.Leslie S. Lowenstein, Woodmere, for respondent.
Karen P. Simmons, The Children's Law Center, Brooklyn (Susan M. Cordaro of counsel), attorney for the child.
, J.P., MAZZARELLI, SAXE, MOSKOWITZ, MANZANET–DANIELS, JJ.
Order, Family Court, Bronx County (Myrna Martinez–Perez, J.), entered on or about June 27, 2011, which, inter alia, granted custody of the subject child to petitioner paternal grandmother, unanimously affirmed, without costs.
We reject respondent mother's argument that the court did not have jurisdiction over this custody proceeding because New York is not the child's home state. The child lived in New York continuously with his mother, his father and his paternal grandmother from the age of about two weeks until he was almost six months old. Contrary to respondent's contention, his absence from New York, brought about by respondent's desire to prevent the father or petitioner from obtaining custody, was “a temporary absence which did not interrupt the six-month pre-petition residency required by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act, Domestic Relations Law art. 5–A]” ( see Matter of Felty v. Felty, 66 A.D.3d 64, 69, 882 N.Y.S.2d 504 [2d Dept. 2009];Matter of Krymko v. Krymko, 32 A.D.3d 941, 822 N.Y.S.2d 570 [2d Dept. 2006];Domestic Relations Law § 75–a[7] ).
The evidence establishes extraordinary circumstances that justify the award of custody to petitioner ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). This evidence includes respondent's extensive history of neglect and abuse of her nine previous children, which resulted in the death of one child who was left unattended in a bathtub and the termination of her parental rights as to all the others ( see e.g. Matter of Harold EE. v. Roger EE., 17 A.D.3d 730, 731 n. 1, 792 N.Y.S.2d 680 [3d Dept. 2005];see also Matter of Reed v. Crim, 202 A.D.2d 1018, 609 N.Y.S.2d 477 [4th Dept. 1994] ). Respondent also has an extensive history of drug abuse, addiction, and criminal activity ( see Matter of Benzon v. Sosa, 244 A.D.2d 659, 663 N.Y.S.2d 938 [3d Dept. 1997] ), as well as mental illness for which she has refused to engage in treatment or take prescribed medication ( see Matter of Vann v. Herson, 2 A.D.3d 910, 912–913, 768 N.Y.S.2d 44 [3d Dept. 2003] ). Moreover, respondent's living situation continues to be unstable ( see Matter of North v. Yeagley, 96 A.D.3d 949, 946 N.Y.S.2d 508 [2d Dept. 2012] ), and she has failed to plan for the child's return ( see Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 670 N.Y.S.2d 270 [4th Dept. 1998] ).
The court's determination that awarding custody to petitioner is in the child's best interests is supported by the evidence that petitioner has supported the child, given structure to his life, and provided a stable and loving home, where he is thriving ( see e.g. Matter of Brenda J. v. Nicole M., 59 A.D.3d 299, 873 N.Y.S.2d 304 [1st Dept. 2009] ). Indeed, the forensic evaluator concluded that removing the child from his grandmother's care would have disastrous consequences.
Respondent failed to preserve her objection to the court's consideration of the forensic evaluator's report ( see Matter of Hezekiah L. v. Pamela A.L., 92 A.D.3d 506, 938 N.Y.S.2d 87 [1st Dept. 2012] ).
We have considered respondent's remaining arguments and find them unavailing.