Opinion
Nos. 2021-06851 2021-06853 2021-06854 2021-06855 2021-06856 Docket Nos. G-29859-12 V-32565-12 G-6020-13 V-5242-16 V-5243-16 V-4827-20 V-4874-20 V-4875-20 V-4877-20
05-22-2024
In the Matter of Teofilo R. F. (Anonymous), et al., respondents, v. Tanairi R. F. (Anonymous), appellant.
Anna Stern, Brooklyn, NY, for appellant. Christine Theodore, Spring Valley, NY, for respondent Maria R. Teofilo R. F., Brooklyn, NY, respondent pro se (no brief filed). Allan D. Shaffer, Port Washington, NY, attorney for the children Blessin F. and Frank T., Jr. Eric Perlmutter, Jamaica, NY, attorney for the child Keleill F. (no brief filed).
Anna Stern, Brooklyn, NY, for appellant.
Christine Theodore, Spring Valley, NY, for respondent Maria R.
Teofilo R. F., Brooklyn, NY, respondent pro se (no brief filed).
Allan D. Shaffer, Port Washington, NY, attorney for the children Blessin F. and Frank T., Jr.
Eric Perlmutter, Jamaica, NY, attorney for the child Keleill F. (no brief filed).
FRANCESCA E. CONNOLLY, J.P. VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER JANICE A. TAYLOR, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the mother appeals from five orders of the Family Court, Kings County (Robert D. Mulroy, J.), all dated March 19, 2021. The first order, insofar as appealed from, upon a decision of the same court dated March 18, 2021, made after a hearing, granted the petitions of the maternal grandmother and the maternal uncle to appoint the maternal grandmother and the maternal uncle as guardians of the child Blessin F., and directed that the mother's parental access with the children Blessin F. and Frank T., Jr., take place in New York. The second order, upon the decision, denied the mother's motion to modify an order of the same court dated May 8, 2018, so as to award her unsupervised parental access with the children Keith F., Keleill F., Blessin F., and Frank T., Jr. The third order, insofar as appealed from, upon the decision, dismissed those branches of the mother's petition which were for custody of the children Blessin F. and Frank T., Jr. The fourth order, upon the decision, denied the mother's motion for leave to renew her opposition to that branch of a prior motion of the maternal grandmother which was, in effect, for return of the child Keleill F. to the care and custody of the maternal grandmother, which had been granted in an order of the same court dated January 12, 2021. The fifth order, insofar as appealed from, upon the decision, granted the petition of the maternal grandmother for custody of the child Frank T., Jr., awarded the maternal grandmother and the maternal uncle joint physical and legal custody of that child, and directed that the mother's parental access with the children Blessin F. and Frank T., Jr., take place in New York.
ORDERED that the first order dated March 19, 2021, is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the petitions of the maternal grandmother and the maternal uncle to appoint the maternal grandmother and the maternal uncle as guardians of the child Blessin F. are denied; and it is further, ORDERED that the appeal from the second order dated March 19, 2021, is dismissed as academic, without costs or disbursements; and it is further, ORDERED that the third order dated March 19, 2021, is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and those branches of the mother's petition which were for custody of the children Blessin F. and Frank T., Jr., are granted; and it is further, ORDERED that the appeal from the fourth order dated March 19, 2021, is dismissed as academic, without costs or disbursements; and it is further, ORDERED that the fifth order dated March 19, 2021, is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the petition of the maternal grandmother for custody of the child Frank T., Jr., is denied.
In October 2012, the mother, who resided in Georgia, was arrested for driving with a suspended driver license and thereafter incarcerated. As a result, the mother requested that the maternal grandmother and the maternal uncle, who resided in Brooklyn, be given temporary custody of the child Blessin F., who was born in 2010, as well as two of her other children, Keith F. and Keleill F., born in 2007 and 2008, respectively, until her release from jail so that they would not be placed in foster care. In an order dated October 8, 2012, the Juvenile Court in Georgia placed Keith F., Keleill F., and Blessin F. in the maternal grandmother's temporary custody pending further orders in New York (hereinafter the Georgia order). The Georgia order was to remain in effect until an order was entered in New York. Thereafter, the father of the child Frank T., Jr., requested that the maternal grandmother and the maternal uncle also take Frank T., Jr., to Brooklyn to care for him while the mother was incarcerated.
On October 16, 2012, the maternal grandmother filed a petition in the Family Court, Kings County, for guardianship of Blessin F. In November 2012, after her release from jail, the mother contacted the maternal grandmother with regard to returning the children to her care and custody. The maternal grandmother told the mother that she would have to go to court for the return of the children. The mother traveled to New York to pick up Frank T., Jr., who was not a subject of the Georgia order. The next day, the maternal grandmother filed a petition for custody of Frank T., Jr., in the Family Court and denied the mother's request to return Frank T., Jr., to the mother's care and custody. In February 2013, the maternal uncle filed a petition for guardianship of Blessin F. The court, inter alia, issued temporary orders appointing the maternal grandmother as the guardian of Blessin F. and awarding custody of Frank T., Jr., to the maternal grandmother. The mother's motion to vacate the temporary orders was denied. The mother filed a petition, among other things, for custody of Blessin F. and Frank T., Jr.
A hearing on the parties' respective petitions commenced in 2014 and did not conclude until 2021. During the proceedings, Blessin F. and Frank T., Jr., continued to reside with the maternal grandmother and the maternal uncle pursuant to the Family Court's temporary orders. The mother resided in Georgia and had supervised and unsupervised parental access with Blessin F. and Frank T., Jr., in Brooklyn. After the conclusion of the hearing, in five orders, all dated March 19, 2023, the court, inter alia, determined that extraordinary circumstances existed to confer standing on the maternal grandmother and the maternal uncle to seek guardianship and custody of Blessin F. and Frank T., Jr., appointed the maternal grandmother and the maternal uncle as guardians of Blessin F., awarded the maternal grandmother and the maternal uncle joint physical and legal custody of Frank T., Jr., and directed that the mother's parental access with Blessin F. and Frank T., Jr., take place in Brooklyn on the first two Saturdays of each month. The mother appeals.
"On appeal, we accord great deference to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor. However, in custody matters, this Court's authority is as broad as that of the hearing court, and this Court will not uphold the hearing court's determination where it lacks a sound and substantial basis in the record" (Matter of Weinberger v Monroe, 120 A.D.3d 583, 584 [citation omitted]; see Matter of Hyde v King, 47 A.D.3d 813, 814).
Here, the Family Court's determination that the maternal grandmother and the maternal uncle sustained their burden of demonstrating the existence of extraordinary circumstances is not supported by a sound and substantial basis in the record (see Domestic Relations Law § 72; Matter of Jamison v Britton, 141 A.D.3d 522, 524). "As between a parent and a nonparent, the parent has the 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 like extraordinary circumstances" (Matter of Kaylub T. [Erik C.-Mandy C.], 150 A.D.3d 862, 862 [internal quotation marks omitted]; see Matter of Jamison v Britton, 141 A.D.3d at 524). In determining whether extraordinary circumstances exist, the court considers various factors, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship, and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role (see Matter of Madelyn E.P. [Christine L.-B.-Kevin O.], 196 A.D.3d 489, 490). In addition, Domestic Relations Law § 72(2)(a) specifically provides that an "extended disruption of custody" shall constitute an extraordinary circumstance for the purposes of a grandparent's standing in custody proceedings involving a grandchild. "An extended disruption of custody includes a prolonged separation between a parent and a child for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of a grandparent" (Matter of Sellers v Brown, 155 A.D.3d 1047, 1048; see Domestic Relations Law § 72[2][b]). "The burden of proof is on the nonparent to prove such extraordinary circumstances" (Matter of Rudy v Mazzetti, 5 A.D.3d 777, 778).
Here, the record does not support the Family Court's determination that extraordinary circumstances existed so as to confer standing on the maternal grandmother and the maternal uncle to seek guardianship and custody of Blessin F. and Frank T., Jr. The evidence failed to establish that the mother voluntarily relinquished care and control of Blessin F. and Frank T., Jr., for an extended period of time (see Matter of Sellers v Brown, 155 A.D.3d at 1048-1049). Rather, the record evidences that the mother's intention was for Blessin F. and Frank T., Jr., to reside with the maternal grandmother and the maternal uncle only temporarily during her brief period of incarceration so as to prevent them from being placed in foster care, and that the children would be returned to the mother's care and custody as soon as she was released. The hearing testimony demonstrates that from the time the mother was released from her brief period of incarceration in November 2012, she has continued to attempt to regain custody of Blessin F. and Frank T., Jr., she immediately went to Brooklyn when she was released, she made a motion to vacate the temporary orders of guardianship and custody, and she filed a petition, inter alia, for custody of Blessin F. and Frank T., Jr. Moreover, during the proceedings, the mother continued to have supervised and unsupervised parental access with Blessin F. and Frank T., Jr., as permitted by the court, in Brooklyn, although she was still residing in Georgia with her other young children. Additionally, the prolonged separation between the mother and Blessin F. and Frank T., Jr., occurred during the mother's attempts to regain custody during these protracted proceedings, and, thus, the extended disruption of custody does not amount to an extraordinary circumstance (see Matter of Jamison v Britton, 141 A.D.3d at 524). When the maternal grandmother and the maternal uncle first filed petitions for guardianship and custody between October 2012 and February 2013, Blessin F. and Frank T., Jr., had only been residing with them for, at most, a few months; however, the hearing, which commenced in May 2014, did not conclude until March 2021, almost seven years later. "'Indeed, the courts may not deny the natural parent's persistent demands for custody simply because it took so long'" (id., quoting Matter of Male Infant L., 61 N.Y.2d 420, 429).
Additionally, the record fails to demonstrate that the mother abandoned or permanently neglected Blessin F. or Frank T, Jr., or that any of the mother's "shortcomings rise[ ] to the level of unfitness, persistent neglect or other rare circumstance" sufficient to permit an award of custody and guardianship to the maternal grandmother and the maternal uncle, "and while the [maternal grandmother and the maternal uncle] may be capable of doing a better job of raising the children, that is not the test" (Matter of Ramos v Ramos, 75 A.D.3d 1008, 1012 [internal quotation marks omitted]; see Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 548-549; Matter of Seltzer v Patterson, 193 A.D.3d 1057, 1059). Moreover, while the Family Court cited to the mother's mental health issues in determining that extraordinary circumstances existed, as noted by the court, when the mother was diagnosed with bipolar disorder in 2012, she was prescribed medication and was compliant therewith. Significantly, the record demonstrates that a court-ordered psychiatric evaluation dated January 22, 2014, concluded that the mother did not have a psychiatric diagnosis, "except for [l]ife [c]ircumstance [p]roblems," and that the mother was able to take care of her children and was competent to have them returned to her. Another court-ordered psychiatric evaluation dated February 28, 2017, concluded that there was no evidence that the mother currently had bipolar disorder or that she required psychotropic medication.
In light of the absence of extraordinary circumstances, an inquiry into the best interests of Blessin F. and Frank T., Jr., is not triggered (see Matter of Bennett v Jeffreys, 40 N.Y.2d at 548; Matter of Hyde v King, 47 A.D.3d at 815; Matter of Esposito v Shannon, 32 A.D.3d 471, 473). Nevertheless, even if extraordinary circumstances were present here, we would conclude that the best interests of Blessin F. and Frank T., Jr., require that custody be awarded to the mother.
"In determining an issue of custody, '[t]he court must look at the totality of circumstances, and consider, inter alia, the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent'" (Matter of Esposito v Shannon, 32 A.D.3d at 473, quoting Zafran v Zafran, 306 A.D.2d 468, 469 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 N.Y.2d 167, 171). Moreover, "[t]he wishes of the child are not controlling but are entitled to great weight where the child's age and maturity would make the child's input particularly meaningful" (Matter of Maxwell v Watt, 152 A.D.3d 693, 693; see Matter of Coull v Rottman, 131 A.D.3d 964, 964).
Here, there is a sound and substantial basis in the record to award custody of Blessin F. and Frank T., Jr., to the mother. The mother is now married to the biological father of Frank T. Jr., has stable employment, is residing in a three-bedroom home, has taken positive steps regarding her mental health, has completed parenting skills and anger management programs, and is raising her three other children born after these proceedings commenced without the involvement of child protective services. The 2014 and 2017 court-ordered psychiatric evaluations provided evidence of the mother's positive parenting skills. Although the Family Court did not conduct an in camera interview with Blessin F. and Frank T., Jr., who by the conclusion of the hearing were 10½ and almost 9 years old, respectively, the court did acknowledge their wishes to be in the custody of the mother. Additionally, at the time of the court's decision in March 2021, the two oldest children, Keith F. and Keleill F., who had also been the subjects of temporary orders of custody and guardianship, had voluntarily left the homes of the maternal grandmother and the maternal uncle and were residing with the mother in Georgia. The maternal grandmother's petition for guardianship of Keith F. was withdrawn during these proceedings, and the court ultimately awarded custody of Keleill F. to the mother.
Contrary to the contention of the attorney for the children Blessin F. and Frank T., Jr., the exercise of temporary emergency jurisdiction by the Family Court did not violate the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law § 76-c[1]).
The mother's remaining contentions need not be reached in light of our determination.
CONNOLLY, J.P., BRATHWAITE NELSON, CHRISTOPHER and TAYLOR, JJ., concur.