Opinion
05-23-2023
In the Matter of a Proceeding Under Article 6 of the Family Court Act Emmera Y., Petitioner, v. Gloria L-B., Timothy L. (deceased), and Genuine R. (deceased), Respondents. In the Matter of a Proceeding Under Article 6 of the Family Court Act Gloria L-B., Petitioner, v. Emmera Y., Timothy L. (deceased), and Genuine R. (deceased) Respondents. In the Matter of a Proceeding Under Article 6 of the Family Court Act Gloria R., Proceeding for the Appointment of a Guardian of the Person or Permanent Guardian of Aknollis B..
Richard S. Levin, Esq. for Emmera Y. Robert P. Turner, Esq. for Gloria L-B. Aaron M. Gavenda, Esq. for Gloria R. Katie E. Woodruff, Esq. Attorney for the Child
Unpublished Opinion
Richard S. Levin, Esq. for Emmera Y.
Robert P. Turner, Esq. for Gloria L-B.
Aaron M. Gavenda, Esq. for Gloria R.
Katie E. Woodruff, Esq. Attorney for the Child
Dandrea L. Ruhlmann, J.
After a murder of a young mother what relative is best suited to raise her nine year old daughter?
By Order to Show Cause and Petition filed July 12, 2021, Emmera Y. (Maternal Aunt) seeks sole custody and primary physical residency of Aknollis B. (DOB: XX/XX/2012), the child of Genuine R. (deceased Mother) and Timothy L. (previously deceased father). By Order entered July 13, 2021, the Court granted Maternal Aunt's application for temporary physical residency of Aknollis. By Petition filed August 4, 2021, Gloria L-B. (Paternal Grandmother) seeks sole custody of Aknollis . By Petition filed December 17, 2021, Gloria R. (Maternal Grandmother) sought guardianship of Aknollis but during trial moved to modify her application for Guardianship to an application for grandparent visitation. All parties stipulated to Maternal Grandmother's continued visits, except for Paternal Grandmother, who stated that due to the distance between North Carolina and Rochester she had little knowledge of the relationship between Maternal Grandmother and Aknollis.
Paternal Grandmother, in her written closing statement advised that in the event the Court did not grant her sole custody of Aknollis, she was not seeking any right to defined periods of temporary residency.
It is in the child's best interests for Emmera Y. (Maternal Aunt) to be awarded sole custody and primary physical residency of Aknollis with Paternal Grandmother and Maternal Grandmother awarded grandparent visitation.
Credibility
The trial was held over 3 days: The Court heard testimony from Maternal Aunt, Paternal Grandmother, Angela R. (another maternal aunt "Aunt Angela R.") and Jawara L. (an adult half sibling of Aknollis). The Court received into evidence Paternal Grandmother's Exhibit A - Child's school identification at Rankin Elementary 2019-2020, Exhibit B - 2 pages of text messages between Paternal Grandmother and Maternal Aunt, Exhibit C - 8 copies of photographs depicting Aknollis with paternal relatives. The Court took judicial notice of (1) an Order of Custody entered on April 1, 2019 by Court Attorney Referee, Julie Gordon, granting Mother, Genuine R., and Paternal Grandmother joint custody of Aknollis, and (2) this Court's Order of Temporary Custody entered July 13, 2021, granting Maternal Aunt temporary physical residence of Aknollis.
With the exception of Aunt Angela R. (the estranged sister of Maternal Aunt), the Court found all of the testimony to be credible (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985] [respect is to be accorded the trial judge's advantage in observing the demeanor of the witnesses]; see also Hendrickson v Hendrickson, 147 A.D.3d 1522 [4th Dept 2017]; and see Matter of (Chyreck v Swift, 144 A.D.3d 1517 [4th Dept 2016]).
Aunt Angela R. is a daughter of Maternal Grandmother. Maternal Grandmother had nine children. Mother was Angela R.'s sister. Aunt Angela R. also is the estranged sister of Maternal Aunt Emmera Y. Aunt Angela R. withdrew her petition for custody/visitation before trial, and the Court dismissed the same.
Child's Desires
The Court held an in camera interview after fact finding (see Lincoln v Lincoln, 24 N.Y.2d 270 [1969]; Fam Ct Act § 664) and has considered the child's wishes as well as her maturity and age (9 years old). Although not dispositive, the Court too has considered the child's preference as advocated by her attorney which is to live with Maternal Aunt and visit with Paternal Grandmother and Maternal Grandmother. The purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court" (see Matter of McDermott v Bale, 94 A.D.3d 1542, 1543 [4th Dept 2012]). Although a child's wishes are not determinative "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 A.D.3d 1515, 1516 [4th Dept 2010] lv denied 14 N.Y.3d 712 [2010] [internal quotation marks omitted]; see also Matter of Rohr v Young, 148 A.D.3d 1681 [4th Dept 2017]; compare Matter of Lawrence v Marris, 151 A.D.3d 1879 [4th Dept 2017] [a child's desires do not chart the course of the litigation]; see also Matter of Williams v Reid, 187 A.D.3d 1593 [4th Dept 2020] [at 7- years-old and 5-years-old, the children were too young and not of sufficient maturity for their alleged desires to demonstrate a change in circumstances]).
Extraordinary Circumstances and Change of Circumstances
Each grandmother, in accordance with DRL §72 (1), achieved standing because of the death of both of Aknollis' parents. Maternal Aunt, Emmera Y., has demonstrated extraordinary circumstances exist based on both her long standing relationship with her niece Aknollis and the untimely death of the child's parents. On April 1, 2019 Court Attorney Referee Julie Gordon granted Mother, (Genuine R.), and Paternal Grandmother joint custody of the child. Since the 2019 Order there was a "'change in circumstances which reflects a real need for change to ensure the best interest[s] of the child'" (Matter of James D. v Tammy W., 45 A.D.3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 A.D.3d 1224, 1225 [4th Dept 2006]); more specifically that Aknollis returned from Paternal Grandmother's home in North Carolina to Rochester to live primarily with Mother 15 months before her Mother's murder, which tragically Aknollis herself witnessed. The Court next must determine what custodial arrangement is in this orphan's best interests.
Best Interests
Factors courts have carved out to ascertain the best interests of children, include (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the caretaker and the length of time the present custodial arrangement has continued; (2) the quality of the child's home environment and that of the persons seeking custody; (3) the ability of the person to provide for the child's emotional and intellectual development; (4) the financial status and ability of each proposed caretaker to provide for the child; and (5) the individual needs and expressed desires of the child as well as the need for the child to live with siblings (see Fox v Fox, 177 A.D.2d 209, 210 [4th Dept 1992]; see also Matter of Braga v Bell, 151 A.D.3d 1924 [4th Dept 2017], lv denied 30 N.Y.3d 905 [2017]). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" (Robert T.F. v Rosemary F., 148 A.D.2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 94 [1982]); and see Matter of Plaza v Plaza, 305 A.D.2d 607 [2d Dept 2004]) as well as the effects of domestic violence (Hendrickson v Hendrickson, 147 A.D.3d at 1522). The Court has considered each of these factors in evaluating what custodial arrangement is in the child's best interests, and highlights those factors which it found compelling in rendering its determination.
Length of time of the Relationship
Maternal Aunt and Mother were the two youngest of nine siblings. They experienced much together, including being placed together as children in foster care. Maternal Aunt in turn has had a life long relationship with Aknollis. Since Aknollis' birth Maternal Aunt assisted her sister (Aknollis' Mother) by babysitting and otherwise caring for Aknollis. Immediately after Mother's murder, Maternal Aunt filed a petition in Family Court seeking emergency custody of her.
Paternal Grandmother, by contrast, testified that she first met Aknollis when the child was approximately three-and-a-half years old. She saw Aknollis every time she visited Rochester, or approximately three times each year. Still Aknollis spent two summers with Paternal Grandmother in North Carolina: One summer before Paternal Grandmother and Mother were awarded joint custody and one summer after the entry of that consent order in 2019. Aknollis attended elementary school from Paternal Grandmother's home in North Carolina for the 2019-2020 school year before returning home to Mother in Rochester during the COVID-19 pandemic for the 2020-2021 school year.
Ability to Provide Emotional Development
Aknollis' therapy is essential to her emotional stability as she witnessed firsthand her Mother's brutal murder. Mother was shot approximately 30 times in Aknollis' presence. Maternal Aunt testified that since this horrific event she has been fully invested in Aknollis' weekly trauma therapy at the Society for the Protection and Care of Children. Maternal Aunt and Aknollis also are engaged in family counseling.
Paternal Grandmother, by comparison, testified she did on only one occasion call the child's therapist. Further in August 2021 Paternal Grandmother arrived at Maternal Aunt's Rochester home with the police, knowing full well about the trauma Aknollis had experienced earlier that summer. Paternal Grandmother's failure to weigh the impact of having law enforcement in tow soon after the murder of Aknollis' Mother displayed a complete lack of appreciation of the trauma the child already had endured.
Support of Extended Family and the Need for Children to live with Siblings
The majority of Aknollis' maternal relatives and most of her paternal relatives live within the Rochester area. Aknollis is close with her cousins who live with her and her brothers who live in the area. Maternal Aunt and Aunt Angela R. testified that Aknollis' maternal half brothers, Rennick and Zymere, both live with their respective fathers in Rochester. Aknollis sees her half brothers on a weekly basis. Maternal Aunt's surviving sisters assist in caring for Aknollis as does Peter S., Rennick's father. Paternal Grandmother conceded that Aknollis has four paternal half-siblings who also reside in Rochester. Of all of Aknollis' half siblings, only one, a paternal adult half brother, resides near Paternal Grandmother in North Carolina.
Willingness to Foster the Child's Relationship with the Other Party
Due to the untimely death of Aknollis' parents, it is important that she is raised in an environment where both her Mother and her Father's memory will be honored. Maternal Aunt in testifying about Aknollis' deceased father, Timothy L., had nothing negative to say about him or his relationship with Aknollis. Indeed Paternal Grandmother confirmed that there was not any animus between her son and Aknollis' extended maternal family. Yet, Paternal Grandmother conceded that while she had learned to love Mother, she disliked Aknollis' maternal relatives.
Maternal Aunt testified that she first had contact with Paternal Grandmother after her sister's death and ever since has facilitated contact between Aknollis and her grandmother. Maternal Aunt testified that she will encourage Aknollis' regular telephone contact and in person visits with her Paternal Grandmother and any paternal family members both in Rochester and, or North Carolina.
Still Paternal Grandmother called Mother's family "street people," and was reluctant to interact with them. Specifically, Paternal Grandmother admitted that during a recent telephone call, she became irate when Maternal Aunt asked her not to speak to Aknollis about the court proceedings and she hung up on Maternal Aunt three times. Indeed Paternal Grandmother declared that if she did not receive sole custody ("100% custody"), she did not want a schedule of visitation with Aknollis. In total, Paternal Grandmother's own testimony reflects a genuine disdain for Aknollis' maternal relatives. The Court thus finds Maternal Aunt is in a better position to provide for Aknollis' emotional and intellectual development, as she, unlike Paternal Grandmother is prepared to work cooperatively with Aknollis' extended family.
Ability to Provide Intellectual Development
Maternal Aunt has enrolled Aknollis in the same school that her own children attend in the Rochester City School District. Maternal Aunt testified that Aknollis is a good student and is doing well in school. Similarly, Paternal Grandmother testified that Aknollis performed well when she attended Rankin Elementary School from August 2019 to March 2020 in North Carolina.
Quality of the Home Environment
This Court finds that Aunt Angela R.'s claims that her sister Maternal Aunt Emmera Y.'s home was unsafe for Aknollis, are without merit. Aknollis now lives with her Maternal Aunt in a townhouse. Aknollis' cousins, Maternal Aunt's 9-year old son and her 5-year old daughter also live there. Aknollis has her own bedroom. Aunt Angela R. testified that there are firearms in Maternal Aunt's home. Maternal Aunt vehemently denies such allegation. Paternal Grandmother too urges that this Court prohibit Maternal Aunt from owning and/or possessing any firearms.
Paternal Grandmother also has provided a safe home for Aknollis. Paternal Grandmother lives with two granddaughters who attend college at East Carolina University in Greenville, North Carolina.
The Financial Ability to Provide for the Child
Maternal Aunt maintains health insurance for Aknollis, and has continued the child's medical and dental care though her prior provider, UR/Strong Hospital. Paternal Grandmother testified that when Aknollis lived with her in North Carolina, Mother addressed any service needs by arranging all of the child's educational, medical and dental appointments.
The Health and Fitness of the Parties
Maternal Aunt has no health issues. Paternal Grandmother has a thyroid condition and high blood pressure. The Court finds both parties are fit to care for Aknollis.
The Effects of Domestic Violence
The effects of domestic violence was not a dominant issue for Maternal Aunt or Paternal Grandmother. Maternal Grandmother has however had an extensive history with child protective services arising in part from acts of domestic violence.
Alcohol and Illegal Drug Use
Again as between Maternal Aunt and Paternal Grandmother there were no concerns of alcohol or drug misuse. Paternal Grandmother and the Attorney for the Child did, however, urge the Court to adopt protective language in it's final order, due to Maternal Grandmother's child protective history restricting the use of illegal drugs, marijuana and alcohol in the presence of Aknollis.
Totality of the Circumstances
The Court must evaluate the totality of the circumstances, no one factor is determinative (Matter of Edmonds v Lewis, 175 A.D.3d 1040 [4th Dept 2019], lv denied 34 N.Y.3d 909 [2020]). Great deference is accorded to the determination of the trial court (see Matter of Cross v Casewell, 113 A.D.3d 1107 [4th Dept 2014]). After considering the totality of the evidence and weighing the best interests factors carefully, the Court finds that the best interests of Aknollis warrant that Maternal Aunt be awarded sole custody and primary physical residence. Without a doubt Aknollis is well bonded to both Paternal Grandmother and Maternal Aunt and the Court finds that Aknollis would continue to benefit from both relationships. The parties must set aside any mistrust that developed during the pendency of this action (fueled in large part by the litigation itself) and promote only what is best for Aknollis so her life can be enriched by knowing well both her maternal and paternal families. Paternal Grandmother shall be awarded periods of temporary residence (visitation ) including both time in Rochester and in North Carolina. Maternal Grandmother shall be granted limited consistent visitation with Aknollis in Rochester, with provisions to ensure the child's safety.
Should Paternal Grandmother choose to exercise it.
THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:
Now, therefore, it is hereby
ADJUDGED that extraordinary circumstances and a change of circumstances exist due to the death of both parents of the child Aknollis B. (DOB: XX/XX/2012); and it is further
ORDERED that the Order of Custody entered on April 1, 2019 by Court Attorney Referee, Julie Gordon awarding now deceased Mother, Genuine R. and Paternal Grandmother, Gloria L- B., joint custody of Aknollis is hereby null and void; and it is further
ORDERED that it is in the best interests of Aknollis that Maternal Aunt, Emmera Y., is awarded sole custody and primary physical residence of the child; and it is further
ORDERED that it is in the best interests of Aknollis that Paternal Grandmother is awarded visitation with Aknollis during her visits to Rochester so long as she gives Maternal Aunt reasonable notice of the visits and such visits shall not be unreasonably withheld; and it is further
ORDERED that Paternal Grandmother shall enjoy the first three full weeks of the child's summer recess at the Paternal Grandmother's home in North Carolina, provided Paternal Grandmother provides written confirmation and an itinerary to Maternal Aunt confirming that she will be exercising her summer recess visit by June 1st of each year; and it is further
ORDERED that Paternal Grandmother shall be responsible for the costs and the arrangement of transportation for Aknollis' travel to and from Rochester/North Carolina and shall travel with the child or provide Maternal Aunt with the name of the person traveling with the child for Maternal Aunt's approval, and Paternal Grandmother shall provide the transportation information in writing to Maternal Aunt by June 1st of each year; and it is further
ORDERED that any further and or different visits between Paternal Grandmother and the child shall be upon the terms and conditions as agreed upon between Paternal Grandmother and Maternal Aunt; and it is further
ORDERED that Maternal Aunt and Paternal Grandmother shall ensure the health, safety and welfare of Aknollis at all times; and it is further
ORDERED that neither Maternal Aunt nor Paternal Grandmother shall use physical or corporal discipline or punishment on Aknollis nor allow any third party to use corporal or physical punishment on her; and it is further
ORDERED that neither Maternal Aunt nor Paternal Grandmother shall commit any act of violence toward the other party or to Aknollis nor allow any third party to commit any act of violence towards Maternal Aunt, Paternal Grandmother or Aknollis; and it is further
ORDERED that neither Maternal Aunt nor Paternal Grandmother shall be under the influence of illegal drugs, excess marijuana or excess alcohol in the presence of Aknollis, nor allow third parties to be under the influence of illegal drugs, excess marijuana or excess alcohol in the presence of Aknollis; and it is further
ORDERED that neither Maternal Aunt nor Paternal Grandmother shall leave Aknollis unsupervised, unattended or with inappropriate caregivers; and it is further
ORDERED that Maternal Aunt and Paternal Grandmother shall promptly notify the other in the event of a medical emergency concerning Aknollis; and it is further
ORDERED that both Maternal Aunt and Paternal Grandmother shall keep the other advised at all times of their present address and phone number(s); and it is further
ORDERED both Maternal Aunt and Paternal Grandmother shall allow Aknollis to have reasonable telephone contact (or video/zoom etc. as available) with the other adult when Aknollis is in their care; and it is further
ORDERED that neither Maternal Aunt nor Paternal Grandmother shall make any disparaging or derogatory remarks about the other or Aknollis' deceased parents in the presence of Aknollis, nor permit any third party to do so; and it is further
ORDERED that Maternal Aunt shall continue to engage Aknollis in trauma therapy as directed by the child's therapist at the Society for the Protection and Care of Children; and it is further
ORDERED that Maternal Aunt and Paternal Grandmother shall not possess or store any firearms (in her home, a vehicle or on her person) unless licensed to do so, and shall secure any such legal weapons in a child-resistant locked container out of the reach and sight of Aknollis and other children; and it is further
ORDERED that Maternal Aunt and Paternal Grandmother shall store ammunition in a separate locked container out of the reach and sight of Aknollis and other children; and it is further
ORDERED that it is in the best interests of Aknollis that Maternal Grandmother, Gloria R., be awarded temporary residency (visits) at a location approved by Maternal Aunt, which approval shall not be unreasonably withheld, on the first Saturday of each month (January - June and August - December) from 12:00 noon Saturday until 12:00 noon on Sunday and any further or different times as approved between Maternal Grandmother and Maternal Aunt under the terms and conditions below;
1) ORDERED that Maternal Grandmother shall not consume nor be under the influence of alcohol, marijuana or illegal drugs in the presence of Aknollis, nor shall she allow any third party to do so; and it is further
2) ORDERED that Maternal Grandmother shall not use physical punishment to discipline Aknollis nor shall she permit any third party to do so; and it is further
3) ORDERED that Maternal Grandmother shall not leave Aknollis unsupervised, unattended or with inappropriate caregivers; and it is further
4) ORDERED that Maternal Grandmother shall not commit any act of domestic violence in the presence Aknollis nor allow any third party to commit any act of domestic violence in the presence of the child; and it is further
5) ORDERED that Maternal Grandmother shall store all guns (in the home, a vehicle or on a person) unloaded and secured with an effective, child-resistant gun lock in a locked container out of the reach and sight of Aknollis and other children; and it is further
6) ORDERED that Maternal Grandmother shall store ammunition in a separate locked container out of the reach and sight of Aknollis and other children; and it is further
7) ORDERED that Maternal Grandmother shall promptly notify Maternal Aunt in the event of a medical emergency concerning Aknollis; and it is further
8) ORDERED that both Maternal Aunt and Maternal Grandmother shall keep the other advised at all times of their present address and phone number(s); and it is further
9) ORDERED that Maternal Grandmother shall allow Aknollis to have reasonable telephone contact with Maternal Aunt during Maternal Grandmother's visitation; and it is further
10) ORDERED that Maternal Grandmother shall ensure the health, safety and welfare of Aknollis at all times.
Dated this 23rd day of May, 2022 at Rochester, New York.
PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.