Opinion
11-10-2016
In the Matter of TRISTYN R. and Addasyn R. Cattaraugus County Department of Social Services, Jenna W. and Trevor W., Petitioners–Respondents; Joshua R., Respondent, and Jacqueline Z., Respondent–Appellant. (Appeal No. 2.).
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Respondent–Appellant. Wendy G. Peterson, Olean, for Petitioner–Respondent Cattaraugus County Department of Social Services. Michael D. Burke, Attorney for the Children, Olean.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Respondent–Appellant.
Wendy G. Peterson, Olean, for Petitioner–Respondent Cattaraugus County Department of Social Services.
Michael D. Burke, Attorney for the Children, Olean.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.
MEMORANDUM:In appeal No. 1, respondent mother appeals from an order of disposition that granted custody of her child, Tristyn R., to the child's maternal aunt and uncle. In appeal No. 2, the mother appeals from an amended order of custody and disposition that, inter alia, adjudged that the mother had violated an order of protection, and granted custody of the children, Tristyn R. and Addasyn R., to the children's maternal aunt and uncle. We note at the outset that the mother's appeal from the order in appeal No. 1 must be dismissed inasmuch as that order was superseded by the subsequent order in appeal No. 2 (see Matter of Tuttle v. Mateo [Appeal No. 3], 121 A.D.3d 1602, 1603, 993 N.Y.S.2d 863 ; Matter of Eric D. [Appeal No. 1], 162 A.D.2d 1051, 1051, 559 N.Y.S.2d 156 ).
We reject the mother's contention that the amended order in appeal No. 2 must be vacated. The order of protection directed the mother not to allow respondent father to have unsupervised contact with the children. Family Court credited the testimony that the mother allowed the father to have unsupervised contact with the children on numerous occasions. “ ‘According deference to that credibility determination, as we must, we conclude that petitioner established by clear and convincing evidence that [the mother] willfully violated the ... order of protection’ ” (Matter of Schoenl v. Schoenl, 136 A.D.3d 1361, 1362, 25 N.Y.S.3d 482 ; see Matter of Duane H. v. Tina J., 66 A.D.3d 1148, 1149, 887 N.Y.S.2d 345 ; see also Matter of Da'Shunna M.H. [Delbert W.H.], 133 A.D.3d 1381, 1382, 20 N.Y.S.3d 822 ; Matter of William S., 231 A.D.2d 950, 951, 648 N.Y.S.2d 377 ). We further conclude that the court properly found that there are extraordinary circumstances justifying an inquiry into whether nonparents could obtain custody of the children as against the mother, and that it properly determined that it is in the best interests of the children to be placed in the custody of their maternal aunt and uncle (see generally Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter
of McNeil v. Deering, 120 A.D.3d 1581, 1582, 992 N.Y.S.2d 810, lv. denied 24 N.Y.3d 911, 2014 WL 7152330 ; Matter of Beth M. v. Susan T., 81 A.D.3d 1396, 1397, 917 N.Y.S.2d 466 ).
It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.