Opinion
728 CAF 18-01128
07-24-2020
In the Matter of Susan JOHNSON, Petitioner-Respondent, v. Latika WELLINGTON, Respondent-Appellant, and Evan Johnson, Respondent-Respondent.
TIMOTHY R. LOVALLO, BUFFALO, FOR RESPONDENT-APPELLANT. DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-RESPONDENT.
TIMOTHY R. LOVALLO, BUFFALO, FOR RESPONDENT-APPELLANT.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order granting sole custody of the subject child to petitioner, who is the child's paternal grandmother (grandmother), respondent mother contends that there was no showing of extraordinary circumstances warranting an inquiry into whether an award of custody to a nonparent is in the child's best interests. We reject that contention.
It is well settled that, "as 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 because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ " ( Matter of Gary G. v. Roslyn P. , 248 A.D.2d 980, 981, 670 N.Y.S.2d 270 [4th Dept. 1998], quoting Matter of Bennett v. Jeffreys , 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ; see Matter of Howard v. McLoughlin , 64 A.D.3d 1147, 1147, 881 N.Y.S.2d 766 [4th Dept. 2009] ).
Here, the record established that the mother relinquished her superior right to custody through her persistent neglect of the child and because she voluntarily abandoned custody of the child to the grandmother. The evidence adduced at the fact-finding hearing established that the mother has "failed either to maintain substantial , repeated and continuous contact with [the] child or to plan for the child's future" ( Matter of Suarez v. Williams , 26 N.Y.3d 440, 450, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] [internal quotation marks omitted]; see Matter of Barnes v. Evans , 79 A.D.3d 1723, 1723-1724, 914 N.Y.S.2d 487 [4th Dept. 2010] ; cf. Matter of Ferguson v. Skelly , 80 A.D.3d 903, 905, 914 N.Y.S.2d 428 [3d Dept. 2011], lv denied 16 N.Y.3d 710, 2011 WL 1584758 [2011] ). Family Court's determination to credit the grandmother's testimony over the mother's in determining the existence of extraordinary circumstances is entitled to great deference and we see no reason to disturb that credibility determination (see Matter of Miner v. Torres , 179 A.D.3d 1490, 1491, 118 N.Y.S.3d 844 [4th Dept. 2020] ).
Here, the record establishes that, since she left the family home and ceased caring for the child, the mother has only sporadically visited the child, has not communicated with the grandmother about the child or his care, does not provide financial support for the child, and has not stayed informed about the child's health and education. The evidence at the hearing also established that the grandmother has provided the child with a safe and stable home environment, which the mother has not been able to replicate. Indeed, the evidence showed that the mother does not have adequate supplies for the child and does not know the child's clothing size (see Matter of Debra SS. v. Brian TT. , 163 A.D.3d 1199, 1200-1202, 81 N.Y.S.3d 621 [3d Dept. 2018] ; Matter of DellaPiana v. DellaPiana , 161 A.D.3d 1228, 1229, 75 N.Y.S.3d 381 [3d Dept. 2018] ; Matter of Diane FF. v. Faith GG. , 291 A.D.2d 671, 672, 737 N.Y.S.2d 437 [3d Dept. 2002] ). Thus, the court properly determined that the grandmother met her burden of establishing that extraordinary circumstances existed (see Matter of Komenda v. Dininny , 115 A.D.3d 1349, 1350, 983 N.Y.S.2d 188 [4th Dept. 2014] ). The mother does not challenge the merits of the court's determination that the child's best interests are served by awarding sole custody to the grandmother.