Opinion
852 CAF 18–01202
10-04-2019
In the Matter of Kiersten A. SMITH, Petitioner–Respondent, v. Sherri BALLAM, Respondent–Appellant, et al., Respondent. In the Matter of Sherri Ballam, Petitioner–Appellant, v. Kiersten A. Smith, Respondent–Respondent, et al., Respondent.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, respondent-petitioner grandmother appeals from an order that, inter alia, granted sole legal custody and physical placement of the subject child to petitioner-respondent mother and denied visitation to the grandmother.
Initially, we note that while this appeal was pending, Family Court granted the grandmother's subsequent petition seeking visitation. The mother then moved to dismiss this appeal as moot insofar as the grandmother contends that the court erred in failing to grant her visitation in the order on appeal (see Matter of Jones v. Tucker, 125 A.D.3d 1273, 1273, 999 N.Y.S.2d 778 [4th Dept. 2015] ). Under the circumstances presented here, however, we conclude that the exception to the mootness doctrine applies (see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). We therefore deny the mother's renewed motion to dismiss the appeal insofar as it concerns the issue of visitation. Nevertheless, we affirm the order on appeal. We reject the grandmother's contention that the court erred in denying her petition for custody and granting custody to the mother. "It is well established 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] ; see Matter of Lakeya P. v. Ajja M., 169 A.D.3d 1409, 1410–1411, 92 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2461559 [2019] ; Matter of Braun v. Decicco, 117 A.D.3d 1453, 1454, 984 N.Y.S.2d 771 [4th Dept. 2014], lv dismissed in part and denied in part 24 N.Y.3d 927, 993 N.Y.S.2d 539, 17 N.E.3d 1135 [2014] ). Here, the grandmother failed to meet her burden of establishing that extraordinary circumstances exist to warrant an inquiry into whether an award of custody to the grandmother is in the best interests of the child (see generally Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). In particular, we conclude that the grandmother failed to establish her claim that the mother suffered from unaddressed, serious mental health issues that would warrant a finding of extraordinary circumstances (cf. Lakeya P., 169 A.D.3d at 1410–1411, 92 N.Y.S.3d 787 ; Matter of Thomas v. Armstrong, 144 A.D.3d 1567, 1568, 40 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628998 [2017] ).
Contrary to the grandmother's further contention, we conclude that, as of the time that the order was entered, the record supports the court's determination that it was in the best interests of the subject child to deny the grandmother visitation "in view of the grandmother's failure to abide by court orders, the grandmother's animosity toward the [mother], with whom the child[ now] reside[s], and the fact that the grandmother frequently engaged in acts that undermined the subject child[ ]'s relationship with" the mother ( Matter of Ordona v. Campbell, 132 A.D.3d 1246, 1247–1248, 17 N.Y.S.3d 803 [4th Dept. 2015] ; see generally Matter of Jones v. Laubacker, 167 A.D.3d 1543, 1544–1546, 90 N.Y.S.3d 785 [4th Dept. 2018] ). It is well settled that "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Marino v. Marino, 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] [internal quotation marks omitted]; see Matter of Macri v. Brown, 133 A.D.3d 1333, 1333–1334, 20 N.Y.S.3d 804 [4th Dept. 2015] ), and we perceive no basis for disturbing the court's determination here (cf. Matter of Richardson v. Ludwig, 126 A.D.3d 1546, 1547, 4 N.Y.S.3d 570 [4th Dept. 2015] ; see generally Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007] ).
Finally, we reject the grandmother's contention that the child was deprived of effective assistance of counsel on appeal (see Matter of Ferguson v. Skelly, 80 A.D.3d 903, 906, 914 N.Y.S.2d 428 [3d Dept. 2011], lv denied 16 N.Y.3d 710, 2011 WL 1584758 [2011] ). The record, the briefs, and the statements of the attorneys at oral argument do not support the grandmother's allegations that the Attorney for the Child failed to make a recommendation in accordance with the child's wishes or that she failed to consult with the child (see generally Matter of Hilgenberg v. Hertel, 100 A.D.3d 1432, 1433, 954 N.Y.S.2d 793 [4th Dept. 2012] ).
All concur except Curran, J., who dissents and votes to dismiss the appeal in part and otherwise affirm in accordance with the following memorandum:
I agree with the majority that Family Court did not err in denying respondent-petitioner grandmother's petition for custody based on her failure to establish that extraordinary circumstances exist to warrant an inquiry into whether an award of custody to the grandmother is in the best interests of the child (see generally Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ; Matter of Orlowski v. Zwack, 147 A.D.3d 1445, 1446–1447, 46 N.Y.S.3d 770 [4th Dept. 2017] ). I also agree with the conclusion that the child was not deprived of effective assistance of counsel on appeal (see generally Matter of Hilgenberg v. Hertel, 100 A.D.3d 1432, 1433, 954 N.Y.S.2d 793 [4th Dept. 2012] ).
I respectfully dissent, however, from the majority's conclusion that, despite the entry of a new order granting the grandmother's subsequent petition for visitation, the exception to the mootness doctrine applies and permits this Court to review her contention that the court improperly denied her visitation with the subject child in the order on appeal (see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). I conclude that the exception does not apply, and therefore I would grant petitioner-respondent mother's renewed motion to dismiss the appeal with respect to the issue of visitation.
The majority plainly agrees with my conclusion that the grandmother's contention with respect to visitation is moot here because the subsequent order granted the grandmother visitation rights. Indeed, the rights of the parties with respect to visitation cannot and will not "be directly affected by the determination" of the visitation issue on this appeal ( id. at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). Any "corrective measures which this Court might have taken with respect to the order appealed from would have no practical effect " because of the subsequent order ( Matter of Cullop v. Miller, 173 A.D.3d 1652, 1652–1653, 99 N.Y.S.3d 898 [4th Dept. 2019] [internal quotation marks omitted and emphasis added]; see Matter of Lateesha J., 252 A.D.2d 503, 503–504, 675 N.Y.S.2d 560 [2d Dept. 1998] ). In essence, the grandmother is no longer aggrieved by that part of the order on appeal concerning visitation (see generally Matter of Kahlil S., 12 N.Y.3d 898, 898, 884 N.Y.S.2d 679, 912 N.E.2d 1058 [2009] ; Matter of Mahagan v. New York State Dept. of Health, 53 A.D.3d 1118, 1119, 862 N.Y.S.2d 419 [4th Dept. 2008] ).
As noted above, I disagree with the majority's application of the exception to the mootness doctrine. In my view, this Court's precedent compels the conclusion that the issue of visitation raised by the grandmother is rendered unreviewable by the subsequent order concerning visitation and that the exception does not apply. I note that we have consistently held that where an attorney for a party "has submitted new information, obtained during the pendency of [an] appeal, indicating that the order of visitation has been superseded by a subsequent order ..., the ... challenge to the order [on] appeal ... has been rendered moot" ( Matter of Kirkpatrick v. Kirkpatrick, 117 A.D.3d 1575, 1576, 985 N.Y.S.2d 368 [4th Dept. 2014] ). Cases in which we have applied this rule to conclude that an issue such as visitation is moot and further concluded that the exception to the mootness doctrine does not apply are practically legion (see e.g. Matter of Brooks v. Greene, 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ; Matter of Dawley v. Dawley [Appeal No. 2], 144 A.D.3d 1501, 1502, 40 N.Y.S.3d 863 [4th Dept. 2016] ; Matter of Warren v. Hibbs, 136 A.D.3d 1306, 1306, 24 N.Y.S.3d 551 [4th Dept. 2016], lv denied 27 N.Y.3d 909, 2016 WL 3248620 [2016] ; Matter of Smith v. Cashaw [Appeal No. 1], 129 A.D.3d 1551, 1551, 9 N.Y.S.3d 899 [4th Dept. 2015] ; Matter of Morgia v. Horning [Appeal No. 1], 119 A.D.3d 1355, 1355, 988 N.Y.S.2d 508 [4th Dept. 2014] ; see also Cullop, 173 A.D.3d at 1652–1653, 99 N.Y.S.3d 898 ; Matter of Pugh v. Richardson, 138 A.D.3d 1423, 1423–1424, 29 N.Y.S.3d 207 [4th Dept. 2016] ; Matter of Trombley v. Payne, 133 A.D.3d 1252, 1252, 18 N.Y.S.3d 912 [4th Dept. 2015] ; Matter of Salo v. Salo, 115 A.D.3d 1368, 1368, 982 N.Y.S.2d 805 [4th Dept. 2014] ).
The majority provides no explanation of what circumstances or facts present in this particular case justify application of the exception to the mootness doctrine, cryptically asserting only that the exception applies "[u]nder the circumstances presented here[.]" I see no facts or circumstances, however, that would substantively differentiate the instant appeal from any of the above-cited cases and justify application of the exception to the mootness doctrine in this case but not in the others. In my view, application of the exception should be consistent and, absent elucidation of the relevant distinguishing facts, the majority's approach creates a confusing incongruence in our jurisprudence on that issue.
Even without resort to our overwhelming precedent, I conclude that no part of the rationale underlying the exception to the mootness doctrine is implicated here. The exception is based on "three common factors: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" ( Hearst Corp., 50 N.Y.2d at 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). Even assuming that similar visitation issues are likely to recur between the parties, I conclude that such issues can easily be addressed via new petitions based on new allegations and that they will not typically raise novel issues likely to evade judicial review if left unreviewed.