Opinion
2014-03-28
In the Matter of Denver KOMENDA, Petitioner–Appellant, v. Samantha DININNY, Respondent–Respondent. (Proceeding No. 1.) In the Matter of Emma Dirre, Petitioner, v. Erie County Department of Social Services, Respondent. (Proceeding No. 2.) In the Matter of Emma Dirre, Petitioner–Respondent, v. Denver Komenda, Respondent–Appellant. (Proceeding No. 3.)
Mindy L. Marranca, Buffalo, for Petitioner–Appellant and Respondent–Appellant. Jennifer M. Lorenz, Lancaster, for Respondent–Respondent.
Mindy L. Marranca, Buffalo, for Petitioner–Appellant and Respondent–Appellant. Jennifer M. Lorenz, Lancaster, for Respondent–Respondent.
Joseph T. Jarzembek, Buffalo, for Respondent.
Francis W. Tesseyman, Jr., Orchard Park, for Petitioner–Respondent.
David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
On appeal from an order granting sole custody of the subject child to petitioner-respondent (petitioner), a nonparent, respondent-appellant father contends that there was no showing of extraordinary circumstances. 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, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see Matter of Howard v. McLoughlin, 64 A.D.3d 1147, 1147, 881 N.Y.S.2d 766). Here, the record establishes that the father had a history of alcohol, substance, and prescription drug abuse; that he used heroin during the period of time that he had custody of the subject child; and that he ultimately lost custody of the child due to his drug use ( see Matter of Beth M. v. Susan T., 81 A.D.3d 1396, 1397, 917 N.Y.S.2d 466;Matter of Pamela S.S. v. Charles E., 280 A.D.2d 999, 1000, 720 N.Y.S.2d 669). At the time of the hearing, the father had custody of a teenage son from another relationship, and he admitted that his son also had substance abuse issues. Despite a court order granting him weekly visitation, the father visited the subject child only three or four times during a nearly two-year period ( see Matter of Campbell v. January, 114 A.D.3d 1176, 979 N.Y.S.2d 740). Further, the child has significant mental health issues, and the father “demonstrated that he has no interest in learning about the child's conditions and needs and how to treat them” (id. at 1177, 979 N.Y.S.2d 740). Contrary to the further contention of the father, we conclude that the record supports Family Court's determination that the award of custody to petitioner is in the best interests of the child ( see Pamela S.S., 280 A.D.2d at 1000, 720 N.Y.S.2d 669). The record reflects, among other things, that petitioner has provided the child with a safe and stable home environment, that the child is doing well in petitioner's care, and that the child enjoys a close and loving relationship with his half sister, who also resides with petitioner ( see Matter of James GG. v. Bamby II., 85 A.D.3d 1227, 1228, 924 N.Y.S.2d 615;Matter of Fynn S., 56 A.D.3d 959, 961–962, 868 N.Y.S.2d 352;Gary G., 248 A.D.2d at 982, 670 N.Y.S.2d 270).
The father's challenges to the temporary order of removal are not properly before us inasmuch as he ultimately consented to the child's placement with petitioner ( see Matter of Guck v. Prinzing, 100 A.D.3d 1507, 1508, 954 N.Y.S.2d 366,lv. denied21 N.Y.3d 851, 2013 WL 1299865;see generally Matter of Violette K. [Sheila E.K.], 96 A.D.3d 1499, 1499, 946 N.Y.S.2d 519;Matter of Fox v. Coleman, 93 A.D.3d 1187, 1187, 939 N.Y.S.2d 786). In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] ... [and t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v. Heintz, 275 A.D.2d 971, 971–972, 713 N.Y.S.2d 709;see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684;Matter of Owens v. Garner, 63 A.D.3d 1585, 1585–1586, 881 N.Y.S.2d 251).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.