Opinion
2017–06862 Docket Nos. G–20053–15 G–20054–15 G–20061–15 V–18752–15 V–18753–15 V–18761–15
04-18-2018
In the Matter of LINDA S.M. (Anonymous), appellant, et al., petitioner, v. DEMETRIUS W. (Anonymous), et al., respondents, Aziza M. (Anonymous), respondent-Respondent.
Kenneth M. Tuccillo, Hastings on Hudson, NY, for appellant. Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for respondent—respondent. Seymour W. James, Jr., New York, N.Y. (Dawne Mitchell and Marcia Egger of counsel), attorney for the child.
Kenneth M. Tuccillo, Hastings on Hudson, NY, for appellant.
Cabelly & Calderon, Jamaica, N.Y. (Lewis S. Calderon of counsel), for respondent—respondent.
Seymour W. James, Jr., New York, N.Y. (Dawne Mitchell and Marcia Egger of counsel), attorney for the child.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article
6, the maternal grandmother appeals from an amended order of the Family Court, Queens County (Carol A. Stokinger, J.), dated June 7, 2017. The amended order, insofar as appealed from, without a hearing, granted that branch of the mother's motion which was to dismiss the maternal grandmother's petitions for guardianship of the subject children.
ORDERED that the amended order is affirmed insofar as appealed from, without costs or disbursements.
The petitioner is the maternal grandmother of three children born in 2008, 2011, and 2013, respectively. In January 2015, the Administration for Children's Services (hereinafter ACS) filed petitions pursuant to Family Court Act article 10 alleging that the mother had neglected the children. The children were removed from the mother's custody and placed in the same nonkinship foster home. Thereafter, the grandmother and maternal aunt filed petitions pursuant to Family Court Act article 6 seeking, inter alia, guardianship of the children. In March 2016, the children were returned to the mother's custody and, in an order dated May 17, 2016, the Family Court adjourned the neglect proceeding for six months in contemplation of dismissal (hereinafter ACD). In an order dated November 28, 2016, the court dismissed the neglect petition in the interest of justice upon the mother's completion of the terms of the ACD. In March 2017, the mother moved, inter alia, to dismiss the grandmother's guardianship petitions for lack of standing. In the amended order appealed from dated June 7, 2017, the court, inter alia, granted that branch of the mother's motion which was to dismiss the grandmother's guardianship petitions. The grandmother appeals.
" ‘In a child custody dispute 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 due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances' " ( Matter of Maddox v. Maddox, 141 A.D.3d 529, 529, 35 N.Y.S.3d 264, quoting Matter of Bailey v. Carr, 125 A.D.3d 853, 853, 4 N.Y.S.3d 121 ; see Matter of Suarez v. Williams , 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546–548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). The nonparent bears the burden of proving the existence of extraordinary circumstances in order to establish his or her standing to seek custody (see Matter of Jamison v. Britton, 141 A.D.3d 522, 524, 35 N.Y.S.3d 256; Matter of Santiago v. Henderson, 122 A.D.3d 866, 867, 996 N.Y.S.2d 686 ). In the absence of a showing of extraordinary circumstances, no inquiry into the best interests of the child is triggered (see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Sellers v. Brown, 155 A.D.3d 1047, 65 N.Y.S.3d 207 ). " ‘A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers' " ( Matter of Moskowitz v. Moskowitz, 128 A.D.3d 1070, 1070, 9 N.Y.S.3d 674, quoting Matter of Roberts v. Roberts, 81 A.D.3d 1117, 1118, 917 N.Y.S.2d 370 ; see Matter of Smith v. Cooks, 148 A.D.3d 814, 815, 49 N.Y.S.3d 158 ; Matter of Pugz v. Smith, 144 A.D.3d 1039, 1040, 40 N.Y.S.3d 914 ).
Here, the Family Court properly granted, without a hearing, the mother's motion to dismiss the grandmother's guardianship petition based on the grandmother's lack of standing. The submitted papers established that the mother had not surrendered or abandoned the children, as she consistently visited them and planned for their return while they were in foster care. Although the grandmother cared for the two youngest children for a few months in 2013 when the mother moved and was seeking new employment, the mother remained in contact with the grandmother and the children (see Matter of Jamison v. Britton, 141 A.D.3d at 524, 35 N.Y.S.3d 256; Matter of Hyde v. King, 47 A.D.3d 813, 815, 849 N.Y.S.2d 650 ). Additionally, the mother's compliance with ACS's service plan and completion of the terms of the ACD demonstrated that she had addressed the alleged lapses in parental judgment (see Matter of Burton v. Barrett, 104 A.D.3d 1084, 1086, 961 N.Y.S.2d 610 ; Matter of Ramos v. Ramos, 75 A.D.3d 1008, 1012, 905 N.Y.S.2d 717 ). Those prior shortcomings do not rise to the level of unfitness or persistent neglect (see Matter of Jennifer BB. v. Megan CC., 150 A.D.3d 1340, 1341, 53 N.Y.S.3d 725 ; Matter of Rodriguez v. Delacruz–Swan, 100 A.D.3d 1286, 1288, 954 N.Y.S.2d 692 ). Since the submissions raised no triable issue of fact as to a showing of "extraordinary circumstances," a hearing on the issue of standing was not necessary (see Matter of Schmitt v. Troche, 155 A.D.3d 739, 741, 64 N.Y.S.3d 91).
The grandmother's remaining contention is without merit.
SCHEINKMAN, P.J., BALKIN, AUSTIN and HINDS–RADIX, JJ., concur.