Opinion
55 CAF 18–00019
02-07-2020
In the MATTER OF EMMA D. Ontario County Department of Social Services, Child Protective Unit, Petitioner–Respondent; v. Kelly V.(D.), Respondent–Appellant. (Appeal No. 1.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT. HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA (SANDRA J. PACKARD OF COUNSEL), FOR PETITIONER–RESPONDENT. TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.
HOLLY A. ADAMS, COUNTY ATTORNEY, CANANDAIGUA (SANDRA J. PACKARD OF COUNSEL), FOR PETITIONER–RESPONDENT.
TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner in appeal No. 1, the Ontario County Department of Social Services, Child Protective Unit (Ontario DSS), commenced a neglect proceeding against respondent mother pursuant to Family Court Act article 10. Petitioner in appeal No. 2, Margarita D. (grandmother), commenced a custody proceeding against the mother pursuant to Family Court Act article 6. The mother now appeals from orders entered in the respective proceedings that, inter alia, granted custody of the subject child to the grandmother. We affirm in both appeals.
With respect to appeal No. 1, we reject the mother's contention that Family Court erred in dismissing her motion seeking to change venue to Monroe County. When the mother gave birth to the child in a hospital in Monroe County, the mother listed only a post office box in Ontario County as her address. While the child was still in the hospital, a report of child abuse or maltreatment was made by a hospital worker to the New York State Central Register of Child Abuse and Maltreatment, which assigned the matter to Ontario DSS based on the address that the mother had given to the hospital. During the ensuing investigation, the mother refused to provide Ontario DSS with the address where she actually resided. After Ontario DSS commenced this neglect proceeding, the mother moved to change venue to Monroe County, arguing that the proceeding should have been brought in that county because she resided there. However, at the hearing on the motion, the mother testified and again refused to state where she resided at the time she gave birth to the child. We therefore conclude that Family Court did not abuse its discretion in dismissing the mother's motion inasmuch as she failed to show "good cause" to transfer venue ( Family Ct. Act § 174 ; see Matter of Rice v. Wightman, 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ; Matter of Carter v. Van Zile, 162 A.D.3d 1127, 1128, 78 N.Y.S.3d 484 [3d Dept. 2018] ).
With respect to appeal No. 2, we reject the mother's contention that the record does not support a finding of extraordinary circumstances. The finding of neglect in appeal No. 1, which the mother does not contest, supplied the threshold showing that extraordinary circumstances exist to warrant an inquiry into whether an award of custody to the grandmother is in the child's best interests (see Matter of Jackson v. Euson, 153 A.D.3d 1655, 1656, 61 N.Y.S.3d 415 [4th Dept. 2017] ; Matter of North v. Yeagley, 96 A.D.3d 949, 950, 946 N.Y.S.2d 508 [2d Dept. 2012] ; see generally Matter of Donna KK. v. Barbara I., 32 A.D.3d 166, 169, 819 N.Y.S.2d 582 [3d Dept. 2006] ). Moreover, the evidence at the combined dispositional/custody hearing established that the mother had an unstable living situation, had mental health problems, and failed to address the child's special needs (see North, 96 A.D.3d at 950, 946 N.Y.S.2d 508 ; Matter of Brault v. Smugorzewski, 68 A.D.3d 1819, 1819, 890 N.Y.S.2d 866 [4th Dept. 2009] ).
Finally, we reject the mother's contention in appeal No. 2 that the court erred in failing to establish a regular and frequent visitation schedule between her and the child and instead ordering supervised visitation as agreed and arranged between the mother and the grandmother. "Although ‘[a] court cannot delegate its authority to determine visitation to either a parent or a child’ ... it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances" ( Matter of Kelley v. Fifield, 159 A.D.3d 1612, 1613, 72 N.Y.S.3d 754 [4th Dept. 2018] ). The record here does not show that the visitation arrangement is untenable under the circumstances (see Matter of Pierce v. Pierce, 151 A.D.3d 1610, 1611, 56 N.Y.S.3d 703 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4654065 [2017] ). If the mother is unable to obtain visitation, she may file a petition seeking to enforce or modify the order (see Kelley, 159 A.D.3d at 1613, 72 N.Y.S.3d 754 ; Pierce, 151 A.D.3d at 1611, 56 N.Y.S.3d 703 ; Matter of Thomas v. Small, 142 A.D.3d 1345, 1346, 38 N.Y.S.3d 461 [4th Dept. 2016] ).