Opinion
11-10-2016
In the Matter of Victoria THOMAS, Petitioner–Respondent, v. Jecarl ARMSTRONG, et al., Respondents, and Rosetta Bryant, Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Respondent–Appellant. Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Petitioner–Respondent. Tanya J. Conley, Attorney for the Children, Rochester.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Respondent–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Petitioner–Respondent.
Tanya J. Conley, Attorney for the Children, Rochester.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that granted custody of the subject children to petitioner, the children's maternal grandmother, with supervised visitation 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, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). Contrary to the mother's sole contention on appeal, we conclude that the grandmother met her burden of establishing the existence of extraordinary circumstances. The record establishes that the mother suffers from ongoing and chronic mental health issues, “which she has failed to address adequately” (Matter of Johnson v. Streich–McConnell, 66 A.D.3d 1526, 1527, 886 N.Y.S.2d 539 ; see generally Matter of Beth M. v. Susan T., 81 A.D.3d 1396, 1397, 917 N.Y.S.2d 466 ; Matter of Brault v. Smugorzewski, 68 A.D.3d 1819, 1819, 890 N.Y.S.2d 866 ). The mother also has a history of alcohol abuse (see Matter of Komenda v. Dininny, 115 A.D.3d 1349, 1350, 983 N.Y.S.2d 188 ; Beth M., 81 A.D.3d at 1397, 917 N.Y.S.2d 466 ), as well as a history of “ ‘persistent neglect of the child[ren]'s health and well-being’ ” (Matter of Barnes v. Evans, 79 A.D.3d 1723, 1723–1724, 914 N.Y.S.2d 487, lv. denied 16 N.Y.3d 711, 2011 WL 1643301 ). The evidence in the record establishes that the mother's issues resulted in an “ unfortunate [and] involuntary disruption of custody over an extended period of time” ( bennett, 40 n.y.2d at 546, 387 N.y.s.2d 821, 356 N.E.2d 277 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.