State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 22, 2015 518405 

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In the Matter of LISA UU. et al.,

Respondents,

v MEMORANDUM AND ORDER

SARAH VV.,

Appellant.

(And Another Related Proceeding.)

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Calendar Date: September 11, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

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Norbert A. Higgins, Binghamton, for appellant.

Law Office of Carman Garufi, Binghamton (Alena E. Van Tull

of counsel), for respondents.

Allen E. Stone, Vestal, attorney for the child.

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McCarthy, J.P.

Appeal from an amended order of the Family Court of Broome

County (Connerton, J.), entered January 16, 2014, which, among

other things, granted petitioners' application, in a proceeding

pursuant to Family Ct Act article 6, for custody of the subject

child.

Respondent (hereinafter the mother) is the mother of the

subject child (born in 2009). Petitioner Lisa UU., a licensed

daycare provider, and petitioner Alan UU. are a married couple

with no familial relation to the subject child. Petitioners have

had temporary custody of the child since September 2012, when the
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mother voluntarily gave them such custody before she went to a

rehabilitation facility for drug addiction treatment.1 At that

time, the mother executed a document giving petitioners

permission to take temporary custody of the child for a period of

180 days. Petitioners commenced this proceeding for permanent

custody in October 2012 and, in January 2013, the mother

commenced a proceeding seeking the return of the subject child to

her custody. Family Court held hearings and thereafter awarded

petitioners custody of the child and dismissed the mother's

application. The mother now appeals.

The mother's sole contention is that evidence related to

her drug use did not rise to the level of extraordinary

circumstances sufficient to overcome the presumption in favor of

her custody. We disagree. "[A] parent has a claim of custody of

his or her child that is superior to that of all others, absent

surrender, abandonment, persistent neglect, unfitness, disruption

of custody over a prolonged period of time or the existence of

other extraordinary circumstances" (Matter of Sweeney v Sweeney,

127 AD3d 1259, 1260 [2015]; see Matter of Battisti v Battisti,

121 AD3d 1196, 1196-1197 [2014]). Nonparents seeking custody

bear the burden of proof for establishing extraordinary

circumstances (see Matter of Sweeney v Sweeney, 127 AD3d at 1260;

Matter of Aylward v Bailey, 91 AD3d 1135, 1136 [2012]).

The mother acknowledged that she is a drug addict and

related that her drug of choice is heroin, which she testified to

have begun using when she was 20 years old. She testified that

she has been in recovery since 2011, but has relapsed twice. 

According to the mother, her longest period of sobriety was 15

months. A drug abuse counselor who testified on behalf of the

mother identified the mother, at that time, as "kind of sober." 

The mother acknowledged that, within the previous year, there was

an entire month that she could not remember due to her drug use. 

She further acknowledged that she had been tasked with being the

primary care provider for her children during portions of that

1

 The parental rights of the child's father were previously

terminated.
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same month.2 Further, the mother specifically acknowledged that

she had relinquished the child's care to other persons during

periods where she was using drugs because she was unable to

provide the necessary care to the child. This evidence that the

mother had not consistently maintained sobriety, that she was not

maintaining complete sobriety at the time of the hearing and that

her drug use had affected her ability to provide sufficient care

for the child satisfied petitioners' burden of establishing

extraordinary circumstances (see Matter of Sweeney v Sweeney, 127

AD3d at 1261; Matter of Komenda v Dininny, 115 AD3d 1349, 1350

[2014]; Matter of Diana B. v Lorry B., 111 AD3d 927, 928 [2013],

lv denied 22 NY3d 863 [2014]; Matter of Ettari v Peart, 110 AD3d

1256, 1257 [2013]).

Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the amended order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

2 The custody of the mother's additional children is not

at issue.