State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 2, 2015 517431 

________________________________

In the Matter of JENNIFER

SWEENEY,

Appellant,

v

PATRICIA SWEENEY et al.,

Respondent,

et al.,

Respondent.

(Proceeding No. 1.)

________________________________ MEMORANDUM AND ORDER

In the Matter of JENNIFER

SWEENEY, 

Appellant,

v

KATHY DAUB-STEARNS et al.,

Respondents.

(Proceeding No. 2.)

________________________________

Calendar Date: February 17, 2015

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

__________

Jane M. Bloom, Monticello, for appellant.

Monte J. Rosenstein, Middletown, for Patricia Sweeney,

respondent.

E. Danielle Jose Decker, Monticello, attorney for the

children.

__________
-2- 517431 

Devine, J.

Appeal from an order of the Family Court of Sullivan County

(Meddaugh, J.), entered July 18, 2013, which, among other things,

dismissed petitioner's applications, in two proceedings pursuant

to Family Ct Act article 6, to modify two prior orders of

custody.

Petitioner (hereinafter the mother) and respondent Matthew

Daub (hereinafter the father) are the parents of Brianna (born in

2005) and Kayden (born in 2009). Due to the parents' ongoing

struggles with substance abuse and periods of incarceration, they 

consented to the appointment of permanent guardians for the

children. Respondent Patricia Sweeney, a maternal aunt, was

appointed guardian of Brianna and respondent Kathy Daub-Sterns,

the paternal grandmother who lived in Vermont, was appointed

guardian of Kayden. Both parents were awarded parenting time

with the children. The mother commenced two proceedings to

modify the prior guardianship orders, alleging that her

successful recovery from her substance abuse issues warranted the

children's return to her custody. Following a fact-finding

hearing and a Lincoln hearing with Brianna, Family Court

dismissed the petitions. The mother now appeals.

It is well settled that 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 (see Matter of Battisti v

Battisti, 121 AD3d 1196, 1196-1197 [2014]; Matter of Marcus CC. v

Erica BB., 107 AD3d 1243, 1244 [2013], appeal dismissed 22 NY3d

911 [2013]; Matter of Ferguson v Skelly, 80 AD3d 903, 904 [2011],

lv denied 16 NY3d 710 [2011]). The nonparent bears the burden of

demonstrating the existence of such extraordinary circumstances

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

which may include proof that the parent has neglected "to

maintain substantial, repeated and continuous contact with" the

children or make plans for their future (Matter of Mildred PP. v

Samantha QQ., 110 AD3d 1160, 1161 [2013] [internal quotation

marks and citation omitted]; accord Matter of Carpenter v

Puglese, 94 AD3d 1367, 1368 [2012]; Matter of Ferguson v Skelly,
-3- 517431 

80 AD3d at 905). 

Sweeney's testimony revealed that, in her two years of

caring for Brianna, it was not uncommon for the mother to

oversleep and arrive in an untimely manner when she was scheduled

to spend time with the child. Moreover, the evidence adduced at

the hearing demonstrated that the mother had not taken an active

interest in Brianna's daily life, including instances where the

mother neglected to respond appropriately to the child's medical

needs or become engaged in her educational and social pursuits. 

Similarly, Daub-Stearns averred that, after Kayden moved in with

her family, he was diagnosed and treated for attention deficit

hyperactivity disorder that required the creation of an

individualized educational program. The mother, however, refused

to acknowledge or take efforts to understand Kayden's special

needs. 

Family Court was reasonably concerned that, despite her

completion of rehabilitation for substance abuse, a parenting

class and related counseling, the mother had not demonstrated an

adequate appreciation of her parental duties and responsibilities

to the extent necessary for the return of the children to her

custody. In particular, the mother had made no attempt to secure

gainful employment or a means of transportation, and she stated

that she intended to seek government assistance in order to

support her family. Furthermore, at the time of the hearing, the

mother admitted to having consistently violated the terms of her

probation by traveling out-of-state to visit her brother – who

was awaiting sentencing upon his drug offense conviction –

without notifying her probation officer. Deferring to Family

Court's factual findings and credibility determinations (see

Matter of Kowalsky v Converse, 79 AD3d 1310, 1311 [2010]; Matter

of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d

1359, 1360 [2010], lv denied 15 NY3d 703 [2010]), we agree with

the court's conclusion that extraordinary circumstances existed

(see Matter of Battisti v Battisti, 121 AD3d at 1197-1198; Matter

of Carpenter v Puglese, 94 AD3d at 1369; Matter of James NN. v

Cortland County Dept. of Social Servs., 90 AD3d 1096, 1098

[2011]).
-4- 517431 

Moreover, Family Court properly determined that the

children's best interests would be served by their continued

placement with their guardians. While the separation of the

children was not ideal, the court was satisfied that the children

were able to see each other during monthly visits, and both

children have clearly benefitted from their respective home

environments where their unique needs were being addressed. 

Thus, we cannot say that the court abused its discretion in

concluding that a modification of the existing custody

arrangement would be contrary to the children's best interests

(see Matter of Battisti v Battisti, 121 AD3d at 1196-1197; Matter

of Marcus CC. v Erica BB., 107 AD3d at 1247; Matter of Golden v

Golden, 91 AD3d 1042, 1044-1045 [2012]).

McCarthy, J.P., Egan Jr. and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court