State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 20, 2016 522042 

 520847

________________________________

In the Matter of EVELYN EE.,

Appellant,

v

AYESHA FF.,

Respondent.

(Proceeding No. 1.)

________________________________

In the Matter of JODY CC.,

Respondent,

v

EVELYN EE.,

Appellant,

and

MEMORANDUM AND ORDER

SCHENECTADY COUNTY DEPARTMENT

OF SOCIAL SERVICES,

Respondent.

(Proceeding No. 2.)

________________________________

In the Matter of KARMA EE.,

Alleged to be a Neglected 

Child.

SCHENECTADY COUNTY DEPARTMENT

OF SOCIAL SERVICES,

Respondent;

EVELYN EE.,

Appellant.

(Proceeding No. 3.)

________________________________
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In the Matter of AYESHA FF.,

Respondent,

v

EVELYN EE.,

Appellant.

(Proceeding No. 4.)

________________________________

In the Matter of KARMA EE. and

Another, Alleged to be

Neglected Children.

SCHENECTADY COUNTY DEPARTMENT

OF SOCIAL SERVICES,

Respondent;

EVELYN EE.,

Appellant.

(Proceeding No. 5.)

________________________________

In the Matter of KARMA EE. and

Another, Alleged to be

Neglected Children.

SCHENECTADY COUNTY DEPARTMENT

OF SOCIAL SERVICES,

Respondent;

EVELYN EE.,

Appellant.

(Proceeding No. 6.)

________________________________

Calendar Date: September 15, 2016
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Before: Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

__________

Paul J. Connolly, Delmar, for appellant.

Karen R. Crandall, Glenville, for Ayesha FF., respondent.

Timothy J. Brennan, Schenectady, for Jody CC., respondent.

Christopher H. Gardner, County Attorney, Schenectady

(Frank S. Salamone of counsel), for Schenectady County Department

of Social Services, respondent.

Alexandra G. Verrigni, Rexford, attorney for the children.

__________

Egan Jr., J.

Appeals (1) from an order of the Family Court of

Schenectady County (Skoda, J.), entered November 6, 2014, which,

among other things, dismissed petitioner's application, in

proceeding No. 1 pursuant to Family Ct Act article 6, to modify a

prior order of custody, and (2) from an order of said court,

entered March 2, 2015, which, among other things, (a) granted

petitioners' applications, in proceeding Nos. 2 and 4 pursuant to

Family Ct Act article 6, for custody of the subject children, and

(b) granted petitioner's applications, in proceeding Nos. 3, 5

and 6 pursuant to Family Ct Act article 10, to adjudicate the

subject children to be neglected.

Evelyn EE. (hereinafter the mother) has five biological

children, three of whom – Lilith EE. (born in 2005), Karma EE.

(born in 2013) and Aiden EE. (born in 2014) – are the subjects of

these appeals. Following Lilith's birth, questions were raised

regarding the mother's allegedly untreated mental health issues,

as the result of which the mother eventually consented to placing

the child in the custody of the mother's half sister (hereinafter
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the aunt). In August 2009, the mother commenced the first of

these six proceedings seeking to regain custody of Lilith. 

Although Family Court (Taub, J.H.O.) dismissed the petition for

failure to state a cause of action, this Court reversed, directed

that the petition should be reinstated and, in May 2013, remitted

the matter to Family Court for further proceedings.1

In the interim, Karma was born and, within days of her

birth, was temporarily removed from the mother's home – on

consent – and placed with a close family friend.2 Shortly

thereafter, the friend commenced proceeding No. 2 in April 2013

seeking sole custody of Karma, and the Schenectady County

Department of Social Services (hereinafter DSS) commenced

proceeding No. 3 alleging that the mother had derivatively

neglected Karma.3 Following Aiden's birth, the aunt commenced

proceeding No. 4 in August 2014 seeking sole custody of the child 

– citing the mother's alleged mental instability and substance

abuse, as well as the fact that the aunt already had custody of

1 The mother subsequently amended her petition in July

2013.

2 Following a hearing pursuant to Family Ct Act § 1028,

Karma was returned to the mother's care in July 2013. In

December 2013, the Schenectady County Department of Social

Services again sought to remove Karma from the mother's care –

this time because the mother had tested positive for cocaine in

September 2013. Following a second hearing, Family Court granted

that request, removed Karma from the mother's care and again

placed the child with the family friend.

3 The derivative neglect allegation stemmed from a March

2013 adjudication of neglect with respect to one of the mother's

other children, Devon EE. (born in 2010). The incident involving

Devon occurred in October 2011, at which time the child was

discovered crying in a stroller while the mother, who was

described as highly intoxicated, was passed out on a grassy area

adjacent to a city street (Matter of Devon EE. [Evelyn EE.], 125

AD3d 1136 [2015], lv denied 25 NY3d 904 [2015]).
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two of Aiden's siblings. DSS, in turn, commenced proceeding Nos.

5 and 6 alleging – in virtually identical petitions – that the

mother had neglected Karma and Aiden. Specifically, the

petitions alleged that, on August 4, 2014, while acting as the

sole caretaker for the children, the mother had a blood alcohol

content of .14%. Combined hearings on the various petitions

thereafter followed.

By order entered November 6, 2014, Family Court (Skoda,

J.), among other things, dismissed the mother's petition in

proceeding No. 1 seeking custody of Lilith and, after finding

both that extraordinary circumstances existed to divest the

mother of custody and that the child's best interests would be

served by continuing her placement with her aunt, awarded sole

legal and physical custody of Lilith to the aunt with supervised

visitation to the mother. Thereafter, by order entered March 2,

2015, Family Court, among other things, granted the friend's and

the aunt's respective petitions – in proceeding Nos. 2 and 4 –

for custody of Karma and Aiden and awarded sole legal and

physical custody of Karma to the family friend (with supervised

visitation to the mother) and sole legal and physical custody of

Aiden to the aunt (with supervised visitation to the mother). 

Such awards also constituted Family Court's disposition of the

then pending neglect petitions with respect to Karma and Aiden

(proceeding Nos. 5 and 6) (see Family Ct Act § 1055-b [a] [v]

[A]).4 These appeals by the mother ensued.

Preliminarily, we reject the mother's assertion that she

was denied the right to counsel. On the second day of hearings,

the mother advised Family Court that she was "having some issues"

with assigned counsel and requested either that counsel be

replaced or that "something . . . be done" because counsel was

refusing to subpoena certain witnesses or documentary evidence

upon her behalf. In response, counsel advised the court that he

4 Family Court previously had adjudicated Karma and Aiden

to be neglected children and combined the dispositional hearing

for those neglect proceedings with the then pending custody

hearing for those children.
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did not believe that the requested witnesses/evidence – to the

extent that such proof was even relevant – would reflect

favorably upon the mother and, in his professional judgment,

acquiescing to the mother's wishes would not be in her best

interests. Following an extended colloquy, during the course of

which the potential consequences of pursuing the requested

testimony and evidence were fully explored, and in response to

the mother's continued insistence that such witnesses/proof be

produced, Family Court directed counsel to issue subpoenas

accordingly. Three of the four requested witnesses then appeared

and testified.

Despite having obtained the very relief that she so

persistently requested, the mother now argues that Family Court,

by directing counsel to follow his client's expressed wishes and

issue the subject subpoenas, effectively overruled counsel's

professional judgment and, in so doing, deprived the mother of

her right to counsel. We disagree. The mother had the benefit

of counsel – and his professional judgment – throughout the

course of these proceedings (compare Matter of Deon M. [Vernon

B.], 68 AD3d 1740, 1741-1742 [2009]),5 and our review of the

record confirms that counsel at all times endeavored to zealously

represent his client and safeguard the mother's best interests –

despite her insistence in pursuing lines of inquiry that were

only tangentially relevant to the issues before Family Court. 

Under these circumstances, we find no deprivation of the mother's

constitutional or statutory right to counsel. To the extent that

the mother's brief may be read as asserting an ineffective

assistance of counsel claim, we find any argument on this point

to be equally lacking in merit.

5 Notably, the mother affirmatively indicated that she

wished for assigned counsel to continue to represent her and, in

any event, a disagreement as to trial strategy does not

constitute good cause for the substitution of counsel (see Matter

of Wiley v Musabyemariya, 118 AD3d 898, 900-901 [2014], lv denied

24 NY3d 907 [2014]).
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With respect to custody of Lilith (proceeding No. 1),6

"[i]t 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" (Matter of Peters v Dugan, 141

AD3d 751, 752 [2016] [internal quotation marks and citations

omitted]; see Matter of Renee TT. v Britney UU., 133 AD3d 1101,

1102 [2015]). The burden of proving extraordinary circumstances

rests with the nonparent (see Matter of Battisti v Battisti, 121

AD3d 1196, 1197 [2014]) – here, the aunt – and examples of such

extraordinary circumstances include, among other things, "failing

to address serious substance abuse or mental health issues"

(Matter of Renee TT. v Britney UU., 133 AD3d at 1103) or failing

"either to maintain substantial, repeated and continuous contact

with the child or to plan for the child's future" (Matter of

Rodriguez v Delacruz-Swan, 100 AD3d 1286, 1288 [2012] [internal

quotation marks, brackets and citation omitted]).

The aunt testified that the mother and Lilith came to

visit her for a weekend when the child was approximately one

month old; the mother left, and Lilith remained with the aunt. 

On the child's first birthday in 2006, the aunt filed for

custody, in response to which the mother accused the aunt of

kidnapping. Although Lilith was returned to the mother's custody

for approximately one year, the aunt regained custody of the

child at some point in 2007, and Lilith has lived with her

continuously since that time. The aunt testified that, during

the seven years that preceded the 2014 custody hearing, the

mother had limited contact with the child – specifically, the

mother engaged in supervised visits with Lilith on only a

sporadic basis, failed to attend any of the child's school

conferences, concerts, activities or birthday parties, rarely

6 According to Family Court, the aunt previously was

awarded custody of Lilith on consent in August 2008. As no prior

finding of extraordinary circumstances had been made, the aunt

bore the burden of demonstrating such circumstances here (see

Matter of Smith v Anderson, 137 AD3d 1505, 1507 n 4 [2016]).
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spoke with the child by phone, did not send the child any cards

or letters and, at one point, allowed two years to elapse without

seeing the child.

Although the mother disputed the aunt's account, contended

that she saw the child on a more frequent and consistent basis

and attributed the two-year gap in visitation to an inability to

locate the aunt, such testimony presented a credibility issue for

Family Court to resolve (see e.g. Matter of Shana SS. v Jeremy

TT., 111 AD3d 1090, 1092 [2013], lv denied 22 NY3d 862 [2014]). 

In our view, the prolonged disruption in custody, coupled with

the mother's failure to maintain substantial and continuous

contact with the child and to adequately address her longstanding

substance abuse and mental health issues (to be discussed infra),

is sufficient to establish the extraordinary circumstances

required to divest the mother of custody. Finally, based upon

our review of the record as a whole, we agree that Lilith's best

interests are served by an award of custody to the aunt. 

Accordingly, the mother's petition in proceeding No. 1 was

properly dismissed.

As for the neglect petitions relative to Karma and Aiden

(proceeding Nos. 3, 5 and 6), "a finding of neglect will be

sustained if the petitioner demonstrated, by a preponderance of

evidence, that the children's physical, mental or emotional

condition was harmed or is in imminent danger of such harm as a

result of the parent's or caretaker's failure to exercise the

minimum degree of care that a reasonably prudent person would

have used under the circumstances. Notably, a finding of neglect

does not require actual injury or impairment, but only an

imminent threat that such injury or impairment may result, which

can be established through a single incident or circumstance"

(Matter of Dylynn V. [Bradley W.], 136 AD3d 1160, 1161-1162

[2016] [internal quotation marks, brackets and citations

omitted]; see Matter of Daniel X. [Monica X.], 114 AD3d 1059,

1060 [2014]). Derivative neglect, in turn, "is established where

the evidence demonstrates an impairment of parental judgment to

the point that it creates a substantial risk of harm for any

child left in that parent's care, and the prior neglect

determination is sufficiently proximate in time to reasonably
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conclude that the problematic conditions continue to exist"

(Matter of Xiomara D. [Madelyn D.], 96 AD3d 1239, 1240 [2012]

[internal quotation marks and citations omitted]; accord Matter

of Neveah AA. [Alia CC.], 124 AD3d 938, 939 [2015]; see Matter of

Ilonni I. [Benjamin K.], 119 AD3d 997, 997 [2014], lv denied 24

NY3d 914 [2015]).

The initial neglect petition filed with respect to Karma

alone (proceeding No. 3), which was filed shortly after the

child's birth in 2013, was based upon the prior finding of

neglect against the mother as to Devon, as well as the mother's

failure to successfully address her ongoing mental health and

substance abuse issues. As noted previously, the prior

adjudication of neglect as to Devon – made in March 2013 –

stemmed from the October 2011 incident wherein the mother was

discovered passed out on a grassy area adjacent to a city street

while her child was crying in a stroller for approximately 45

minutes (see note 3, supra). Although the mother claimed to have

consumed only three drinks on the evening in question and

attributed her slurred speech and agitated demeanor to certain

medications that she then was taking, subsequent testing revealed

a blood alcohol content of .16%. 

Regardless of whether the prior neglect of Devon is

measured from the date of its occurrence (October 2011) or the

date of the resulting neglect adjudication (March 2013), we are

satisfied that such neglect is sufficiently proximate in time to

reasonably conclude that the problematic conditions affecting the

mother, i.e., her substance abuse, still exist. As this Court

has consistently held, "there is no bright-line, temporal rule

beyond which we will not consider older child protective

determinations" (Matter of Ilonni I. [Benjamin K.], 119 AD3d at

998 [internal quotation marks and citations omitted]; accord

Matter of Iryanna I. [Benjamin K.], 132 AD3d 1096, 1097 [2015];

Matter of Sumaria D. [Madelyn D.], 121 AD3d 1203, 1204 [2014]),

and we are satisfied that the record as a whole supports Family

Court's finding that the mother had ongoing and unaddressed
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substance abuse issues.7 

Further support for Family Court's finding of neglect as

to Karma may be found in the proof adduced with respect to the

mother's mental health issues. The mother, by her own admission,

has been hospitalized three times for mental health issues – most

recently following the birth of Lilith in 2005 – and has two

prior suicide attempts. In addition to suffering from attention

deficit hyperactivity disorder and epilepsy, the mother testified

that she has been diagnosed with posttraumatic stress disorder,

authority defiance disorder8 and seasonal depression – the latter

of which, according to the mother, subsequently was reclassified

as bipolar disorder and borderline personality disorder. 

Although the mother admittedly was – at the time of the

underlying hearings – seeing a mental health counselor "[m]aybe

once every other month," a DSS caseworker testified that the

mother denied having any mental health issues – contending

instead that "they were lies" made up by a particular DSS case

7 In reaching this conclusion, we have not considered the

mother's September 2013 positive screen for cocaine or her August

2014 positive screen for alcohol, as such proof postdates the May

2013 neglect petition filed in proceeding No. 3 and there does

not appear to have been a motion to conform the pleadings to the

proof (compare Matter of Alexander Z. [Melissa Z.], 129 AD3d

1160, 1161-1162 [2015], lv denied 25 NY3d 914 [2015]). Those

subsequent screening results, however, were properly admitted

with respect to the August 2014 neglect petitions filed with

respect to Karma and Aiden in proceeding Nos. 5 and 6, as well as

in the context of the August 2014 custody petition filed with

respect to Aiden (proceeding No. 4).

8 The mother succinctly stated, "I have a problem with

authority." When questioned on this point, the mother indicated

that "authority" usually included DSS and law enforcement

officials but, depending upon the circumstances, could extend to

Family Court if she felt that she was "being wronged." As to her

relationship with her various family members, the mother stated,

"We don't exactly get along at all, any of us."
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manager. Under these circumstances, we have no quarrel with

Family Court's finding of neglect as to Karma in proceeding No.

3.

Additional (and virtually identical) neglect proceedings

were commenced in August 2014 with respect to both Aiden and

Karma (proceeding Nos. 5 and 6) – citing the mother's ongoing

substance abuse and her failure to adopt safe sleeping habits

with respect to the then infant Aiden. As to the issue of

substance abuse, the mother insisted that she consumed alcohol

only in moderation and denied any illegal drug use since she was

a teenager. The proof adduced at the hearing, however,

established that, as noted previously, the mother had a positive

alcohol screen in October 2011 (with a blood alcohol content of

.16%), a positive screen for cocaine in September 2013 and

another positive alcohol screen in August 2014 (revealing a blood

alcohol content of .14%). Notably, the August 4, 2014 screen

resulted when a service provider arrived at the mother's

residence that day to facilitate a supervised visitation with

Karma and discovered the mother, who had recently given birth to

Aiden, stumbling, slurring her words and smelling of alcohol.9

Although the mother denied alcohol use on that date, again

contending that her observed condition was a side effect of

either her medications, her speech impediment or the fact that

she was not wearing her knee brace, the service provider

testified that she "observed beer cans lined up on the counter"

in the kitchen and "a white powder on the floor." Additional

testimony revealed that, although the mother had been instructed

that there were to be no blankets in Aiden's crib unless he was

swaddled, the child was found on the day in question – covered

with a loose blanket – in a crib containing toys. Inasmuch as

the record clearly reflects either an inability or an

unwillingness on the part of the mother to, among other things, 

effectively address and resolve her well-documented substance

abuse issues, we have no quarrel with Family Court's adjudication

of neglect as to Karma and Aiden in proceeding Nos. 5 and 6.

9 This incident was the impetus behind the commencement of

proceeding Nos. 4, 5 and 6.
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Finally, as to the family friend's request for custody of

Karma (proceeding No. 2) and the aunt's request for custody of

Aiden (proceeding No. 4), as well as with respect to the

dispositions fashioned in the aforementioned neglect proceedings,

we are satisfied that the record supports a finding of

extraordinary circumstances – specifically, the prior findings of

neglect made against the mother, the mother's failure to address

her ongoing substance abuse issues and her unresolved mental

health issues – sufficient to divest the mother of custody. 

Further, upon reviewing the relevant testimony, we are satisfied

that awarding custody of Karma to the family friend and awarding

custody of Aiden to the aunt is in the children's respective best

interests. The mother's remaining contentions, to the extent not

specifically addressed, have been examined and found to be

lacking in merit.

Peters, P.J., Lynch, Rose and Aarons, JJ., concur.

ORDERED that the orders are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court