WHEN GRANDMA BECOMES GUARDIAN OF GRANDCHILDREN

Matter of Chariss C. v Jose G. 2021 NY Slip Op 50757(U) Decided on August 6, 2021 Family Court, Kings County Vargas, J:

"Upon the foregoing papers, the evidentiary virtual bench trial presided by the undersigned from August 28, 2020 to June 24, 2021, the exhibits admitted into evidence and for the following reasons, the Petition by Petitioner Chariss C. (hereinafter "Grandmother"), for sole guardianship of the subject Children, is granted in accordance with the following decision.

I.

The following facts are essentially undisputed. While residing at the Grandmother's house, Respondent Courtney C. (hereinafter "Mother") gave birth out-of-wedlock to the subject Children, born in 2010 and 2013. The Father of the Children is Respondent Jose G. (hereinafter "Father"), but he has rarely been involved or provided for the Children. It has been the Grandmother and her husband, Marion Jackson, who primarily provided for the Children's support, food, housing and education. Although the Mother and the Children were living with the Grandmother and her husband, the Mother unexpectedly left the residence with the Children in September 2018 without divulging their whereabouts or permitting visitation with the Children.

As a result, by Petitions for Appointment of Guardian of the Person dated May 9, 2019, the Grandmother commenced the instant Guardianship proceedings seeking to be appointed guardian for the Children, alleging that she can provide a stable and loving environment for the Children because they have always resided with her, the Mother "has mental issues that are unresolved," and the Father "has not been part of their lives." Both the Mother and Father initially appeared to answer and opposed the Petitions, and County Law § 18B counsel were promptly appointed to them as well as for the Children by the Children's Law Center. However, the Father continuously declined to cooperate with his counsel or fully participate in the proceedings and was eventually defaulted. Commencing in June 2019, the Undersigned issued Temporary Orders of Guardianship in favor of the Grandmother for her to make residential, medical and educational decisions for the Children, while providing for day visitation to the Mother, which the Court continued throughout the proceedings. Problems arose based on the Mother's repeated refusal to cooperate in enrolling the Children in school and in providing their prescribed medications to the Grandmother, requiring repeated court intervention.

In accordance with the requirements of the Surrogate's Court Procedure Act, the Court received New York State Central Registry results clearing the Grandmother and all persons over the age of 18 residing in the home of any child abuse or maltreatment. The Mother, who had an indicated report for lack of medical care in 2013, was transient during the proceedings, living with her Paternal Grandmother, Selena Lofton, as of May 2019, then a maternal aunt in Long Island until December 2020, and now with her cousin. Given the allegations made against the Mother and the Grandmother, this Court ordered and received two Court Ordered Investigations ("COI") dated September 18, 2019 and September 25, 2020, prepared by the New York City Administration of Children's Services. Among other things, both COI Reports reflect that the [*2]Grandmother has been the primary caretaker of the Children, who are thriving in her home, while the Mother had a history of domestic violence allegations against her, the past indicated report of neglect, and her residences could not be properly evaluated despite repeated attempts.

While the case was sub judice, the terrible Covid-19 Pandemic descended upon the World temporary paralyzing nonemergency matters pending in all New York courts, and thereby requiring the implementation of virtual proceedings and conferences using Skype and then Microsoft Teams platforms. All counsel and parties in the Family Court became proficient and began utilizing the virtual format for their pending proceedings. Several conferences were held virtually in this case via Teams before the Undersigned from home, Chambers and then from the empty courtroom.

II.

Despite the Mother's inadequacies and failure to engage in visitation with the Children, she recalcitrantly argued for sole custody and guardianship of the Children. Hence, the highly contested hearing between the Grandmother and the Mother commenced on August 28, 2020 in a virtual fashion via Microsoft Teams, without objection. At the commencement of the trial, the Grandmother testified virtually that the Children have been living with her all their life and with the Mother in their three-bedroom apartment. She resides there with her husband and the Children, who each has his own bedroom. The Grandmother, who is employed by the U.S. Postal Service, and her husband, a supervisor at a real estate company, have financially supported the Children, given the Mother's irregular and sporadic employment. In fact, the Grandmother testified that the Mother has never financially supported the Children, send them letters or cards, or bought them any clothes or food. She analogized the Mother as merely a babysitter for the Children while Grandmother worked. It was the Grandmother who enrolled the Children in school full time and provided medical coverage for them.

The Grandmother further testified that early on she noticed that the older Child was nonverbal, nor progressing or developing in a normative way, and she made doctors' appointments and scheduled therapy sessions, which eventually rendered a diagnosis of pervasive development disorder and autism. The Mother will sometimes go to the appointments, but it was the Grandmother who arranged for the Child to receive early intervention, several speech and occupational therapies, and at home services. Currently, the Older Child attends a special school, while the younger graduated from special education to the regular educational program at P.S. 156. Since March 2020, they were attending school remotely and eventually will be attending in person as arranged by the Grandmother. As for medical coverage, the Children receive Medicaid and Health Plus insurance, more specifically Empire Blue Cross Blue Shield.

The Grandmother further testified that she continued to worry about the Children after the Mother left her home in September 2018, without divulging their new address. In fact, the Mother did not have a permanent place for her Children to reside due to her transient nature — she lived with the Paternal Grandmother, Elenore W., in East New York, the Great Grandmother, and then recently with an aunt in Long Island from where she was kicked out in [*3]December 2020. The Grandmother further testified that Mother only calls her home to harass, curse and accuse her of wrongfully taking her Children over "80 times," sometimes more than once a day "depending on her mood." However, the Mother never discussed the Children, their wellbeing and rarely visited them. According to the Grandmother, the Mother gets fixated with things and has exhibited signs of mental illness from the early age of 18, due to her exposure as a child to high levels of lead. She has continuously refused treatment or any help. The Grandmother surmised that the Mother exposed herself to high levels of lead as a four-year-old child when she ate dirt and paint chips, and "used Styrofoam cups." The Mother never finished school, was not working for over seven years and rarely took care of the Children.

Due to Mother's illness and her ongoing kidney infection, trial dates scheduled during the Covid Pandemic for October and December 2020 did not go forward. The trial resumed on February 11, 2021, with the Grandmother testifying that she is concerned about the Mother's ability to care for the Children because of her current health and mental conditions, and her lack of patience to deal with them. Grandmother explained that the "Mother has to take care of herself before taking the Children." While she has encouraged and brought the Children to visit with the Mother, the Mother failed to visit regularly and did not see them for over six months at one time during the Pandemic. At the close of Grandmother's case, she and the Attorney for the Child moved for a directed verdict arguing that there is prima facie proof of guardianship given the Mother's abandonment, but this Court denied the oral application after oral argument.

Thereafter, the Mother began her testimony confirming that she left the Grandmother's house with the Children in September 2018, but stating that she always provided visits for the Grandmother. The Mother testified that after Grandmother obtained temporary guardianship of the Children, she made it difficult for the Mother to see and visit with the Children, despite her coming 30 to 40 times to Brooklyn from Long Island; she wanted to take the Children to Long Island. She moved out of her Paternal Grandmother's house because they were not getting along and that a similar situation arose with her Aunt in Long Island. She acknowledged that she suffers from an illness of chronic inflammation of the kidneys, Pyelonephritis, and has been hospitalized over nine times, once during the trial. She denied having any mental difficulties and proposed that the Father and other relatives could assist her with the Children whenever medically or otherwise indisposed.

The virtual bench trial continued April 22, 2021, with the Mother testifying that she wants the Children back in her care, even though she has no stable housing. On cross examination, the Mother acknowledged moving to three different places in two years, and that she had five different jobs during the same time-period. Although Mother testified on April 22nd that she is retail specialist manager, she appeared in virtual court on June 24, 2021 in a grey uniform, testifying that she was then a security guard. As for housing, Mother testified that she is now living with her cousin in Brooklyn because Long Island was "not a good environment for her." Relevantly, the Mother admitted to not visiting the Children for a while, nor asking about or knowing where they go to schools since 2019, their teachers or what therapies they are currently receiving. She did not know Jeremy's school or whether he was getting therapy and services at home.

The Mother further testified that since 2020, she has not had mental health issues, but goes to a psychotherapist twice a week on a volunteer basis to deal with her stress and lack of patience. On cross examination, the Mother acknowledged that she saw the Children only two or three times while living on Long Island, and did not visit or see them at all during the Pandemic between March 2020 and August 2020. Then, she contradicted herself by saying that she sees them "pretty often" and electronically via video conferences. Once, she went to the Child's school to get some documents to apply for an apartment for her to live, but was asked to leave by school authorities after causing a commotion for their refusal to provide her with the documents. The Mother denied retaining any of the Children's benefits or food stamps, and did not provide financial help to the Grandmother because she never asked for the same. She claimed to have sent food and clothing for their benefit. She then revealed that she is looking for an apartment but does not want the Grandmother to know where she would be living.

In rebuttal, the Grandmother provided documentary evidence that the Mother had retained some of the Children's disability benefits and food stamps in June 2020, even though the Grandmother had guardianship and was entitled to the benefits herself. After the rebuttal testimony, the bench trial was concluded on June 24, 2021 with only the Mother and Grandmother testifying. After oral summations, the Court reserved decision. While each party predictably asks for guardianship for themselves, the Attorney for the Child supports a grant of sole guardianship to the Grandmother. This Court agrees.

III.

"As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances" (Matter of Kaylub T. [Erik C.-Mandy C.], 150 AD3d 862 [internal quotation marks omitted]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 549; Matter of Linda S.M. v. Demetrius W., 160 AD3d 860 [2nd Dept. 2013). This standard applies where, as here, a parent opposes the petition of a nonparent seeking guardianship (see generally Matter of Joel T. v Miriam T., 163 AD3d 828 [2nd Dept. 2018]; Matter of Roberta W. v Carlton McK., 112 AD3d 729 [2nd Dept. 2013]). "Whether extraordinary circumstances exist involves the consideration of various factors, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role" (Matter of Thompson v Bray, 148 AD3d 1364, 1365 [3rd Dept. 2017]; see Matter of Samuels v Pegues, 173 AD3d 1040, 1041 [2nd Dept. 2019]). "The burden of proof is on the nonparent to prove such extraordinary circumstances" (Matter of Rudy v Mazetti, 5 AD3d 777, 778 [2nd Dept. 2004]; see Matter of Rovenia G.M. v. Lesley P.A., 44 AD3d 942 [2nd Dept. 2007]). "Once there is a finding of extraordinary circumstances, a best interests determination is triggered" (id. at 778; see Matter of Joel T. v Miriam T., 163 AD3d at 828). When considering guardianship appointments, the children's best interests are paramount (see Surrogate Court Procedure Act § 1707; Matter of Deven Meza F., 108 AD3d 701 [2nd Dept. 2013]).

Applying these principles to the matter at bar, the Grandmother has sufficiently established the existence of extraordinary circumstances and that she must be the Children's guardian. With her credible testimony and exhibits, the Grandmother satisfied her burden of [*4]establishing extraordinary circumstances on the basis of the evidence of the Father and Mother's failure to provide for the Children's emotional and financial needs, their failure to visit the Children in a consistent way and their disregard for the Children's education, housing stability and medical issues (see Matter of Dellolio v Tracy, 35 AD3d 737, 738 [2nd Dept. 2006]; Matter of Campo v Chapman, 24 AD3d 439, 440 [2nd Dept. 2005]). The record reflects that the Mother admitted to moving to three different places and navigating through five different jobs in the last two years. She failed to consistently visit with the Children, even declining to visit them for six whole months. The Grandmother also credibly testified about — and this Court perceived and observed — the Mother's apparent mental and chronic medical issues, her undisputed child protective and domestic violence history, and her concomitant inability to support and provide a stable environment for the Children.

On the other hand, there is ample evidence that the Children have developed a strong emotional bond with their Grandmother, who has supported and cared for them almost uninterruptedly since their birth in 2010 (see Matter of Campo v Chapman, 24 AD3d at 439). Although the Mother temporarily left the residence with the Children and disappeared for a while without divulging her whereabouts in 2018, she eventually returned them to the Grandmother essentially acknowledging that she could not provide them with permanent housing. While the Children were in Grandmother's care, the Mother contacted the Grandmother several times, but only to harass her and insult her without really asking about the Children. At the moment, the Mother is unable to provide any housing, whether temporary or permanent, for her Children. Nor does she have a stable and steady job which will permit her to financially support the Children.

The Mother further appears ill equipped to care for the Children due to her undisputed health issues. The Grandmother credibly testified that the Mother has exhibited signs of mental illness and bizarre behavior - observed by the Court throughout the proceedings - and has refused to seek help. The record reflects that Mother has been hospitalized over nine times in two years for physical reasons. The Court acknowledges that Mother suffers from a chronic medical condition. However, it is apparent that she has not made plans for the care of the Children should she need to be hospitalized for an extended period of time. She unrealistically suggested that the Father, who has not been involved in the Children's lives and not shown any interest in these proceedings, and her other relatives, whom she has alienated with her extended stays and behavior, would somehow provide her with help. With respect to Mother's mental condition, this Court referred Mother for a mental health evaluation on at least two occasions, on August 28, 2020. To date, Mother has not been evaluated as per this Court's directive. It is clear from this record that Mother is not equipped to take care of her Children because she does not have stable housing, a steady source of income nor the mental capacity to care for them.

Moreover, the record and testimony reveal the Grandmother's demonstrated stability and ability to care for the Children's special needs. Granting the Grandmother permanent guardianship of the Children is in their best interests because it is she who has taken the responsibility of meeting the children's basic and special needs. The Grandmother has taken care of the Children since birth, has financially supported the children. In the Grandmother's care, the Children are thriving, as they are enrolled in school full time, have medical coverage and are addressing their special circumstances. During the hearing, the Mother admitted to not knowing about the Children's education, schools or activities. She candidly acknowledges that she has not been to the Children's school since 2019 because she is not welcomed at the school by the [*5]principal. The Grandmother is the only one entitled to receive any social security benefits, child support, public assistance, food stamps or any other payments wrongfully retained by the Mother. To wit, Mother has never supported the Children, bought them clothes or provided any financial support.

Thus, the Grandmother is fully capable of caring for the physical, emotional, health and educational needs of the children. The Grandmother not only provides stable housing, but comfort and safety and has a good relationship with the Children. It is important to note that she wants the Children to have a relationship with their Mother and has facilitated that relationship. The Children visit their Mother on weekends and during times when school is not in session.

IV.

In accordance with the foregoing, the Court finds extraordinary circumstances, grants the Grandmother's Petition for Guardianship, and determines that the best interests of the Children require that they be placed in the permanent guardianship of the Grandmother until they turn 18 years of age.

The Grandmother shall be the sole permanent Guardian of the Children.

The Grandmother shall be solely responsible for decision-making regarding the Children's education, religion, medical issues, residence, and extracurricular activities.

The Mother shall continue to have liberal weekend visitation with the Children as agreed upon between the parties.

The Mother is not to interfere with the Grandmother's care and custody of the Children, especially to refrain from taking the Children out of school without authorization, making medical appointments or changing their prescriptions.

The Mother is permitted to obtain the Children's school attendance records, report cards, and information on parent/teacher's conferences.

The foregoing constitutes the Decision and Order of this Court.

Dated: August 6, 2021

Brooklyn, New York

NOTICE:

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST."