                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:    April 7, 2016                   520855
                                                        520833
________________________________

In the Matter of ERICK X.,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
KERI Y. et al.,
                     Respondents.

(And Another Related Proceeding.)
________________________________


Calendar Date:    February 17, 2016

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

                              __________


     Matthew C. Hug, Troy, for appellant.

     Jane M. Bloom, Monticello, for Keri Y., respondent.

      Daniel Gartenstein, Ulster County Department of Social
Services, Kingston, for Ulster County Department of Social
Services, respondent.

     Theodore Stein, Woodstock, attorney for the children.

                              __________


Lynch, J.

      Appeals from two orders of the Family Court of Ulster
County (McGinty, J.), entered March 16, 2015, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.
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      Petitioner (hereinafter the father) and respondent Keri Y.
(hereinafter the mother) are divorced parents of two children
born in 1999 (hereinafter child A) and 2002 (hereinafter child
B). Pursuant to a March 2011 order of custody, the mother had
sole custody of the children and the father was allowed ample
parenting time and access to medical and educational records. In
February 2013, after the father disciplined child A by repeatedly
striking her in the presence of child B and others, the father
pleaded guilty to assault in the third degree and endangering the
welfare of a child. He was placed on interim probation for one
year, and a temporary order of protection was issued requiring
him to stay away from both children for a period from February
2013 until September 2013. On November 6, 2013, Family Court
granted a Family Ct Act article 10 neglect petition filed against
the mother after determining that she tested positive for drugs
and smoked marihuana in the presence of child A. With the
father's apparent consent, the children were placed in the
custody of the maternal grandparents pending a permanency
hearing.

      On November 8, 2013, the father commenced a Family Ct Act
article 6 proceeding seeking to modify the November 6, 2013
dispositional order. Family Court combined the Family Ct Act
article 10 proceeding with a fact-finding hearing regarding the
father's petition pursuant to Family Ct Act article 6. In two
separate orders, the court dismissed both the Family Ct Act
article 6 and article 10 petitions. The father now appeals.

      Generally, an order of disposition in a proceeding pursuant
to Family Ct Act § 1055 must "reflect a resolution consistent
with the best interests of the children after consideration of
all relevant facts and circumstances, and must be supported by a
sound and substantial basis in the record" (Matter of Alaina E.,
33 AD3d 1084, 1087 [2006]). Here, although the father
participated as a nonparty respondent during the Family Ct Act
article 10 proceeding, Family Court identified the maternal
grandparents as the "suitable" custodians for initial placement
during the pendency of that proceeding (see Family Ct Act §§ 1017
[1] [a]; 1055-b [a]; Matter of Paige G. [Katie P.], 119 AD3d 683,
684 [2014]). "In making [such] a determination . . . Family
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Court [was obligated to] consider not only the custodian's
ability to provide adequate shelter, but all the facts and
circumstances relevant to the [children's] best interests"
(Matter of Harriet U. v Sullivan County Dept. of Social Servs.,
224 AD2d 910, 911 [1996]; see Matter of Paige G. (Katie P.), 119
AD3d at 684).

      In a proceeding pursuant to Family Ct Act article 6 to
modify an existing custody order, Family Court also considers the
best interests of the children, but only after the parent seeking
the modification has "demonstrate[d] a change in circumstances
that warrants an inquiry into the best interests of the
child[ren]" (Matter of Schlegel v Kropf, 132 AD3d 1181, 1182
[2015]). In this context, factors relevant to the best interests
analysis include "the relative fitness, stability, past
performance, and home environment of the parents, as well as
their ability to guide and nurture the children and foster a
relationship with the other parent" (Matter of Rohde v Rohde, 135
AD3d 1011, 1012 [2016] [internal quotation marks and citation
omitted]). The best interests of the children may also be
considered in a custody dispute between a parent and nonparent,
but only if the nonparent demonstrates, insofar as is relevant
here, extraordinary circumstances to overcome a parent's
overriding claim of custody to his or her child (see Matter of
Rumpff v Schorpp, 133 AD3d 1109, 1110 [2015]).

      Initially, we are not persuaded by the father's argument
that there were no extraordinary circumstances presented that
would allow an award of custody to the maternal grandparents.
Here, the children were placed with the maternal grandparents
pursuant to Family Ct Act §§ 1017 and 1055, not Family Ct Act
article 6 (see Family Ct Act § 1055-b). As set forth above, the
issue was therefore limited to whether the maternal grandparents
were "suitable . . . person[s] related to the child[ren]" (Family
Ct Act § 1017 [1] [a]). At the hearing on the father's
modification petition, Family Court confirmed that when the
children were placed with the grandparents, there was "confusion"
with regard to the status of the order of protection. In its
findings, Family Court determined that the father demonstrated a
change in circumstances based on the expiration of the order of
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                                                 520833

protection and his completion of certain parenting and domestic
violence programs and proceeded to consider the best interests of
the children. Because no party now challenges this finding, we
focus our review on Family Court's best interests analysis.

      Whether assessed in the context of Family Ct Act article 6
or Family Ct Act article 10, a court's factual findings with
regard to a child's best interests are entitled to our deference
and its determination should not be disturbed as long as it is
supported by a sound and substantial basis in the record (see
Matter of Vanita UU. v Mahender VV., 130 AD3d 1161, 1164 [2015],
lv dismissed and denied 26 NY3d 998 [2015]; Matter of Alaina E.,
33 AD3d at 1087). Here, as noted by Family Court, the testimony
at the hearing was that the children had spent the majority of
their lives living with the maternal grandparents. Accordingly,
they have attended school, participated in extracurricular
activities and developed friendships in the school district where
the maternal grandparents live. The father, who had never been
the children's primary caretaker, lives in a different school
district with his paramour and two other children. Like Family
Court, we note that, during his testimony, the father "minimized"
and failed to appreciate how difficult a move could be for the
children. The father testified with regard to the children's
behavioral issues, particularly one event involving child A that
was indisputably significant and could have had tragic
consequences. Although the father attributed the children's bad
behavior to the maternal grandparents' inability to control them,
he was unable to provide any insight with regard to discipline
techniques that he would employ. The father testified that he
had used corporal punishment on the children in the past and,
despite the passage of time and completion of programs, when
asked about the event with child A that precipitated the order of
protection, the father still characterized it as getting "a
little physical" with the child. At the hearing, he gave
examples of misbehavior but also explained that, when things
became difficult, he would send the children back to the maternal
grandparents. Based on our review of the record as a whole, we
find a sound and substantial basis in the record for Family
Court's determination that it was in the children's best
interests not to modify the existing custody order and to
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                                                   520833

continue their placement with the maternal grandparents.

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



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
