                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   518405
_________________________________

In the Matter of LISA UU. et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

SARAH VV.,
                    Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   September 11, 2015

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

                             __________


     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.

                             __________


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
                               -2-                518405

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.
                                -3-                  518405

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.
