        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

62
CAF 09-01165
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF BETH M.,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SUSAN T., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


VICTORIA L. KING, CANANDAIGUA, FOR RESPONDENT-APPELLANT.

ROBERT L. GOSPER, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR BRIANNA T.


     Appeal from an order of the Family Court, Ontario County (Craig
J. Doran, J.), entered May 5, 2009 in a proceeding pursuant to Family
Court Act article 6. The order, among other things, granted
petitioner guardianship of the subject child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: The subject child’s mother, the respondent in appeal
No. 1 and the petitioner in appeal No. 2, contends in appeal No. 1
that Family Court erred in granting the stepmother’s petition under
Family Court Act article 6 seeking guardianship of the child and in
denying the mother’s petition in appeal No. 2, also under Family Court
Act article 6, seeking custody of the child. In both appeals, the
mother contends that Family Court erred in admitting in evidence
transcripts from 2004 proceedings concerning custody and visitation
relative to the subject child. We agree with the mother that the
court erred in admitting in evidence the transcripts of testimony from
witnesses at the prior proceedings without first determining whether
those witnesses were presently unavailable (see CPLR 4517; Family Ct
Act § 165; Matter of Dillon S., 249 AD2d 984; Matter of Christina A.,
216 AD2d 928). Nevertheless, we conclude under the circumstances of
this case that the error is harmless and thus that reversal is not
required inasmuch as “a substantial right of a party was not
prejudiced” by that error (Christina A., 216 AD2d at 928; cf. Dillon
S., 249 AD2d 984). The record reflects that the court primarily
relied upon evidence and testimony that was presented at the fact-
finding hearing on the instant petitions in making its findings of
fact and conclusions of law (see Christina A., 216 AD2d at 928; cf.
Dillon S., 249 AD2d 984; Matter of Raymond J., 224 AD2d 337, 338).
Thus, any reliance on the testimony of a witness at those prior
proceedings was not essential to the court’s conclusion herein (see
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                                                         CAF 09-01165

Christina A., 216 AD2d at 928). In any event, the only testimony from
the 2004 proceedings to which the court referred in its findings of
fact and conclusions of law was the testimony of a child sexual abuse
counselor concerning her validation of the allegations of sexual abuse
against the mother. Notably, however, the court’s prior determination
that the mother sexually abused the child is also referenced in the
2004 order and the court’s findings of fact underlying that order, and
on appeal the mother does not challenge the admission of that order in
evidence. Thus, the admission in evidence of the transcripts from the
prior proceedings is harmless for that reason as well.

     Contrary to the further contention of the mother, we conclude
that the stepmother met her burden of establishing the existence of
extraordinary circumstances sufficient to warrant an inquiry into
whether the best interests of the child would be served by awarding
guardianship of the child to her, a nonparent (see generally Matter of
Bennett v Jeffreys, 40 NY2d 543, 544; Matter of Gary G. v Roslyn P.,
248 AD2d 980, 981). The evidence at the fact-finding hearing
established, inter alia, that the mother had been convicted of driving
while intoxicated three times, that she was on probation for the third
conviction at the time of the hearing, and that she violated the terms
of her probation. The evidence further established that the mother
has a history of alcohol abuse, that she suffers from ongoing mental
health issues, and that she has been unemployed and unable to support
herself since June 2007. As discussed above, the record also contains
a prior finding that the mother sexually abused the child, and the
mother failed to submit any proof that she obtained a sex offender
evaluation or a psychological evaluation in accordance with the terms
of the 2004 order. The record thus supports the court’s conclusion
that, at the present time, the mother is unable to assume
responsibility for the child (see Matter of Loren B. v Heather A., 13
AD3d 998, 1000-1001, lv denied 4 NY3d 710; Matter of Parliament v
Harris, 266 AD2d 217; Matter of Carosi v Bloom, 225 AD2d 692).
Moreover, with respect to the issue of the best interests of the
child, the record reflects that the child has lived with the
stepmother for over four years, that the stepmother has been the
child’s primary caregiver during that time period, and that the
stepmother has provided for the child’s emotional and financial needs
(see generally Loren B., 13 AD3d at 1001; Parliament, 266 AD2d 217).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
