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

341
CAF 12-01897
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF ELEANOR BRAUN,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LACEY DECICCO, RESPONDENT-APPELLANT,
AND JOSEPH F. LOCKWOOD, RESPONDENT.
(APPEAL NO. 1.)


MARY R. HUMPHREY, NEW HARTFORD, FOR RESPONDENT-APPELLANT.

RICHARD A. COHEN, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered May 18, 2012 in a proceeding pursuant to Family
Court Act article 6. The order granted the parties joint legal
custody of the subject child, with petitioner having primary physical
custody.

     It is hereby ORDERED that said appeal from the order insofar as
it concerns the best interests of the child is unanimously dismissed
and the order is affirmed without costs.

     Memorandum: In appeal No. 1, respondent mother appeals from an
order determining that her three-year-old son’s paternal grandmother,
the petitioner therein, established extraordinary circumstances in
seeking custody of him. In appeal No. 2, the mother appeals from an
amended order determining that her one-year-old daughter’s maternal
grandmother, the petitioner therein, established extraordinary
circumstances in seeking custody of the daughter, based upon the
testimony of the paternal grandmother with respect to her petition in
appeal No. 1 seeking custody of the mother’s son. Following Family
Court’s finding in each case of extraordinary circumstances, the
mother consented to a finding in each case that it is in the best
interests of each child that the mother and the respective grandmother
shall share joint custody of the child at issue and that the physical
placement of the child shall be with the respective grandmother. We
note at the outset that, in light of the mother’s consent, her
contention in each appeal that the court erred in determining that it
is in the best interests of each child to be placed with their
respective grandmothers is not properly before us inasmuch as those
parts of the orders are not appealable (see Matter of Cherilyn P., 192
AD2d 1084, 1084, lv denied 82 NY2d 652). We nevertheless review the
mother’s contention that the court erred in determining that
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                                                         CAF 12-01897

extraordinary circumstances exist to consider the best interests of
the children inasmuch as her consent to the custody disposition does
not eviscerate the right to contest that finding (see generally CPLR
5501 [a] [3]). As a preliminary matter, we note that, with respect to
the petition of the maternal grandmother in appeal No. 2, the court
was not required to hold a hearing on the issue of extraordinary
circumstances because it “possesse[d] sufficient information to render
an informed determination on that issue” based upon the evidence
presented at the hearing in connection with the paternal grandmother’s
petition in appeal No. 1 (Matter of Howard v McLoughlin, 64 AD3d 1147,
1148).

     It is well established that, “[i]n a custody dispute between a
parent and a nonparent, the nonparent has the burden of proving that
extraordinary circumstances exist . . . To establish extraordinary
circumstances, the nonparent must establish that the parent has
relinquished the right to custody by means of surrender, abandonment,
persisting neglect, unfitness or other like extraordinary
circumstances” (Ruggieri v Bryan, 23 AD3d 991, 992 [internal quotation
marks omitted]). Here, the paternal grandmother testified with
respect to the petition in appeal No. 1 that, during the period from
January 2011 to September 2011, the mother moved with the children six
times after being evicted from her apartment. The mother lived with
friends and in motels during that period, and the paternal grandmother
observed extremely dirty living conditions in the various locations.
The paternal grandmother testified that, at one of the locations, the
mother’s friends had thrown the mother’s and her son’s belongings into
the street. The paternal grandmother also testified that the mother
had failed to obtain necessary medical care for her son. She further
testified with respect to the negative change in her grandson’s
demeanor and behavior, which she observed during his alternate weekend
visitation with her, particularly when she returned him to his mother.

     We conclude that the court properly determined that the paternal
grandmother in appeal No. 1 and the maternal grandmother in appeal No.
2 established that the mother’s unstable and unsanitary living
conditions rendered her unfit, and thus established that extraordinary
circumstances existed to warrant a hearing to determine the best
interests of the children (see Matter of Brault v Smugorzewski, 68
AD3d 1819, 1819). To the extent that the orders in each appeal
conflict with the court’s oral decision that the respective
grandmothers met their burden of establishing extraordinary
circumstances, by instead stating that the mother consented to that
determination, it is well settled that the “ ‘decision controls’ ”
(Matter of Triplett v Scott, 94 AD3d 1421, 1421). We have reviewed
the mother’s remaining contentions in each appeal and conclude that
they are without merit.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
