                         State of New York
                  Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   October 20, 2016                522042
                                                       520847

________________________________

In the Matter of EVELYN EE.,
                    Appellant,
      v

AYESHA FF.,
                   Respondent.

(Proceeding No. 1.)
________________________________

In the Matter of JODY CC.,
                    Respondent,
      v

EVELYN EE.,
                   Appellant,
     and
                                           MEMORANDUM AND ORDER
SCHENECTADY COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent.

(Proceeding No. 2.)
________________________________

In the Matter of KARMA EE.,
   Alleged to be a Neglected
   Child.

SCHENECTADY COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent;

EVELYN EE.,
                   Appellant.

(Proceeding No. 3.)
________________________________
                                 -2-   522042
                                       520847

In the Matter of AYESHA FF.,
                    Respondent,
      v

EVELYN EE.,
                    Appellant.

(Proceeding No. 4.)
________________________________

In the Matter of KARMA EE. and
   Another, Alleged to be
   Neglected Children.

SCHENECTADY COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent;

EVELYN EE.,
                    Appellant.

(Proceeding No. 5.)
________________________________

In the Matter of KARMA EE. and
   Another, Alleged to be
   Neglected Children.

SCHENECTADY COUNTY DEPARTMENT
   OF SOCIAL SERVICES,
                    Respondent;

EVELYN EE.,
                    Appellant.

(Proceeding No. 6.)
________________________________


Calendar Date:   September 15, 2016
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                                                  520847

Before:   Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.
                            __________


      Paul J. Connolly, Delmar, for appellant.

      Karen R. Crandall, Glenville, for Ayesha FF., respondent.

      Timothy J. Brennan, Schenectady, for Jody CC., respondent.

      Christopher H. Gardner, County Attorney, Schenectady
(Frank S. Salamone of counsel), for Schenectady County Department
of Social Services, respondent.

      Alexandra G. Verrigni, Rexford, attorney for the children.

                            __________


Egan Jr., J.

      Appeals (1) from an order of the Family Court of
Schenectady County (Skoda, J.), entered November 6, 2014, which,
among other things, dismissed petitioner's application, in
proceeding No. 1 pursuant to Family Ct Act article 6, to modify a
prior order of custody, and (2) from an order of said court,
entered March 2, 2015, which, among other things, (a) granted
petitioners' applications, in proceeding Nos. 2 and 4 pursuant to
Family Ct Act article 6, for custody of the subject children, and
(b) granted petitioner's applications, in proceeding Nos. 3, 5
and 6 pursuant to Family Ct Act article 10, to adjudicate the
subject children to be neglected.

      Evelyn EE. (hereinafter the mother) has five biological
children, three of whom – Lilith EE. (born in 2005), Karma EE.
(born in 2013) and Aiden EE. (born in 2014) – are the subjects of
these appeals. Following Lilith's birth, questions were raised
regarding the mother's allegedly untreated mental health issues,
as the result of which the mother eventually consented to placing
the child in the custody of the mother's half sister (hereinafter
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                                                  520847

the aunt). In August 2009, the mother commenced the first of
these six proceedings seeking to regain custody of Lilith.
Although Family Court (Taub, J.H.O.) dismissed the petition for
failure to state a cause of action, this Court reversed, directed
that the petition should be reinstated and, in May 2013, remitted
the matter to Family Court for further proceedings.1

      In the interim, Karma was born and, within days of her
birth, was temporarily removed from the mother's home – on
consent – and placed with a close family friend.2 Shortly
thereafter, the friend commenced proceeding No. 2 in April 2013
seeking sole custody of Karma, and the Schenectady County
Department of Social Services (hereinafter DSS) commenced
proceeding No. 3 alleging that the mother had derivatively
neglected Karma.3 Following Aiden's birth, the aunt commenced
proceeding No. 4 in August 2014 seeking sole custody of the child
– citing the mother's alleged mental instability and substance
abuse, as well as the fact that the aunt already had custody of


    1
        The mother subsequently amended her petition in July
2013.
    2
        Following a hearing pursuant to Family Ct Act § 1028,
Karma was returned to the mother's care in July 2013. In
December 2013, the Schenectady County Department of Social
Services again sought to remove Karma from the mother's care –
this time because the mother had tested positive for cocaine in
September 2013. Following a second hearing, Family Court granted
that request, removed Karma from the mother's care and again
placed the child with the family friend.
    3
        The derivative neglect allegation stemmed from a March
2013 adjudication of neglect with respect to one of the mother's
other children, Devon EE. (born in 2010). The incident involving
Devon occurred in October 2011, at which time the child was
discovered crying in a stroller while the mother, who was
described as highly intoxicated, was passed out on a grassy area
adjacent to a city street (Matter of Devon EE. [Evelyn EE.], 125
AD3d 1136 [2015], lv denied 25 NY3d 904 [2015]).
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two of Aiden's siblings. DSS, in turn, commenced proceeding Nos.
5 and 6 alleging – in virtually identical petitions – that the
mother had neglected Karma and Aiden. Specifically, the
petitions alleged that, on August 4, 2014, while acting as the
sole caretaker for the children, the mother had a blood alcohol
content of .14%. Combined hearings on the various petitions
thereafter followed.

      By order entered November 6, 2014, Family Court (Skoda,
J.), among other things, dismissed the mother's petition in
proceeding No. 1 seeking custody of Lilith and, after finding
both that extraordinary circumstances existed to divest the
mother of custody and that the child's best interests would be
served by continuing her placement with her aunt, awarded sole
legal and physical custody of Lilith to the aunt with supervised
visitation to the mother. Thereafter, by order entered March 2,
2015, Family Court, among other things, granted the friend's and
the aunt's respective petitions – in proceeding Nos. 2 and 4 –
for custody of Karma and Aiden and awarded sole legal and
physical custody of Karma to the family friend (with supervised
visitation to the mother) and sole legal and physical custody of
Aiden to the aunt (with supervised visitation to the mother).
Such awards also constituted Family Court's disposition of the
then pending neglect petitions with respect to Karma and Aiden
(proceeding Nos. 5 and 6) (see Family Ct Act § 1055-b [a] [v]
[A]).4 These appeals by the mother ensued.

      Preliminarily, we reject the mother's assertion that she
was denied the right to counsel. On the second day of hearings,
the mother advised Family Court that she was "having some issues"
with assigned counsel and requested either that counsel be
replaced or that "something . . . be done" because counsel was
refusing to subpoena certain witnesses or documentary evidence
upon her behalf. In response, counsel advised the court that he


    4
        Family Court previously had adjudicated Karma and Aiden
to be neglected children and combined the dispositional hearing
for those neglect proceedings with the then pending custody
hearing for those children.
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                                                 520847

did not believe that the requested witnesses/evidence – to the
extent that such proof was even relevant – would reflect
favorably upon the mother and, in his professional judgment,
acquiescing to the mother's wishes would not be in her best
interests. Following an extended colloquy, during the course of
which the potential consequences of pursuing the requested
testimony and evidence were fully explored, and in response to
the mother's continued insistence that such witnesses/proof be
produced, Family Court directed counsel to issue subpoenas
accordingly. Three of the four requested witnesses then appeared
and testified.

      Despite having obtained the very relief that she so
persistently requested, the mother now argues that Family Court,
by directing counsel to follow his client's expressed wishes and
issue the subject subpoenas, effectively overruled counsel's
professional judgment and, in so doing, deprived the mother of
her right to counsel. We disagree. The mother had the benefit
of counsel – and his professional judgment – throughout the
course of these proceedings (compare Matter of Deon M. [Vernon
B.], 68 AD3d 1740, 1741-1742 [2009]),5 and our review of the
record confirms that counsel at all times endeavored to zealously
represent his client and safeguard the mother's best interests –
despite her insistence in pursuing lines of inquiry that were
only tangentially relevant to the issues before Family Court.
Under these circumstances, we find no deprivation of the mother's
constitutional or statutory right to counsel. To the extent that
the mother's brief may be read as asserting an ineffective
assistance of counsel claim, we find any argument on this point
to be equally lacking in merit.




    5
        Notably, the mother affirmatively indicated that she
wished for assigned counsel to continue to represent her and, in
any event, a disagreement as to trial strategy does not
constitute good cause for the substitution of counsel (see Matter
of Wiley v Musabyemariya, 118 AD3d 898, 900-901 [2014], lv denied
24 NY3d 907 [2014]).
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                                                 520847

      With respect to custody of Lilith (proceeding No. 1),6
"[i]t is well settled that 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 Peters v Dugan, 141
AD3d 751, 752 [2016] [internal quotation marks and citations
omitted]; see Matter of Renee TT. v Britney UU., 133 AD3d 1101,
1102 [2015]). The burden of proving extraordinary circumstances
rests with the nonparent (see Matter of Battisti v Battisti, 121
AD3d 1196, 1197 [2014]) – here, the aunt – and examples of such
extraordinary circumstances include, among other things, "failing
to address serious substance abuse or mental health issues"
(Matter of Renee TT. v Britney UU., 133 AD3d at 1103) or failing
"either to maintain substantial, repeated and continuous contact
with the child or to plan for the child's future" (Matter of
Rodriguez v Delacruz-Swan, 100 AD3d 1286, 1288 [2012] [internal
quotation marks, brackets and citation omitted]).

      The aunt testified that the mother and Lilith came to
visit her for a weekend when the child was approximately one
month old; the mother left, and Lilith remained with the aunt.
On the child's first birthday in 2006, the aunt filed for
custody, in response to which the mother accused the aunt of
kidnapping. Although Lilith was returned to the mother's custody
for approximately one year, the aunt regained custody of the
child at some point in 2007, and Lilith has lived with her
continuously since that time. The aunt testified that, during
the seven years that preceded the 2014 custody hearing, the
mother had limited contact with the child – specifically, the
mother engaged in supervised visits with Lilith on only a
sporadic basis, failed to attend any of the child's school
conferences, concerts, activities or birthday parties, rarely


    6
        According to Family Court, the aunt previously was
awarded custody of Lilith on consent in August 2008. As no prior
finding of extraordinary circumstances had been made, the aunt
bore the burden of demonstrating such circumstances here (see
Matter of Smith v Anderson, 137 AD3d 1505, 1507 n 4 [2016]).
                              -8-                522042
                                                 520847

spoke with the child by phone, did not send the child any cards
or letters and, at one point, allowed two years to elapse without
seeing the child.

      Although the mother disputed the aunt's account, contended
that she saw the child on a more frequent and consistent basis
and attributed the two-year gap in visitation to an inability to
locate the aunt, such testimony presented a credibility issue for
Family Court to resolve (see e.g. Matter of Shana SS. v Jeremy
TT., 111 AD3d 1090, 1092 [2013], lv denied 22 NY3d 862 [2014]).
In our view, the prolonged disruption in custody, coupled with
the mother's failure to maintain substantial and continuous
contact with the child and to adequately address her longstanding
substance abuse and mental health issues (to be discussed infra),
is sufficient to establish the extraordinary circumstances
required to divest the mother of custody. Finally, based upon
our review of the record as a whole, we agree that Lilith's best
interests are served by an award of custody to the aunt.
Accordingly, the mother's petition in proceeding No. 1 was
properly dismissed.

      As for the neglect petitions relative to Karma and Aiden
(proceeding Nos. 3, 5 and 6), "a finding of neglect will be
sustained if the petitioner demonstrated, by a preponderance of
evidence, that the children's physical, mental or emotional
condition was harmed or is in imminent danger of such harm as a
result of the parent's or caretaker's failure to exercise the
minimum degree of care that a reasonably prudent person would
have used under the circumstances. Notably, a finding of neglect
does not require actual injury or impairment, but only an
imminent threat that such injury or impairment may result, which
can be established through a single incident or circumstance"
(Matter of Dylynn V. [Bradley W.], 136 AD3d 1160, 1161-1162
[2016] [internal quotation marks, brackets and citations
omitted]; see Matter of Daniel X. [Monica X.], 114 AD3d 1059,
1060 [2014]). Derivative neglect, in turn, "is established where
the evidence demonstrates an impairment of parental judgment to
the point that it creates a substantial risk of harm for any
child left in that parent's care, and the prior neglect
determination is sufficiently proximate in time to reasonably
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                                                 520847

conclude that the problematic conditions continue to exist"
(Matter of Xiomara D. [Madelyn D.], 96 AD3d 1239, 1240 [2012]
[internal quotation marks and citations omitted]; accord Matter
of Neveah AA. [Alia CC.], 124 AD3d 938, 939 [2015]; see Matter of
Ilonni I. [Benjamin K.], 119 AD3d 997, 997 [2014], lv denied 24
NY3d 914 [2015]).

      The initial neglect petition filed with respect to Karma
alone (proceeding No. 3), which was filed shortly after the
child's birth in 2013, was based upon the prior finding of
neglect against the mother as to Devon, as well as the mother's
failure to successfully address her ongoing mental health and
substance abuse issues. As noted previously, the prior
adjudication of neglect as to Devon – made in March 2013 –
stemmed from the October 2011 incident wherein the mother was
discovered passed out on a grassy area adjacent to a city street
while her child was crying in a stroller for approximately 45
minutes (see note 3, supra). Although the mother claimed to have
consumed only three drinks on the evening in question and
attributed her slurred speech and agitated demeanor to certain
medications that she then was taking, subsequent testing revealed
a blood alcohol content of .16%.

      Regardless of whether the prior neglect of Devon is
measured from the date of its occurrence (October 2011) or the
date of the resulting neglect adjudication (March 2013), we are
satisfied that such neglect is sufficiently proximate in time to
reasonably conclude that the problematic conditions affecting the
mother, i.e., her substance abuse, still exist. As this Court
has consistently held, "there is no bright-line, temporal rule
beyond which we will not consider older child protective
determinations" (Matter of Ilonni I. [Benjamin K.], 119 AD3d at
998 [internal quotation marks and citations omitted]; accord
Matter of Iryanna I. [Benjamin K.], 132 AD3d 1096, 1097 [2015];
Matter of Sumaria D. [Madelyn D.], 121 AD3d 1203, 1204 [2014]),
and we are satisfied that the record as a whole supports Family
Court's finding that the mother had ongoing and unaddressed
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substance abuse issues.7

      Further support for Family Court's finding of neglect as
to Karma may be found in the proof adduced with respect to the
mother's mental health issues. The mother, by her own admission,
has been hospitalized three times for mental health issues – most
recently following the birth of Lilith in 2005 – and has two
prior suicide attempts. In addition to suffering from attention
deficit hyperactivity disorder and epilepsy, the mother testified
that she has been diagnosed with posttraumatic stress disorder,
authority defiance disorder8 and seasonal depression – the latter
of which, according to the mother, subsequently was reclassified
as bipolar disorder and borderline personality disorder.
Although the mother admittedly was – at the time of the
underlying hearings – seeing a mental health counselor "[m]aybe
once every other month," a DSS caseworker testified that the
mother denied having any mental health issues – contending
instead that "they were lies" made up by a particular DSS case


     7
        In reaching this conclusion, we have not considered the
mother's September 2013 positive screen for cocaine or her August
2014 positive screen for alcohol, as such proof postdates the May
2013 neglect petition filed in proceeding No. 3 and there does
not appear to have been a motion to conform the pleadings to the
proof (compare Matter of Alexander Z. [Melissa Z.], 129 AD3d
1160, 1161-1162 [2015], lv denied 25 NY3d 914 [2015]). Those
subsequent screening results, however, were properly admitted
with respect to the August 2014 neglect petitions filed with
respect to Karma and Aiden in proceeding Nos. 5 and 6, as well as
in the context of the August 2014 custody petition filed with
respect to Aiden (proceeding No. 4).
     8
        The mother succinctly stated, "I have a problem with
authority." When questioned on this point, the mother indicated
that "authority" usually included DSS and law enforcement
officials but, depending upon the circumstances, could extend to
Family Court if she felt that she was "being wronged." As to her
relationship with her various family members, the mother stated,
"We don't exactly get along at all, any of us."
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manager. Under these circumstances, we have no quarrel with
Family Court's finding of neglect as to Karma in proceeding No.
3.

      Additional (and virtually identical) neglect proceedings
were commenced in August 2014 with respect to both Aiden and
Karma (proceeding Nos. 5 and 6) – citing the mother's ongoing
substance abuse and her failure to adopt safe sleeping habits
with respect to the then infant Aiden. As to the issue of
substance abuse, the mother insisted that she consumed alcohol
only in moderation and denied any illegal drug use since she was
a teenager. The proof adduced at the hearing, however,
established that, as noted previously, the mother had a positive
alcohol screen in October 2011 (with a blood alcohol content of
.16%), a positive screen for cocaine in September 2013 and
another positive alcohol screen in August 2014 (revealing a blood
alcohol content of .14%). Notably, the August 4, 2014 screen
resulted when a service provider arrived at the mother's
residence that day to facilitate a supervised visitation with
Karma and discovered the mother, who had recently given birth to
Aiden, stumbling, slurring her words and smelling of alcohol.9
Although the mother denied alcohol use on that date, again
contending that her observed condition was a side effect of
either her medications, her speech impediment or the fact that
she was not wearing her knee brace, the service provider
testified that she "observed beer cans lined up on the counter"
in the kitchen and "a white powder on the floor." Additional
testimony revealed that, although the mother had been instructed
that there were to be no blankets in Aiden's crib unless he was
swaddled, the child was found on the day in question – covered
with a loose blanket – in a crib containing toys. Inasmuch as
the record clearly reflects either an inability or an
unwillingness on the part of the mother to, among other things,
effectively address and resolve her well-documented substance
abuse issues, we have no quarrel with Family Court's adjudication
of neglect as to Karma and Aiden in proceeding Nos. 5 and 6.


     9
        This incident was the impetus behind the commencement of
proceeding Nos. 4, 5 and 6.
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      Finally, as to the family friend's request for custody of
Karma (proceeding No. 2) and the aunt's request for custody of
Aiden (proceeding No. 4), as well as with respect to the
dispositions fashioned in the aforementioned neglect proceedings,
we are satisfied that the record supports a finding of
extraordinary circumstances – specifically, the prior findings of
neglect made against the mother, the mother's failure to address
her ongoing substance abuse issues and her unresolved mental
health issues – sufficient to divest the mother of custody.
Further, upon reviewing the relevant testimony, we are satisfied
that awarding custody of Karma to the family friend and awarding
custody of Aiden to the aunt is in the children's respective best
interests. The mother's remaining contentions, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.

      Peters, P.J., Lynch, Rose and Aarons, JJ., concur.



      ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
