                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 16, 2015                      517494
_________________________________

In the Matter of ELEANOR P.
   YANDON,
                    Respondent,
      v

TORI J. BOISVERT,                            MEMORANDUM AND ORDER
                     Appellant,
                     et al.,
                     Respondent.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   June 1, 2015

Before:   Lahtinen, J.P., Lynch, Devine and Clark, JJ.

                              __________


     Reginald H. Bedell, Elizabethtown, for appellant.

     Claudia A. Russell, Willsboro, for respondent.

     David Rudgers, Ticonderoga, attorney for the child.

                              __________


Lahtinen, J.P.

      Appeal from an order of the Family Court of Essex County
(Meyer, J.), entered August 28, 2013, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody and
visitation.

      Petitioner (hereinafter the grandmother) is the maternal
grandmother of a child (born in 2008) whose parents are
respondent Ivy L. Boisvert (hereinafter the mother) and
                              -2-                517494

respondent Tori J. Boisvert (hereinafter the father). The
parents had repeatedly split, reconciled and moved resulting in
the child frequently residing with the grandmother for months at
a time. In July 2011, an order entered on consent provided for
respondents to have joint legal and physical custody and the
grandmother to have visitation. By January 2012, the mother and
the child were residing with the grandmother, but the mother
later moved out leaving the child with the grandmother.
Petitions were filed, including the grandmother seeking custody
in February 2012. Following a hearing, Family Court rendered a
detailed decision in which it concluded that the grandmother had
established extraordinary circumstances and, upon then
considering the best interests of the child, the court awarded
the grandmother sole legal and primary physical custody with
liberal visitation times for the mother and the father. The
father appeals, arguing that the finding of extraordinary
circumstances lacked a sound and substantial basis in the record.

      "It is well settled that a parent has a claim of custody of
his or her child, superior to that of all others, in the absence
of surrender, abandonment, persistent neglect, unfitness,
disruption of custody over an extended period of time or other
extraordinary circumstances" (Matter of Battisti v Battisti, 121
AD3d 1196, 1196-1197 [2014] [internal quotation marks and
citations omitted]; see Matter of Marcus CC. v Erica BB., 107
AD3d 1243, 1244 [2013], appeal dismissed 22 NY3d 911 [2013]).
"The burden of proving such extraordinary circumstances rests
with the nonparent seeking custody and, if established, the
controlling consideration in determining custody is the best
interests of the child" (Matter of Melody J. v Clinton County
Dept. of Social Servs., 72 AD3d 1359, 1360 [2010], lv denied 15
NY3d 703 [2010] [citations omitted]; see Matter of Daphne OO. v
Frederick QQ., 88 AD3d 1167, 1168 [2011]). Proof regarding
extraordinary circumstances may include, among other things, that
"the parent has neglected 'to maintain substantial, repeated and
continuous contact with' the child[] or make plans for [her]
future" (Matter of Sweeney v Sweeney, 127 AD3d 1259, 1260 [2015],
quoting Matter of Mildred PP. v Samantha QQ., 110 AD3d 1160, 1161
[2013]; see Matter of Carpenter v Puglese, 94 AD3d 1367, 1368
[2012]; Matter of Wayman v Ramos, 88 AD3d 1237, 1239 [2011], lv
dismissed 18 NY3d 868 [2012]).
                              -3-                517494

      Here, there was evidence credited by Family Court that the
child had chronic health and dental issues. The father ignored
such issues and did not participate in obtaining professional
care for these issues. The grandmother was actively involved in
obtaining medical and dental care for the child. After the child
had eye surgery, the father neglected to ensure that she received
required follow-up care, and the grandmother eventually brought
the child for such treatment. There was proof that the father
was verbally and physically abusive of the mother when the child
was present, as well as verbally abusive of the child. According
to the mother, the father would ignore the child and any
parenting responsibilities, opting instead to play video games
and frequently being absent for extended periods during the few
times the family was intact. She also stated that he abused
various drugs, spending money on such substances rather than food
and medicine needed by the family. The child had been evaluated
in preschool as needing various special services, and the father
failed to participate in any meetings with educators regarding
the child's needs. The grandmother was in contact on a weekly
basis with the child's teacher. The child has spent a
considerable part of her life living with the grandmother and
there was evidence that she faired better when in the
grandmother's care. According deference to Family Court's
credibility determinations (see Matter of Melody J. v Clinton
County Dept. of Social Servs., 72 AD3d at 1360), there was ample
proof that the father neglected the child's developmental,
educational and medical needs, he was frequently absent and
abdicated any parental responsibility, allowing such role to be
filled by the grandmother, and he engaged in conduct detrimental
to the child's well-being. The finding of extraordinary
circumstances is supported by a sound and substantial basis in
the record.

      The father does not contest Family Court's best interests
analysis and, in any event, the record fully supports the court's
determination regarding that issue.

     Lynch, Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
