                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    516722
____________________________________

In the Matter of BILLY J.
   CURLESS,
                    Appellant,
      v

CAITLYN M. McLARNEY,
                    Respondent.

(Proceeding No. 1.)

(And Two Other Related Proceedings.)
____________________________________
                                             MEMORANDUM AND ORDER
In the Matter of KATHLEEN
   McLARNEY,
                    Respondent,
      v

BILLY J. CURLESS,
                      Appellant,
     and

CAITLYN M. McLARNEY,
                    Respondent.

(Proceeding No. 4.)
____________________________________


Calendar Date:    January 15, 2015

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

                              __________


     Jehed Diamond, Delhi, for appellant.

      Larisa Obolensky, Delhi, for Caitlyn M. McLarney,
respondent.
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     Nancy K. Deming, Delhi, for Kathleen McLarney, respondent.

     Joseph A. Nalli, Fort Plain, attorney for the child.

                           __________


Garry, J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered April 1, 2013, which, among other things,
granted petitioner's application, in proceeding No. 4 pursuant to
Family Ct Act article 6, to modify a prior order of custody.

      Billy J. Curless (hereinafter the father) and Caitlyn M.
McLarney (hereinafter the mother) are the unmarried parents of a
son (born in 2009). Kathleen McLarney is the child's maternal
grandmother (hereinafter the grandmother). The parents resided
together until the child was about four to six months old, at
which time the father was incarcerated for violating parole, and
served a portion of his sentence in an inpatient substance abuse
treatment facility, where he did not see the child. Thereafter,
the mother resided with the child at the grandmother's home in
Delaware County, with the exception of two periods in 2010,
during which the child briefly resided only with the mother, but
continued regular contact with the grandmother. After his
release, the father had visitation for two hours every two weeks,
supervised by the grandmother. During that time, a series of
orders of protection were in place against the father that
allowed visitation, including one directing the father to refrain
from threatening, harassing or engaging in criminal conduct
against the mother or child. In sum, both parents have had some
continuing involvement in parenting the child, who has lived in
the grandmother's home for most of his life, including periods
during which each of the parents was incarcerated.

      In October 2011, Family Court issued an order following a
hearing awarding the parents joint custody, with primary
residence with the mother, "provided that she continue to reside
with [the grandmother]," and parenting time to the father three
weekends per month. The court found that the parents had both
                              -3-                516722

engaged in criminal activity and had substance abuse problems,
had a "deeply troubled and conflict-ridden relationship," and
that the mother was the parent more likely to nurture a
relationship between the child and the other parent. The court
also found that the father had "acted in an abusive and
controlling manner toward [the mother] before and during her
pregnancy" and determined that he had committed that family
offense during the mother's pregnancy. No appeal was taken from
that order.

      In late 2011, the mother was incarcerated for violating
probation. The child continued to reside with the grandmother.
The father commenced the first two custody proceedings seeking
primary physical custody of the child, and the grandmother was
deemed an interested party. During this same period, at the
recommendation of the child's health care provider, the mother
and grandmother had the child evaluated and he started weekly
sessions with a speech therapist in the grandmother's home to
address his delayed development in speech and communication and
other behavioral problems. After the mother was sentenced to a
prison term of 1a to 4 years upon the probation violation, the
father petitioned for sole legal and residential custody, and the
grandmother filed a petition seeking primary physical custody.
The mother, whose conditional release date was in January 2013,
opposed the father's petitions. Prior to conducting the fact-
finding hearing upon these petitions, Family Court made a
temporary order directing alternating weekly physical custody of
the child between the homes of the grandmother and the father.
This schedule was subsequently modified during the course of the
hearings in 2012, with the court directing that the child reside
with the grandmother during each week, and with the father on the
weekends, for the purpose of allowing the child to obtain
necessary early intervention services through the school district
on a consistent basis.

      Family Court ultimately determined that the grandmother had
demonstrated extraordinary circumstances and awarded her primary
physical custody, with joint custody shared by the parents and
grandmother, and directed parenting time with the father every
weekend from Friday to Sunday. In rendering this decision, the
court specifically referenced the child's significant speech
                              -4-                516722

delays, which required intensive therapeutic intervention,
finding that if these profound deficits were not addressed, the
child's progress, readiness for school and long-term success
could be jeopardized. The father appeals.

      We affirm. Initially, Family Court's finding of
extraordinary circumstances is supported by the record. It is
clear and 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 Tennant v Philpot, 77 AD3d 1086, 1087
[2010] [internal quotation marks and citations omitted]; see
Matter of Michael B., 80 NY2d 299, 309 [1992]). "It is the
nonparent's burden to establish extraordinary circumstances and,
when that burden is met, custody is determined based upon the
child's best interests" (Matter of Marcus CC. v Erica BB., 107
AD3d 1243, 1244-1245 [2013], appeal dismissed 22 NY3d 911 [2013]
[citations omitted]). The pertinent factors to be considered in
determining whether extraordinary circumstances exist "include
the length of time the child has lived with the nonparent, the
quality of that relationship and the length of time the
biological parent allowed such custody to continue without trying
to assume the primary parental role" (id. at 1244 [internal
quotation marks and citation omitted]; accord Matter of Golden v
Golden, 91 AD3d 1042, 1043 [2012]), an analysis that considers
"the cumulative effect of all issues present in a given case"
(Matter of Pettaway v Savage, 87 AD3d 796, 797 [2011], lv denied
18 NY3d 801 [2011] [internal quotation marks and citations
omitted]).

      Contrary to the father's claim, Family Court made a finding
of extraordinary circumstances. The court made factual findings
that concerned both the threshold extraordinary circumstances and
best interests rulings; although the factors were not discussed
separately, the basis for the findings was adequately stated.1


    1
        As there was no prior judicial finding of extraordinary
circumstances, it was not necessary to establish a change in
circumstances (see Matter of McBride v Springsteen-El, 106 AD3d
                              -5-                516722

We conclude that the record is sufficient to support these
findings and, by this Court's exercise of independent authority,
further find that additional factors support the determination
(see Matter of Roth v Messina, 116 AD3d 1257, 1258-1259 [2014];
Matter of Ramos v Ramos, 75 AD3d 1008, 1010 [2010]).

      Applying the relevant factors, the child, who was 3½ years
of age at the time of Family Court's decision, has lived with the
grandmother for most of his life with only short interruptions,
and remained with her after the mother's incarceration in January
2012; aside from a short period in which he alternated his time
weekly between the father and the grandmother, the child has
since resided with the grandmother, with weekends at the father's
home. In his first two years of life, the child's visits with
the father were limited by the father's incarceration and
inpatient substance abuse treatment, as well as the supervised
visitation stemming from domestic violence. Notably, the father
has consistently exercised his visitation and has made clear
efforts to increase his role in the child's life. Unfortunately,
he has fallen behind on the child support obligations.

      The grandmother has a very close and nurturing relationship
with the child, was supportive of the mother, willingly
supervised the father's visitation, pursued recommended speech
therapy, utilized her education and training to improve his
speech and other delayed skills and reinforced his therapy. The
child experienced notable developmental improvements until he
began alternating weekly between households, and again after he
resumed residing every week with the grandmother. The child's
speech pathologist recounted the grandmother's active
participation in therapy and follow-up reinforcement, the child's
initial progress but ongoing developmental delays and
inconsistent progress, and the need for more consistent services.
She opined that the child did best with the grandmother
reinforcing tasks and required "a lot of structure," daily family
reinforcement of therapy, and adult contact.




1402, 1404 [2013]).
                              -6-                516722

      Considering all of the testimony, the parties' history and
the child's developmental needs, the record supports Family
Court's finding that the grandmother "is uniquely qualified to
oversee [the child's] therapeutic regime" and to "reinforce [his]
treatment," while the father's home and schedule afforded "little
parenting time for individual attention" to the child. The
testimony further supports the court's finding that the father
"does not understand or refuses to accept the [severity] of [the
child's] developmental delay and the dire implications such delay
presents," and had shown "less than enthusiastic support of
therapeutic services." According deference to Family Court's
credibility determinations and factual findings (see Matter of
Pettaway v Savage, 87 AD3d at 799), and considering the combined
effect of all of the factors in this case, we find that the
grandmother met her burden of demonstrating that extraordinary
circumstances exist "which would drastically affect the welfare
of the child" (Matter of Bennett v Jeffreys, 40 NY2d 543, 549
[1976]; see Matter of Battisti v Battisti, 121 AD3d 1196, 1197-
1198 [2014]; Matter of Golden v Golden, 91 AD3d at 1043-1045;
Matter of Lori MM. v Amanda NN., 75 AD3d 774, 775-776 [2010]).

      We also find that the record evidence supports Family
Court's finding that the best interests of the child warrant an
award of primary physical custody to the grandmother. "[W]hether
a given modification will serve the best interests of the child
is determined by considering factors such as maintaining
stability in the child[ ]'s [life], the quality of the respective
home environments, the length of time the present custody
arrangement has been in place and each [party's] past
performance, relative fitness and ability to provide for and
guide the child[ ]'s intellectual and emotional development"
(Matter of Battisti v Battisti, 121 AD3d at 1198 [internal
quotation marks and citation omitted]). The record establishes
that the father, who was still on parole at the time of the fact-
finding hearing, lives in a three-bedroom duplex with his
girlfriend and their then-newborn child, as well as the
girlfriend's toddler and the father's two older children from a
prior relationship, ages 8 and 10, who visit every weekend. The
girlfriend works full time, including some weekends, while the
father had a variety of factory and construction jobs, and they
attempt to work different shifts to cover their responsibilities
                               -7-                 516722

at home. The grandmother, a full-time special education teacher
for 20 years, lives with the child and her 13-year-old son. She
has always cared for the child while he lived with her, taking
him to doctors' appointments and reinforcing his therapy. During
the course of the hearing, the child was making progress in an
integrated preschool program. This program employs a special
education teacher and two other early education teachers, and the
child receives speech therapy three times per week and
occupational therapy twice per week, in accord with his
individualized education program.

      The record also reveals that the father had little to no
contact or communication with the mother or the grandmother, and
they generally did not speak or share information with one
another about the child or attempt to coordinate his routines.
We accord great deference to Family Court's findings that the
father was "hostile in his attitude" to the mother and
grandmother and "would not be cooperative with [them,] nor does
it appear that he is particularly committed to nurturing their
relationship with [the child]" (see Matter of Marcus CC. v Erica
BB., 107 AD3d at 1246), and that "the already high stress level"
in the father's household raised serious concerns as to whether
the child's needs would be fully met were he to reside there.
Accordingly, while there are factors supporting both sides, the
record as a whole supports Family Court's best interests
determination (see Matter of Battisti v Battisti, 121 AD3d at
1198).

     Lahtinen, J.P., Devine and Clark, JJ., concur.


     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
