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

391
CAF 11-00914
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF ANGELLYNN S.H.W.
---------------------------------------------
CHARLES V., SR., AND DEBRA A.V., PETITIONERS;
                                                  MEMORANDUM AND ORDER
VIVIAN N.V., RESPONDENT-APPELLANT,
AND ALLEGANY COUNTY DEPARTMENT OF SOCIAL
SERVICES, RESPONDENT-RESPONDENT.
---------------------------------------------
IN THE MATTER OF CHARLES V., SR., AND
DEBRA A.V., PETITIONERS,

                    V

VIVIAN N.V., RESPONDENT-APPELLANT,
AND ALLEGANY COUNTY DEPARTMENT OF SOCIAL
SERVICES, RESPONDENT-RESPONDENT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR RESPONDENT-APPELLANT.

THOMAS A. MINER, COUNTY ATTORNEY, BELMONT (CARISSA M. KNAPP OF
COUNSEL), FOR RESPONDENT-RESPONDENT.

DAVID C. BRAUTIGAM, ATTORNEY FOR THE CHILD, HOUGHTON, FOR ANGELLYNN
S.H.W.


     Appeal from an order of the Family Court, Allegany County (Thomas
P. Brown, J.), entered April 7, 2011 in a proceeding pursuant to
Family Court Act articles 6 and 10. The order, inter alia, continued
placement of the child with the Allegany County Department of Social
Services.

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

     Memorandum: The Allegany County Department of Social Services
(DSS) commenced a neglect proceeding against the parents of the
subject child. During the pendency of the proceeding, the father
agreed to the termination of his parental rights and, pursuant to
Family Court Act § 1021, the mother agreed to the temporary removal of
the child from the home where the child had been living with the
mother and the mother’s parents (hereafter, grandparents). The mother
later stipulated to an order awarding DSS custody of the child, and
DSS placed the child with a foster family. The grandparents then
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                                                         CAF 11-00914

commenced a proceeding seeking custody of the child and to modify the
order of disposition in the neglect proceeding by terminating the
placement of the child pursuant to Family Court Act § 1062. The
petition was supported by the mother, who was named as a respondent in
that proceeding. The mother appeals from an order in which Family
Court denied the grandparents’ petition, maintained custody of the
child with DSS pursuant to the order in the neglect proceeding and
continued the child’s placement in foster care.

     Initially, we note that, inasmuch as the mother stipulated to the
prior order awarding DSS custody of the child, she would not be
aggrieved by an order maintaining custody of the child with DSS
pursuant to the prior order (see CPLR 5511; Matter of Cherilyn P., 192
AD2d 1084, lv denied 82 NY2d 652). Here, however, the mother
supported the grandparents’ petition seeking to modify that prior
order. We therefore deem the mother’s support of the petition to be a
motion to set aside her stipulation (see generally Hopkins v Hopkins,
97 AD2d 457, 458), and we conclude that she therefore may appeal from
the order maintaining custody of the child with DSS because she is
aggrieved by the court’s implicit denial of her motion.

     We further conclude that the court properly determined that it is
in the best interests of the child to deny the grandparents’ petition.
The mother contends that the court erred in awarding custody to the
foster parents and that the grandparents should be awarded custody of
the child based on their familial relationship with her. We reject
that contention. “[N]onparent relative[s] of the child [do] not have
‘a greater right to custody’ than the child’s foster parents” (Matter
of Matthew E. v Erie County Dept. of Social Servs., 41 AD3d 1240,
1241; see Matter of Gordon B.B., 30 AD3d 1005, 1006; see generally
Matter of Thurston v Skellington, 89 AD3d 1520, 1520-1521). In any
event, the court did not award custody of the child to the foster
parents but, rather, it continued custody with DSS, which placed the
child with the foster parents.

     We reject the mother’s further contention that the court applied
an incorrect standard in continuing custody of the child with DSS. In
making a custody determination, “the court must consider all factors
that could impact the best interests of the child, including the
existing custody arrangement, the current home environment, the
financial status of the parties, the ability of [the parties] to
provide for the child’s emotional and intellectual development and the
wishes of the child . . . No one factor is determinative because the
court must review the totality of the circumstances” (Matter of Marino
v Marino, 90 AD3d 1694, 1695; see Eschbach v Eschbach, 56 NY2d 167,
172-174).

     Here, the court properly concluded, based upon its analysis of
the relevant factors, that continued placement of the child outside of
the mother’s home is in her best interests. Further, the court
properly concluded that it was not in the child’s best interests to
award custody to the grandparents. The evidence in the record before
us establishes, inter alia, that the grandparents are already
overwhelmed by the demands of raising four of their other
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                                                         CAF 11-00914

grandchildren and that several of those other grandchildren were
troubled and difficult to control. In addition, there was a pending
child protective services investigation of the grandparents, and the
grandmother was dealing with mental challenges of her own. “We thus
conclude that, ‘[although] continued placement in foster care is not
ideal, it is not in the best interests of the[ ] child[ ] to have
custody awarded to [the grandparents]’ ” (Thurston, 89 AD3d at 1521).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
