                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:    July 9, 2015                    518787
                                                        518788
________________________________

In the Matter of SHARON D.,
                    Respondent,
      v

DARA K.,
                     Appellant,
                     et al.,
                     Respondent.

(Proceeding No.1.)                           MEMORANDUM AND ORDER
_______________________________

In the Matter of VICTORIA J.,
                    Respondent,
      v

DARA K.,
                     Appellant.

(Proceeding No. 2.)
________________________________


Calendar Date:    June 5, 2015

Before:    McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                              __________


     Teresa C. Mulliken, Harpersfield, for appellant.

      Law Office of Renee Albaugh, Delhi (Renee J. Albaugh of
counsel), for Sharon D., respondent.

     Jehed F. Diamond, Delhi, for Victoria J., respondent.

     Larisa Obolensky, Delhi, attorney for the child.

                              __________
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McCarthy, J.P.

      Appeals (1) from an order of the Family Court of Delaware
County (Becker, J.), entered February 28, 2014, which granted
petitioner's application, in proceeding No. 2 pursuant to Family
Ct Act article 8, for an order of protection, and (2) from an
order of said court, entered April 1, 2014, which granted
petitioner's application, in proceeding No. 1 pursuant to Family
Ct Act article 6, for custody of the subject child.

      The child at issue herein (born in March 2002) is the
daughter of respondent Dara K. (hereinafter the mother).
Petitioner Victoria J. (hereinafter the grandmother) is the
child's maternal grandmother and is the sister of petitioner
Sharon D. (hereinafter the great-aunt). In June 2013, the great-
aunt commenced proceeding No. 1 pursuant to Family Ct Act article
6 seeking sole custody of the child, stressing that the child had
lived with her since the child was one year old. Several days
after the great-aunt commenced proceeding No. 1, the grandmother
– who has resided at the great-aunt's house since roughly 2010 –
initiated proceeding No. 2 pursuant to Family Ct Act article 8,
accusing the mother of having committed a family offense by
physically accosting her during a late May 2013 incident.
Following fact-finding hearings as to both proceedings, Family
Court (1) found that a family offense of disorderly conduct had
occurred with respect to the May 2013 incident and entered a two-
year order of protection in proceeding No. 2, and (2) granted the
great-aunt's petition in proceeding No. 1 and awarded her sole
custody. The mother now appeals from both orders.

      With respect to proceeding No. 1, the custody petition, the
mother's sole contention is that the great-aunt did not have
standing to pursue custody of the child. A nonparent has the
burden of proving the existence of extraordinary circumstances
that warrant disregarding the parent's superior right to custody
and proceeding to an assessment of the best interests of the
child (see Matter of Sweeney v Sweeney, 127 AD3d 1259, 1260
[2015]; Matter of Battisti v Battisti, 121 AD3d 1196, 1196-1197
[2014]). "The pertinent factors to be considered in determining
whether extraordinary circumstances exist include the length of
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time the child has lived with the nonparent, the quality of that
relationship and the length of time the []parent allowed such
custody to continue without trying to assume the primary parental
role" (Matter of Curless v McLarney, 125 AD3d 1193, 1195 [2015]
[internal quotation marks and citations omitted]; see Matter of
Battisti v Battisti, 121 AD3d at 1197).

      The record demonstrates that the mother neglected to
maintain a continuous relationship with the child. The evidence
established that the periods of time that the mother lived with
the child – in the great-aunt's house – were more incidental to
the mother's housing needs than they were based on any attempt to
provide the child with the support of a parent; on numerous
occasions, the mother left the great-aunt's house and the child
in order to live with various paramours for lengthy periods of
time. In contrast, the child has lived with the great-aunt for
the vast majority of her life, and the great-aunt testified to
the activities in which she participated with the child, showing
the closeness of their relationship. In addition, further
testimony established that the mother would pull the child by the
hair and would call the child "stupid" on occasions when she had
assisted the child in doing homework.

      Although the mother disputed some of the aforementioned
evidence, we will defer to Family Court's credibility
determinations (see Matter of Curless v McLarney, 125 AD3d at
1197). Given that the credited proof established a lengthy
period of time during which the mother had allowed the great-aunt
to functionally serve as the child's caretaker without the mother
attempting to assume that role, and further established a
significant difference between the quality of the relationship
between the child and the mother and the quality of the
relationship between the child and the great-aunt, there is a
sound and substantial basis in the record to support the finding
of extraordinary circumstances (see Matter of Battisti v
Battisti, 121 AD3d at 1197; Matter of Aida B. v Alfredo C., 114
AD3d 1046, 1049 [2014]).

      Turning to proceeding No. 2, the family offense petition,
we agree with the mother that the record does not contain
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sufficient evidence to support the conclusion that the mother had
the mens rea necessary to commit the family offense of disorderly
conduct. Although the conduct necessary to support a finding of
the family offense of disorderly conduct is not limited to that
which took place in public (see Family Ct Act § 812 [1]), the
requisite mens rea is that a person had the "intent to cause
public inconvenience, annoyance or alarm, or recklessly creat[ed]
a risk thereof" (Penal Law § 240.20; see Matter of Cassie v
Cassie, 109 AD3d 337, 342-344 [2013]). Here, the evidence
established that the mother engaged in a verbal and physical
altercation with the grandmother within the confines of the
great-aunt's home. No evidence was presented establishing the
proximity of that altercation to neighbors or other members of
the public such that the mother's actions could support a logical
inference that she acted with intent or recklessness in regard to
members of the public (see Dayan v Dayan, 126 AD3d 749, 749-750
[2015]; Matter of Shiffman v Handler, 115 AD3d 753, 753-754
[2014]; Matter of Cassie v Cassie, 109 AD3d at 344; Matter of
Janice M. v Terrance J., 96 AD3d 482, 483 [2012]). Accordingly,
we reverse that order and dismiss the petition in proceeding No.
2.

     Egan Jr., Lynch and Devine, JJ., concur.



      ORDERED that the order entered February 28, 2014 is
reversed, on the law, without costs, and petition dismissed.

      ORDERED that the order entered April 1, 2014 is affirmed,
without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
