                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     517431
________________________________

In the Matter of JENNIFER
   SWEENEY,
                    Appellant,
      v

PATRICIA SWEENEY et al.,
                    Respondent,
                    et al.,
                    Respondent.

(Proceeding No. 1.)
________________________________            MEMORANDUM AND ORDER

In the Matter of JENNIFER
   SWEENEY,
                    Appellant,
      v

KATHY DAUB-STEARNS et al.,
                    Respondents.

(Proceeding No. 2.)
________________________________


Calendar Date:   February 17, 2015

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

                             __________


     Jane M. Bloom, Monticello, for appellant.

      Monte J. Rosenstein, Middletown, for Patricia Sweeney,
respondent.

      E. Danielle Jose Decker, Monticello, attorney for the
children.

                             __________
                              -2-                517431

Devine, J.

      Appeal from an order of the Family Court of Sullivan County
(Meddaugh, J.), entered July 18, 2013, which, among other things,
dismissed petitioner's applications, in two proceedings pursuant
to Family Ct Act article 6, to modify two prior orders of
custody.

      Petitioner (hereinafter the mother) and respondent Matthew
Daub (hereinafter the father) are the parents of Brianna (born in
2005) and Kayden (born in 2009). Due to the parents' ongoing
struggles with substance abuse and periods of incarceration, they
consented to the appointment of permanent guardians for the
children. Respondent Patricia Sweeney, a maternal aunt, was
appointed guardian of Brianna and respondent Kathy Daub-Sterns,
the paternal grandmother who lived in Vermont, was appointed
guardian of Kayden. Both parents were awarded parenting time
with the children. The mother commenced two proceedings to
modify the prior guardianship orders, alleging that her
successful recovery from her substance abuse issues warranted the
children's return to her custody. Following a fact-finding
hearing and a Lincoln hearing with Brianna, Family Court
dismissed the petitions. The mother now appeals.

      It 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 (see Matter of Battisti v
Battisti, 121 AD3d 1196, 1196-1197 [2014]; Matter of Marcus CC. v
Erica BB., 107 AD3d 1243, 1244 [2013], appeal dismissed 22 NY3d
911 [2013]; Matter of Ferguson v Skelly, 80 AD3d 903, 904 [2011],
lv denied 16 NY3d 710 [2011]). The nonparent bears the burden of
demonstrating the existence of such extraordinary circumstances
(see Matter of Aylward v Bailey, 91 AD3d 1135, 1136 [2012]),
which may include proof that the parent has neglected "to
maintain substantial, repeated and continuous contact with" the
children or make plans for their future (Matter of Mildred PP. v
Samantha QQ., 110 AD3d 1160, 1161 [2013] [internal quotation
marks and citation omitted]; accord Matter of Carpenter v
Puglese, 94 AD3d 1367, 1368 [2012]; Matter of Ferguson v Skelly,
                              -3-                517431

80 AD3d at 905).

      Sweeney's testimony revealed that, in her two years of
caring for Brianna, it was not uncommon for the mother to
oversleep and arrive in an untimely manner when she was scheduled
to spend time with the child. Moreover, the evidence adduced at
the hearing demonstrated that the mother had not taken an active
interest in Brianna's daily life, including instances where the
mother neglected to respond appropriately to the child's medical
needs or become engaged in her educational and social pursuits.
Similarly, Daub-Stearns averred that, after Kayden moved in with
her family, he was diagnosed and treated for attention deficit
hyperactivity disorder that required the creation of an
individualized educational program. The mother, however, refused
to acknowledge or take efforts to understand Kayden's special
needs.

      Family Court was reasonably concerned that, despite her
completion of rehabilitation for substance abuse, a parenting
class and related counseling, the mother had not demonstrated an
adequate appreciation of her parental duties and responsibilities
to the extent necessary for the return of the children to her
custody. In particular, the mother had made no attempt to secure
gainful employment or a means of transportation, and she stated
that she intended to seek government assistance in order to
support her family. Furthermore, at the time of the hearing, the
mother admitted to having consistently violated the terms of her
probation by traveling out-of-state to visit her brother – who
was awaiting sentencing upon his drug offense conviction –
without notifying her probation officer. Deferring to Family
Court's factual findings and credibility determinations (see
Matter of Kowalsky v Converse, 79 AD3d 1310, 1311 [2010]; Matter
of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d
1359, 1360 [2010], lv denied 15 NY3d 703 [2010]), we agree with
the court's conclusion that extraordinary circumstances existed
(see Matter of Battisti v Battisti, 121 AD3d at 1197-1198; Matter
of Carpenter v Puglese, 94 AD3d at 1369; Matter of James NN. v
Cortland County Dept. of Social Servs., 90 AD3d 1096, 1098
[2011]).
                              -4-                  517431

      Moreover, Family Court properly determined that the
children's best interests would be served by their continued
placement with their guardians. While the separation of the
children was not ideal, the court was satisfied that the children
were able to see each other during monthly visits, and both
children have clearly benefitted from their respective home
environments where their unique needs were being addressed.
Thus, we cannot say that the court abused its discretion in
concluding that a modification of the existing custody
arrangement would be contrary to the children's best interests
(see Matter of Battisti v Battisti, 121 AD3d at 1196-1197; Matter
of Marcus CC. v Erica BB., 107 AD3d at 1247; Matter of Golden v
Golden, 91 AD3d 1042, 1044-1045 [2012]).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
