On September 23, 2011, Amber "L." (hereinafter "Grandmother") filed a custody petition against her daughter, Jasmine "P." (hereinafter "Mother") seeking custody of the mother's twin children, Sarah "P." and Kasey "P.", who were born on December 2, 2010. The twins do not have a legally established father. The central issue in the case is whether or not the petitioner has established that extraordinary circumstances exist which would permit the Court to engage in a best-interest analysis. For the reasons stated below, the Court answers that question in the negative and therefore, is compelled to dismiss the petition.

On August 31, 2011, the mother before going to work changed the twins' diapers and saw no signs of injury or bruising. When the mother left for work, she left the twins in the care of her boyfriend, who she resided with at the time, Brian "S.". Later that day, Mr. "S." brought the twins to the grandmother's residence. While at the grandmother's residence, the grandmother [*2]changed Sarah's diaper and observed lacerations to the child's crotch area and bruises to the child's leg. The grandmother asked Mr. "S." what had happened and Mr. "S." indicated that he did not know. The grandmother brought Sarah to the emergency room where she was examined by medical professionals. Pursuant to an informal agreement of the parties, on that date the subject children began residing with the grandmother.

On September 22, 2011, Clinton County Department of Social Services (hereinafter "the Department") filed a petition under Article 10 of the Family Court Act alleging that Mr. "S." had abused and neglected the children who are the subject of this proceeding. On September 23, 2011, the grandmother filed the instant petition under Article 6 of the Family Court Act seeking custody of the subject children. On September 26, 2011, at the initial appearance on both petitions and upon the consent of both the grandmother and the mother, the Court awarded the grandmother temporary custody and limited the mother's contact to supervised visitation. In the Department's Article 10 action, the Court issued a temporary order of protection requiring that Mr. "S." stay a 1000 feet away from the subject children. Both temporary orders remained in effect until the date of the trial. The Department of Social Services never filed a petition under Article 10 of the Family Court Act against the mother.

The Department's petition against Mr. "S." contains the following allegations. Mr. "S." was the primary care giver and legally responsible for the care of the children, Sarah and Kasey, on August 31, 2011 from the time their mother left for work at approximately 3:30 in the afternoon and until the children were brought to the grandmother's home by Mr. "S." at approximately 6:00 p.m. On August 31, 2011, an emergency room physician described Sarah as having right and left thigh bruising resembling fingerprints, an enlarged buttocks and vaginal area and lacerations in the perineum. Such injuries were non-accidental. Mr. "S." is unable to provide any credible explanation for the child's injuries and describes that he did change Sarah's diaper at approximately 4:30 in the afternoon on August 31, 2011, confirms that he did see a bloody diaper but is inconsistent on what occurred during the changing. Mr. "S." created an substantial risk of physical injury to the child Sarah, by other than accidental means which is likely to cause a protracted impairment of physical or emotional health in the child and therefore, Sarah was an abused child. Mr. "S." failed to exercise a minimum degree of care by unreasonably inflicting or allowing to be inflicted harm to Sarah on the afternoon of August 31, 2011 and therefore, Sarah was a neglected child. Based upon these same allegations, the Department alleged that Mr. "S." derivatively abused and neglected Kasey.

While being represented by retained, experienced counsel, Mr. "S." affirmatively decided not to contest the allegations contained in the Article 10 petition. Mr. "S." and his counsel withdrew their appearance in the Article 10 proceeding after confirming that they understood that, upon their withdraw, the Department would move the Court for an order finding all the allegations in the Article 10 petition were true upon Mr. "S."'s default. During the dispositional phase of the Article 10 action, the Court, upon the consent of all appearing parties including the mother, issued an order of protection directed towards Mr. "S." requiring Mr. "S." to stay away from the subject children until the children's eighteenth birthday. The mother was present during all appearances in the Article 10 action.

Notwithstanding the above, the mother has maintained her engagement to Mr. "S." and testified that she would still like to marry him as soon "as this matter is finished". When [*3]questioned of what she meant given that the Article 10 order of protection will not expire until 2028, the mother indicated that she was willing to wait that long to marry and reside with Mr. "S.". It is clear from her testimony that the mother cannot or will not accept the fact that Mr. "S." inflicted injuries to Sarah. The mother testified that in the event that this petition was dismissed and she regained custody of her children, she would continue her relationship with Mr. "S.", but honor the Court's Article 10 Orders of Protection which require Mr. "S." to stay away from the subject children.

It is a well established standard under New York State Law that " [A] biological 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 {citations omitted}.' A finding of extraordinary circumstances is rare, and the circumstances must be such that they drastically affect the welfare of the child' {citations omitted}.' ... [t]he nonparent bears the heavy burden of proving extraordinary circumstances {citation omitted}." Matter of Ramos v Ramos, 75 AD3d 1008, 905 NYS2d 717 [3 Dept 2010]. See also, Matter of Arlene Y. V Warren County Department of Social Services, 76 AD3d 720, 906 NYS2d 645 [3 Dept 2010] (grandmother failed to demonstrate extraordinary circumstances despite Article 10 finding of neglect against the mother where grandmother failed to demonstrate that the mother was unfit, that the mother had abandoned the children, that mother failed to plan so as to constitute persistent neglect, or that the children had resided with the grandmother such that a prolonged separation from the mother constituting an extended disruption of custody existed. The Court also expressed concerns about the grandmother).

In the instant case, no evidence was presented that establishes surrender, abandonment, persistent neglect, or disruption of custody over an extended period of time. The question before the Court is whether the grandmother demonstrated that the mother is unfit because of her ongoing relationship with Mr. "S.". No evidence was presented that Ms. "P." permitted contact between Mr. "S." and the subject children after August 31, 2011. Of course permitting contact, without detection, would have been difficult because the children have been with the grandmother since August 31, 2011 and the mother's visitation has been supervised since September 26, 2011.

The mother maintains that she will respect the Article 10 order requiring Mr. "S." to stay away from the subject children, (compare, Matter of Amelia W. [Gloria D.W.], 77 AD3d 841, 908 NYS2d 742 [2 Dept 2010]. See also, Matter of Lori MM v Amanda NN, 75 AD3d 774, 904 NYS2d 810 [3 Dept 2010] (extraordinary circumstances found where child [approximately six years old at the time of trial] lived vast majority of life with grandmother, mother of subject child continued to reside with boyfriend who had abused mother, threatened child, and locked child in a cabinet, and, in addition, mother exercised only minimal visitation with the subject child while the child was outsider the mother's care)). Although the Court has concerns regarding the mother's willingness to cooperate with the Court's order requiring Mr. "S." to stay away from the children, no evidence was presented to the contrary.

In the final analysis, there is no evidence that establishes that the mother could have reasonably foreseen that Mr. "S." would injure her child prior to August 31, 2011. Notwithstanding her beliefs, there is no evidence that the mother has allowed Mr. "S." to be [*4]around her children since August 31, 2011 and there is no evidence to support the conclusion that she will conspire to violate this Court's order in the future which prohibits Mr. "S." from being around these children. What is left is Ms. "P."'s bad judgment in choosing to remain in a relationship with a man who abused her child. That alone does not render the mother unfit.

THEREFORE, IT IS HEREBY

ORDERED, that the petitions herein are hereby dismissed with prejudice; and it is further

ORDERED, that all temporary orders of this Court issued with regard to this matter bearing Docket Nos.: V-XXXXX-XX and V-XXXXX-XX are hereby terminated; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.

SO ORDEREDENTER

Dated:Plattsburgh, New York

November ____, 2011

Hon. Timothy J. Lawliss

Acting Supreme Court Justice