Evans v. Smith

Appellate Division of the Supreme Court of New York

Evans v. Smith

28 A.D.3d 480, 812 N.Y.S.2d 637

Appellate Division of the Supreme Court of the State of New York·Decided April 4, 2006·Published

Opinion

[481] In related child custody proceedings pursuant to Family Court Act article 6, the grandmother appeals from an order of the Family Court, Westchester County (Duffy, J.), entered August 18, 2004, which, after a hearing, denied her petition for custody and directed that the subject child remain in the care and custody of the Westchester County Department of Social Services.

Ordered that the order is affirmed, without costs or disbursements.

After correctly finding the existence of extraordinary circumstances {see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Wolf v Rothman, 19 AD3d 430 [2005]), the Family Court properly denied the appellant custody of her granddaughter, Amia. The appellant’s own testimony revealing her past failure to protect her children and, more recently, her failure to report her daughter’s abuse of Amia’s older sister, which ultimately resulted in the sister’s death at the age of two, constituted a sound and substantial basis for the Family Court’s determination (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Walsh v Badick, 23 AD3d 487 [2005]; Matter of Gilleo v Lienhard, 19 AD3d 490 [2005]; Kuncman v Kuncman, 188 AD2d 517 [1992]). Miller, J.P., Ritter, Spolzino and Dillon, JJ., concur.

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[481] In related child custody proceedings pursuant to Family Court Act article 6, the grandmother appeals from an order of the Family Court, Westchester County (Duffy, J.), entered August 18, 2004, which, after a hearing, denied her petition for custody and directed that the subject child remain in the care and custody of the Westchester County Department of Social Services.

Ordered that the order is affirmed, without costs or disbursements.

After correctly finding the existence of extraordinary circumstances {see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Wolf v Rothman, 19 AD3d 430 [2005]), the Family Court properly denied the appellant custody of her granddaughter, Amia. The appellant’s own testimony revealing her past failure to protect her children and, more recently, her failure to report her daughter’s abuse of Amia’s older sister, which ultimately resulted in the sister’s death at the age of two, constituted a sound and substantial basis for the Family Court’s determination (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Walsh v Badick, 23 AD3d 487 [2005]; Matter of Gilleo v Lienhard, 19 AD3d 490 [2005]; Kuncman v Kuncman, 188 AD2d 517 [1992]). Miller, J.P., Ritter, Spolzino and Dillon, JJ., concur.

Evans v. Smith, 28 A.D.3d 480, 812 N.Y.S.2d 637 (N.Y. Ct. App. 2006).

Pincite

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Opinion

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