Ratliff v. Glanda

Mikoll, J. P. Appeal from an order of the Supreme Court (Jung, J.), entered March 30, 1998 in Essex County, which, upon referral of the matter from Family Court, inter alia, dismissed petitioners’ application, in a proceeding pursuant to Family Court Act article 6, for custody of respondent Jeffrey T. Glanda’s children. On September 19, 1997, respondent Jeffrey T. Glanda (hereinafter respondent) was arrested and thereafter indicted for, inter alia, the murder of his wife, Jeannine Ratliff, the mother of two of his children, a son (born in 1985) and a daughter (born in 1989). Immediately following respondent’s arrest, petitioner Mary I. Ratliff and her husband, the maternal grandparents,1 took the children into their home, enrolled them in school, and received temporary guardianship and temporary custody of the children. Petitioners2 then commenced this proceeding seeking, inter alia, custody of the children.3 Supreme Court dismissed the petition and the temporary custody and guardianship letters issued to the Ratliffs, and found that the children were to remain in the custody of respondent, permitting him to make arrangements for their care. Respondent placed the children in the care of his sister and her husband, respondents Cheryl Vaillancourt and Donald Vaillancourt. Petitioners subsequently filed an amended and second amended petition for custody, which, inter alia, added the Vaillancourts and Agatha Glanda, the paternal grandmother, as respondents. Thereafter, respondents cross-petitioned for custody of the children. After a hearing, Supreme Court dismissed the petition and cross petition finding that petitioners did not have statutory standing to seek custody and, as to common-law standing, that petitioners failed to show extraordinary circumstances. The court determined that, to establish extraordinary circumstances, petitioners needed to allege and prove that respondent murdered the children’s mother. The court further found that even assuming the existence of extraordinary circumstances, awarding petitioners custody was not in the children’s best interests. Visitation was awarded to petitioners. This appeal ensued. [817] Petitioners contend that Supreme Court erred in dismissing the petition as insufficient on its face for lack of common-law standing based on the court’s finding that they failed to establish extraordinary circumstances. “[Ijntervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstances which would drastically affect the welfare of a child” (Matter of Bennett v Jeffreys, 40 NY2d 543, 549). A nonpárent lacks standing to seek custody unless the nonparent can establish that the parent relinquished his or her superior custodial rights by establishing one of the aforementioned circumstances (see, Family Ct Act § 651). Once petitioners have established extraordinary circumstances, the court must consider the best interest of the children in determining whether to terminate respondent’s custodial rights (see, Matter of Bennett v Jeffreys, supra, at 548; Matter of Lynda A.H. v Diane T.O., 243 AD2d 24, 26, lv denied 92 NY2d 811). We conclude, contrary to Supreme Court’s determination, that the indictment and incarceration of respondent pending his criminal trial for the murder of the children’s mother are sufficient, standing alone, to establish extraordinary circumstances. Petitioners need not submit proof that respondent committed the murder. Petitioners’ amended petition was thus sufficient on its face to allege extraordinary circumstances based on respondent’s indictment and incarceration for the murder of the children’s mother (see, Matter of Bennett v Jeffreys, supra, at 550). Having found extraordinary circumstances, we now consider petitioners’ second contention, that the placement of the children with the Vaillancourts was not in their best interest. We note that in granting custody to a nonparent, the court need not terminate paternal rights (see, id., at 549; Matter of Benitez v Lalano, 39 NY2d 758, 759). We hold that the record supports Supreme Court’s determination that, under the best interests of the children analysis, termination of respondent’s legal custody of the children and the nullification of the arrangements made by him with the Vaillancourts for their care during his absence is not warranted. The testimony of the children in a Lincoln hearing presents the most cogent reason to uphold the placement of the children with the Vaillancourts. The children indicated that, for the time being, they prefer to stay with the Vaillancourts, who [818] obviously have supplied them with a suitable home and tended to their physical and emotional needs, especially in being supportive of the children’s desire to love and visit their father. The Vaillancourts also have afforded the children’s mother’s family ready access to the children for visitation. Petitioners, on the other hand, have expressed their anger and antagonism toward respondent. The children (particularly the older child) are very conscious of, and unhappy with, petitioners’ ill will against their father. Further, the children have adjusted to their new home and school well; they have weathered a terrible period in their life successfully and have stabilized emotionally to a great extent. They have made new friends and they appear content under the present arrangements. A further move may undo the gains they have made. Added to these very weighty considerations, we observe that respondent has not been challenged as to his fitness as a parent by any authorized agency (see, Matter of Bennett v Jeffreys, supra, at 545). His absence from the children is involuntary and the arrangements he has made for them are satisfactory. We note too that the Law Guardian recommends that the children remain with the Vaillancourts. Finally, petitioners contend that the children’s Law Guardian did not effectively represent them. We disagree. The Law Guardian played an active role throughout the trial in the examination of witnesses, requested psychological evaluations of the children, and her analysis of the law and circumstances of the case was thorough (see, Matter of Jamie TT., 191 AD2d 132, 136-137; see also, Matter of Pratt v Wood, 210 AD2d 741, 742). Mercure, Crew III and Yesawich Jr., JJ., concur. Footnotes [1] The grandfather is now deceased. [2] The other petitioner is Jerri T. Ratliff, the maternal aunt. [3] This proceeding was initially commenced in Family Court and subsequently transferred to Supreme Court by order dated October 6, 1997.