GARY v. CINDY (1999)

In these related proceedings, Gary L.W. appeals from separate orders of Family Court entered in October 1997.   In the first proceeding, Gary L.W. appeals from an order that denied his petition seeking sole custody of his infant son Ethan A. A., maintained custody of Ethan with his mother, granted Gary L.W. supervised visitation, and ordered him to complete psychological counseling.   Gary L.W. contends that the court erred in denying his petition for custody without conducting a hearing.

The second proceeding was brought pursuant to Family Court Act article 10 and alleged that Gary L.W. abused and neglected his then six-year-old daughter Ashley L.W. Prior orders in that proceeding found Ashley to be neglected, placed her in the custody of petitioner, Oswego County Department of Social Services (DSS), for 12 months, granted Gary L.W. supervised visitation and ordered him to attend counseling sessions.   Gary L.W. appeals from an order, entered following a hearing, that granted the petition of DSS for an extension of placement for 12 months.   The court also ordered that Gary L. W.'s visitation with Ashley continue to be supervised and directed that Gary L.W. complete all counseling previously ordered.   On appeal from that order, Gary L.W. contends that the court erred in granting an extension of placement and was biased.

 Addressing first the appeal from the order extending the article 10 placement, we conclude that the court's handling of the matter evinced no bias and that the extension of placement was justified by the refusal of Gary L.W. to complete the counseling previously ordered by the court as a condition of his regaining custody of Ashley (cf., Matter of Jennifer D., 172 A.D.2d 1023, 1023-1024, 569 N.Y.S.2d 281).   Further, the psychological evidence adduced at the hearing established that Gary L.W. refuses to take responsibility for his past physical and sexual abuse of Ashley, that he remains an unfit parent, that Ashley should remain in foster care, and that contact between Gary L.W. and Ashley should continue to be supervised.

 With regard to the appeal in the parallel proceeding, we conclude that, in these unique circumstances, the court was justified in summarily denying the petition for custody.   At the time it denied the custody petition, the court had just completed a hearing on the petition of DSS for an extension of the article 10 placement of Ashley.   The court was thus familiar with the family situation and in particular was acquainted with the background and character of Gary L.W. The court had just heard testimony from an examining psychologist, who described Gary L. W.'s “borderline intelligence”, poor judgment, and lack of insight into the prior physical and sexual abuse of Ashley.   Further, the court was aware of Gary L. W.'s obstinate refusal to complete counseling.   In view of that demonstrated unfitness, the court did not err in summarily denying Gary L.W. custody of his son.

Order unanimously affirmed without costs.

MEMORANDUM: