KATHERINE v. LAWRENCE

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of KATHERINE D., Petitioner-Appellant, v. LAWRENCE D., Mary D. and Brian R.D., Respondents-Respondents.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Rebecca A. Crance of Counsel), for Petitioner-Appellant. Mark S. Williams, Public Defender, Olean (Claudia G. Catalano of Counsel), for Respondent-Respondent Lawrence D. J. Richardson Lippert, II, Law Guardian, Franklinville, for Luke D.

 Petitioner mother commenced this proceeding to modify a prior order that, inter alia, granted custody of her child to respondents Mary D. and Brian R.D., the child's paternal grandparents.   By her petition, petitioner sought custody of the child.   We agree with petitioner that Family Court erred in dismissing the petition without first finding that extraordinary circumstances exist.  “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' ” (Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277).   Extraordinary circumstances must be shown where, as here, the prior order granting custody of the child to nonparents was made upon consent of the parties (see Matter of Guinta v. Doxtator, 20 A.D.3d 47, 53, 794 N.Y.S.2d 516;  Gary G., 248 A.D.2d at 981, 670 N.Y.S.2d 270).   We need not remit the matter for a new hearing, however, because the record is adequate to enable us to apply the extraordinary circumstances test (see Gary G., 248 A.D.2d at 981, 670 N.Y.S.2d 270).

 The testimony of petitioner established that extraordinary circumstances exist in that petitioner is unfit to care for the child (see Matter of Miller v. Orbaker, 17 A.D.3d 1145, 1146, 793 N.Y.S.2d 840, lv. denied 5 N.Y.3d 714, 806 N.Y.S.2d 165, 840 N.E.2d 134;  Matter of Pamela S.S. v. Charles E., 280 A.D.2d 999, 1000, 720 N.Y.S.2d 669).   Petitioner was delusional during parts of her testimony, many of her answers were nonsensical and incredible, and it was apparent that petitioner suffered from a mental illness.   Although petitioner had been in treatment for mental illness, at the time of the hearing she denied having a mental illness and testified that she was not seeking any treatment or on medication.   Her testimony also raises concerns about the child's safety during visitation with her.   Having determined that extraordinary circumstances exist, we further conclude that the record supports the court's determination that the best interests of the child would be served by continuing the present custodial arrangement (see Gary G., 248 A.D.2d at 982, 670 N.Y.S.2d 270).

 We reject the remaining contention of petitioner that she was denied effective assistance of counsel.   It is not the role of this Court to second-guess the attorney's tactics or trial strategy (see Matter of James HH., 234 A.D.2d 783, 785, 652 N.Y.S.2d 633, lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644).   The failure of counsel to call petitioner's therapist to testify or to introduce his report as evidence may have been strategic in that his testimony and report may not have been wholly favorable to petitioner (see Matter of Angela Marie N., 223 A.D.2d 423, 424, 636 N.Y.S.2d 758, lv. denied 88 N.Y.2d 814, 651 N.Y.S.2d 15, 673 N.E.2d 1242).   Petitioner failed to show how counsel's remaining alleged deficiencies prejudiced her (see Matter of Anson v. Anson, 20 A.D.3d 603, 605, 798 N.Y.S.2d 185, lv. denied 5 N.Y.3d 711, 806 N.Y.S.2d 161, 840 N.E.2d 130;  Matter of Whitley v. Leonard, 5 A.D.3d 825, 827, 772 N.Y.S.2d 620).   Based on our review of the record, we conclude that petitioner received meaningful representation (see Matter of Westfall v. Westfall, 28 A.D.3d 1229, 813 N.Y.S.2d 623, lv. denied 7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244;  Matter of Starkey v. Starkey, 247 A.D.2d 894, 895, 668 N.Y.S.2d 526).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: