SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1033
CAF 15-00564
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.
IN THE MATTER OF TRISTYN R. AND ADDASYN R.
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CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER
SERVICES, JENNA W. AND TREVOR W.,
PETITIONERS-RESPONDENTS;
JOSHUA R., RESPONDENT,
AND JACQUELINE Z., RESPONDENT-APPELLANT.
(APPEAL NO. 2.)
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR RESPONDENT-APPELLANT.
WENDY G. PETERSON, OLEAN, FOR PETITIONER-RESPONDENT CATTARAUGUS COUNTY
DEPARTMENT OF SOCIAL SERVICES.
MICHAEL D. BURKE, ATTORNEY FOR THE CHILDREN, OLEAN.
Appeal from an amended order of the Family Court, Cattaraugus
County (Michael L. Nenno, J.), entered March 24, 2015 in a proceeding
pursuant to, inter alia, Family Court Act article 10. The amended
order, among other things, granted custody of Addasyn R. and Tristyn
R. to the children’s maternal aunt and uncle.
It is hereby ORDERED that the amended order so appealed from is
unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent mother appeals from an
order of disposition that granted custody of her child, Tristyn R., to
the child’s maternal aunt and uncle. In appeal No. 2, the mother
appeals from an amended order of custody and disposition that, inter
alia, adjudged that the mother had violated an order of protection,
and granted custody of the children, Tristyn R. and Addasyn R., to the
children’s maternal aunt and uncle. We note at the outset that the
mother’s appeal from the order in appeal No. 1 must be dismissed
inasmuch as that order was superseded by the subsequent order in
appeal No. 2 (see Matter of Tuttle v Mateo [appeal No. 3], 121 AD3d
1602, 1603; Matter of Eric D. [appeal No. 1], 162 AD2d 1051, 1051).
We reject the mother’s contention that the amended order in
appeal No. 2 must be vacated. The order of protection directed the
mother not to allow respondent father to have unsupervised contact
with the children. Family Court credited the testimony that the
mother allowed the father to have unsupervised contact with the
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CAF 15-00564
children on numerous occasions. “ ‘According deference to that
credibility determination, as we must, we conclude that petitioner
established by clear and convincing evidence that [the mother]
willfully violated the . . . order of protection’ ” (Matter of Schoenl
v Schoenl, 136 AD3d 1361, 1362; see Matter of Duane H. v Tina J., 66
AD3d 1148, 1149; see also Matter of Da’Shunna M.H. [Delbert W.H.], 133
AD3d 1381, 1382; Matter of William S., 231 AD2d 950, 951). We further
conclude that the court properly found that there are extraordinary
circumstances justifying an inquiry into whether nonparents could
obtain custody of the children as against the mother, and that it
properly determined that it is in the best interests of the children
to be placed in the custody of their maternal aunt and uncle (see
generally Matter of Suarez v Williams, 26 NY3d 440, 446; Matter of
McNeil v Deering, 120 AD3d 1581, 1582, lv denied 24 NY3d 911; Matter
of Beth M. v Susan T., 81 AD3d 1396, 1397).
Entered: November 10, 2016 Frances E. Cafarell
Clerk of the Court