Brittni P. v. Michael P.

210 A.D.3d 1338

178 N.Y.S.3d 281

In the Matter of BRITTNI P., Appellant,

v.MICHAEL P., Respondent.

533757

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

Calendar Date: October 18, 2022

Decided and Entered: November 23, 2022

Michelle I. Rosien, Philmont, for appellant.

Sandra M. Colatosti, Albany, for respondent.

Pamela J. Joern, East Chatham, attorney for the child.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from an order of the Family Court of Greene County (Terry J. Wilhelm, J.), entered July 13, 2021, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a son (born in 2014). Pursuant to a January 2017 order, the parties were awarded joint legal custody of the child, with primary physical custody to the father and parenting time to the mother as the parties could mutually agree. As relevant here, the order provided that the parties must refrain from being under the influence of alcohol or drugs in the presence of the child. In February 2021, the mother filed an amended petition for modification of the custody order, alleging a change in circumstances and seeking primary physical custody of the child. The father then filed a petition to enforce the order. Following a fact-finding hearing held in June 2021, Family Court dismissed the mother's amended petition, concluding that while she had demonstrated a change in circumstances, she failed to establish that the proposed custody modification would be in the best interests of the child. The court also dismissed the father's petition as moot. This appeal by the mother ensued.

As there is no dispute that a change in circumstances has occurred since entry of the January 2017 order – namely, that the mother has achieved stable housing and employment, completed mental health treatment and maintained a valid driver's license – the issue before us is whether the best interests of the child would be served by a modification of the custody and visitation arrangement (see Matter of Benjamin V. v. Shantika W., 207 A.D.3d 1017, 1018, 172 N.Y.S.3d 529 [3d Dept. 2022] ). "In making a best interests determination, Family Court must consider such factors as the quality of the parents’ respective home environments, the need for stability in the [child's life], each parent's willingness to promote a positive relationship between the child[ ] and the other parent and each parent's past performance, relative fitness and ability to provide for the child[ ]’s intellectual and emotional development and overall well-being" ( Matter of Jessica HH. v. Sean HH., 196 A.D.3d 750, 753, 151 N.Y.S.3d 449 [3d Dept. 2021] [internal quotation marks and citations omitted]).

At the hearing, the mother testified that she works full time as a retail manager and lives in a three-bedroom apartment with her boyfriend of two years, where the subject child and the mother's other child each have their own bedroom. It was the mother's testimony that she did not appear in court when the January 2017 order was issued because she had lost her job and car and had suffered a mental breakdown, but since that time she had participated in nine weeks of inpatient treatment and over a year and a half of outpatient treatment, and had been successfully discharged. The mother testified that her modification petition had been prompted by worries over the child appearing anxious, angry and dirty, and smelling of cigarettes, when she picked him up for her weekend visits. She was also concerned about the unkempt condition of the father's residence and his constant drinking. The mother submitted into evidence photographs depicting the father's apartment in total disarray. As for the father's drinking, the mother testified that each time she picked up or dropped off the child at the father's apartment, the father either smelled like alcohol or was drinking a beer. She had also observed the father in the child's presence with signs of impairment including "glossy eyes" and sitting on the couch without "mov[ing] really that much." The mother further mentioned an occasion when the father asked her to drive him to a gas station to buy beer.

The father, in turn, testified that he is an assistant manager of a grocery store, that he lives in an apartment where he has been for four years, and that he shares the apartment with the subject child and another child, an infant son of whom he has sole legal and physical custody. The father denied that he is an alcoholic and stated that he does not drink in the presence of his children, but will occasionally have a beer or two on the weekend. The father's aunt also testified, indicating that she sees the child every day that he is with the father and that the father properly cares for the child. Regarding the issue of drinking, she stated that the father likes beer and has "maybe one beer a night, maybe two."

Apart from the hearing testimony, Family Court also considered a court-ordered investigative report completed pursuant to Family Ct Act § 1034 by two Child Protective Services caseworkers. The report indicated that there were concerns with the father's history of alcohol abuse, reciting that the father had been arrested three times within the previous five years, twice for alcohol-related driving offenses, in 2015 and 2019, and once, during a traffic stop in 2018, for unlawfully possessing marihuana. According to the report, the child stated that his father "loves to drink beer" and drinks "the tall ones ... all day long." The child also said that the father has friends over to play video games, and they all drink beer together. Although the report mentioned that there were no safety issues in either the father's or the mother's home, it nevertheless noted a concern that the father's paramour, the mother of his other child, was not staying away from the father's apartment despite having been directed to do so, and that the subject child was fearful of the paramour as he had seen her stab the father in the neck with scissors.

In addition, Family Court considered a DWI screening and assessment of the father that was conducted in June 2020, in response to his 2015 arrest.¹ While the assessment report indicated that the father did not seem to have a substance abuse problem, it was apparent that the evaluator did not have all of the relevant information, as the report made no mention of the father's 2018 and 2019 arrests, and the only collateral contact listed therein was the father's aunt. In light of the incomplete nature of the report, the court had ordered the father to obtain another...