Jacklyn PP. v. Jonathan QQ.

221 A.D.3d 1293

201 N.Y.S.3d 300

In the Matter of JACKLYN PP., Respondent,

v.JONATHAN QQ., Appellant.

(And Another Related Proceeding.)

533906

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

Calendar Date: October 17, 2023

Decided and Entered: November 22, 2023

Rural Law Center of New York, Inc., Plattsburgh (Kristin A. Bluvas of counsel), for appellant.

James P. Youngs, Syracuse, for respondent.

Larisa Obolensky, Delhi, attorney for the child.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Fisher and Powers, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from an order of the Family Court of Otsego County (John F. Lambert, J.), entered June 17, 2021, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 8, finding respondent to have committed a family offense, and issued an order of protection.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of one child (born in 2017). The mother and the father were in a relationship for approximately six years and co-parented their child until the July 2020 termination of their relationship. In that same month, the mother filed a family offense petition against the father alleging, among other things, that he harassed, stalked and forcibly touched her. The petition sought an order of protection requiring the father to stay away from her, their child and her daughter, which Family Court temporarily issued. On the same day, the father filed a custody petition pursuant to Family Ct Act article 6.

A joint fact-finding hearing was held on both petitions. At the conclusion of the hearing, Family Court issued a decision finding that the father committed the family offense of stalking, continued the temporary order of protection, and scheduled the matter for a dispositional hearing on the family offense petition. Thereafter, the court issued a permanent order of protection and a final order of custody. In February 2021, prior to the dispositional hearing, the father filed an order to show cause seeking to vacate the terms of the temporary order of protection and to temporarily award him legal and physical custody of the child. As grounds for this, he alleged that on August 16, 2020, the mother appeared at his residence, threw items, pushed his air conditioner through the window and screamed at him in the presence of the child; and that on September 8, 2020 (after he was served with the temporary order of protection) the mother, without informing him, dropped off the child at his home.¹ The court ordered a Family Ct Act § 1034 investigation, adjourned the dispositional hearing pending the results of the investigation and vacated the stay-away provisions of the temporary order with respect to the child. The court further issued a temporary order granting the father parenting time with the child from Friday at 3:30 p.m. until Sunday at 7:30 p.m., the parties to exchange the child at the paternal grandmother's house and the parties to communicate by swapping a composition notebook. Upon learning that the Family Ct Act § 1034 report was unfounded, the court scheduled a dispositional hearing for April 2021.² Thereafter, an order was entered on June 17, 2021 granting, as relevant here, the mother sole legal custody and primary physical custody of the child, with parenting time to the father and issuing a two-year order of protection directing the father to, among other things, stay away from the mother and her daughter. The father appeals.

"In a family offense proceeding pursuant to Family Ct Act article 8, the petitioner bears the burden of proving, by a fair preponderance of the evidence (see Family Ct Act § 832 ), that the respondent committed one of the family offenses enumerated in Family Ct Act § 821(1)(a)" ( Matter of Heather E. v. Christopher F., 189 A.D.3d 1937, 1937, 138 N.Y.S.3d 267 [3d Dept. 2020] [citations omitted]; see Matter of Awawdeh v. Awawdeh, 217 A.D.3d 1109, 1111, 190 N.Y.S.3d 527 [3d Dept. 2023] ). "Whether a family offense has been committed is a factual issue to be resolved by Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal" ( Matter of Putnam v. Jenney, 168 A.D.3d 1155, 1156, 90 N.Y.S.3d 678 [3d Dept. 2019] [internal quotation marks and citations omitted]; see Matter of Susan WW. v. Alan WW., 161 A.D.3d 1249, 1250, 75 N.Y.S.3d 692 [3d Dept. 2018] ). Where, as here, the court concludes that the respondent committed the family offense of stalking, but does not articulate the specific subsection or degree, "this Court may independently review the record and determine whether the evidence supports Family Court's finding that the respondent committed one or more family offense" ( Matter of Pauline DD. v. Dawn DD., 212 A.D.3d 1039, 1040, 181 N.Y.S.3d 771 [3d Dept. 2023] [internal quotation marks and citation omitted], lv denied 39 N.Y.3d 915, 2023 WL 3960574 [2023] ; see Matter of Bedford v. Seeley, 176 A.D.3d 1338, 1340, 112 N.Y.S.3d 295 [3d Dept. 2019] ).

Upon our review of the record, we find that a fair preponderance of the evidence supports the conclusion that the father committed the family offenses of stalking in the third degree and fourth degree. "A person is guilty of stalking in the third degree when he or she[,] ... [w]ith intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury" ( Penal Law § 120.50[3] ). Additionally, "[a] person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct ... is likely to cause reasonable fear of material harm to the physical health, safety or property of such person" ( Penal Law § 120.45[1] ).

In support of the offense of stalking in the third degree, the mother testified that the impetus for filing the petition was that in early July 2020 the father walked into her house at about 7:00 a.m., pulled a gun out from his hip holster, pointed it at her and made threats to her and a friend who was also present. On another occasion, the father followed her to a park, reached into her car, grabbed her cell phone and attempted to drive off while dragging her. The mother further testified that in early July 2020, the father walked into her house, called her a "w* *re," shoved his hands down her pants, grabbed her "private area" and threw her to the floor resulting in bruising on her leg and marks on her collarbone.

As to stalking in the fourth degree, the mother testified that the father would frequently park and sit outside of her workplace, severely questioned her as to what she was doing, who she was with and to whom she had been talking and would yell at her in an effort to start an altercation. She further testified that on multiple occasions the father drove by her house, parked outside of her house late at night, knocked on her window and photographed her vehicle. Indeed, she averred that the father's habit of continuously letting himself into her house necessitated her changing the locks.³ The mother stated that as a result of his behavior, she was afraid of the father, which several times resulted in her seeking refuge at a hotel, and that on one occasion the father followed her to the hotel and tried to get the receptionist to divulge her room number.

The father categorically denied engaging in any behavior that would constitute a family offense and testified that he went to the mother's home and place of employment for the legitimate purpose of exchanging the child.⁴ Mindful that the requisite intent to harass, annoy or alarm may be inferred from the conduct itself or the surrounding circumstances (see Matter of Stefanow v. Stefanow, 214 A.D.3d 1215, 1217, 185 N.Y.S.3d 836 [3d Dept. 2023] ; Matter of Lynn TT. v. Joseph O., 129 A.D.3d 1129, 1130, 10 N.Y.S.3d 702 [3d Dept. 2015] ), and accepting Family Court's credibility determinations, we see no basis to disturb Family Court's finding that the mother satisfied her burden of establishing, by a preponderance of the evidence, the underlying family offenses (see Matter of Derek KK. v. Jennifer KK., 196 A.D.3d 765, 770, 151 N.Y.S.3d 491 [3d Dept. 2021] ; Matter of Allen v. Emery, 187 A.D.3d 1339, 1342, 133 N.Y.S.3d 662 [3d Dept. 2020] ). Thus, the court did not err in granting the mother's request for a two-year stay-away order of protection (see Family Ct Act §§ 841[d] ; 842]).

The father next contends that granting the mother sole custody was not in the child's best interests and that Family Court erred in considering the father's family offenses in determining custody. Initially, we are unpersuaded by the father's argument that during the dispositional hearing Family Court impermissibly allowed testimony regarding the August 16, 2020 incident at the father's house without reopening the fact-finding hearing, as "the court has broad discretion to establish the parameters of proof and may consider any relevant matter in evaluating a child's best interests" ( Matter of Colona v. Colona, 125 A.D.3d 1123, 1125–1126, 4 N.Y.S.3d 333 [3d Dept. 2015] ; see Matter of Scott LL. v. Rachel MM., 98 A.D.3d 1197, 1197, 951 N.Y.S.2d 254 [3d Dept. 2012] ).

Turning to the merits, "[w]hen making an initial custody determination, Family Court's primary focus is the best interests of the child, which requires an analysis of such factors as each parent's relative fitness and past performance, ability to provide for the child's well-being and furnish a stable home environment, and willingness to foster relationships with the other parent" ( Matter of Zaida DD. v. Noel EE., 177 A.D.3d 1220, 1220, 115 N.Y.S.3d 472 [3d Dept. 2019] [internal quotation marks and citations omitted]; see Matter of William Z. v. Kimberly...