Tara DD. v. Seth CC.

184 N.Y.S.3d 458

In the Matter of TARA DD., Respondent,

v.SETH CC., Appellant.

(And Another Related Proceeding.)

532702

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

Calendar Date: January 17, 2023

Decided and Entered: March 2, 2023

Dennis B. Laughlin, Cherry Valley, for appellant.

Karen A. Leahy, Cortland, for respondent.

Michelle E. Stone, Vestal, attorney for the child.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from an order of the Family Court of Tompkins County (John C. Rowley, J.), entered November 13, 2020, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of the subject child (born in 2009). Pursuant to a September 2018 custody order on agreement, the mother was granted sole legal custody and primary placement of the child with the father having a set schedule of parenting time on alternating weekends.¹ The mother thereafter filed a petition to modify the prior order, seeking to limit the father's parenting time. After ordering an investigation pursuant to Family Ct Act § 1034, Family Court issued a temporary order limiting the father's parenting time to supervised or public place visitation. The father answered and filed a cross-petition seeking joint custody and increased parenting time.

After a fact-finding hearing and a Lincoln hearing, Family Court issued a written decision granting the mother's petition and dismissing the father's cross-petition. Family Court determined that the mother had established a change in circumstances based upon the father's failure to properly supervise the child, evidence that the father had permitted a marihuana-growing operation in his home and the father's "serious deficiencies in housekeeping."

Further, Family Court determined that unsupervised parenting time with the father was not in the child's best interests. The court then issued a final order of custody, consistent with its findings, which granted the mother sole legal custody and primary placement, with the father having certain supervised and/or public place visitation with the child. The father appeals.²

We affirm. "A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child" ( Matter of Nicole B. v. Franklin A., 210 A.D.3d 1351, 1353, 178 N.Y.S.3d 286 [3d Dept. 2022] [internal quotation marks and citations omitted]). "A change in circumstances is demonstrated through new developments or changes that have occurred since the previous custody order was entered" ( Matter of David JJ. v. Verna–Lee KK., 207 A.D.3d 841, 843, 170 N.Y.S.3d 742 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Pierre N. v. Tasheca O., 173 A.D.3d 1408, 1408, 105 N.Y.S.3d 135 [3d Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5382487 [2019] ). Noting Family Court's superior position in terms of its ability to directly observe and evaluate any witnesses during a fact-finding hearing, "we accord great deference to its factual findings and credibility assessments and will not disturb its determination if supported by a sound and substantial basis in the record" ( Matter of Andrea II. v. Joseph HH., 203 A.D.3d 1356, 1358, 164 N.Y.S.3d 714 [3d Dept. 2022] [internal quotation marks and citation omitted]; see Matter of Joseph II. v. Brandy JJ., 210 A.D.3d 1315, 1319, 179 N.Y.S.3d 382 [3d Dept. 2022] ).

Without fully recounting the extensive testimony and other evidence submitted at the fact-finding hearing, it is our view that the record firmly supports Family Court's determination that a change in circumstances occurred since the entry of the September 2018 order. Family Court found, and the record confirms, that the child had exhibited concerning behavior during past interactions with other children, including his paternal half siblings who were often present at the father's home, and that the father was aware of those behavioral issues and the risks they posed to the child and others. Despite his prior knowledge of the child's behavioral issues, an incident between the subject child and one of his paternal half siblings occurred while under the father's care, which was directly attributable to his failure to provide adequate supervision. Contrary to the father's contention, although this event allegedly occurred in the summer of 2018, before entry of the custody order that the parties were seeking to modify through this proceeding, it was not reported until November 2018 and, as such, may properly satisfy the change in circumstances requirement (see Matter of Kiernan v. Kiernan, 114 A.D.3d 1045, 1046, 980 N.Y.S.2d 620 [3d Dept. 2014] ; see also Matter of Ayesha FF. v. Evelyn EE., 160 A.D.3d 1068, 1069–1070, 74 N.Y.S.3d 131 [3d Dept. 2018], lv dismissed & denied 31 N.Y.3d 1131, 81 N.Y.S.3d 354, 106 N.E.3d 737 [2018] ; Matter of Tracey L. v. Corey M., 151 A.D.3d 1209, 1211, 55 N.Y.S.3d 828 [3d Dept. 2017] ). Further, we reject the father's assertion that the Family Ct Act § 1034 investigation into an alleged marihuana-growing operation at his home, which was ultimately deemed unfounded, conclusively resolves this issue in his favor. Family Court was free to credit the testimony and photographic evidence of the growing operation presented during the fact-finding hearing, which, alongside the Family Ct Act § 1034 report noting the father's suspicious conduct and the strong odor of marihuana in the home during the investigators’ initial visit, provide ample evidence supporting that allegation (see generally Janeen MM. v. Jean–Philippe NN., 183 A.D.3d 1029, 1030–1031, 123 N.Y.S.3d 746 [3d Dept. 2020], lv dismissed 35 N.Y.3d 1079, 130 N.Y.S.3d 425, 154 N.E.3d 11 [2020] ; Matter of Jack NN. [Sarah OO.], 173 A.D.3d 1499, 1502, 105 N.Y.S.3d 146 [3d Dept. 2019], lvs denied 34 N.Y.3d 904, 112 N.Y.S.3d 686, 698, 136 N.E.3d 419, 434 [2019]). Finally, the record establishes that there were ongoing hygienic concerns with the father's primary residence, evidenced by several reported instances of the paternal half siblings contracting lice, pinworms and scabies following visits with the father (see Matter of Michael GG. v. Melissa HH., 97 A.D.3d 993, 994, 948 N.Y.S.2d 459 [3d Dept. 2012] ; Matter of Drew v. Gillin, 17 A.D.3d 719, 720–721, 792 N.Y.S.2d 691 [3d Dept. 2005] ).³

As the record satisfactorily confirms the requisite change in circumstances, we turn to whether Family Court's custodial determination is in the best interests of the child. While "the best interests of a child [generally] lie in having a healthy and meaningful relationship with the noncustodial parent ..., Family Court has the discretion to impose supervised visitation if it determines that unsupervised visitation would be detrimental to the child's safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" ( Matter of Michael NN. v. Robert OO., 210 A.D.3d 1326, 1326–1327, 179 N.Y.S.3d 411 [3d Dept. 2022] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Jorge JJ. v. Erica II., 191 A.D.3d 1188, 1191, 142 N.Y.S.3d 240 [3d Dept. 2021] ). "Ultimately, Family Court has broad discretion in determining whether supervised visitation is warranted, and its decision will only be disturbed by this Court when it lacks a sound and substantial basis in the record" ( Matter of Michael U. v. Barbara U., 189 A.D.3d 1909, 1911, 138 N.Y.S.3d 279 [3d Dept. 2020] [internal quotation marks and citation omitted]; see Matter of Derek KK. v. Jennifer KK., 196 A.D.3d 765, 767, 151 N.Y.S.3d 491 [3d Dept. 2021] ).

Here, the record provides ample support for Family Court's determination that supervised and/or public place visitation was appropriate. Although the father testified that he intended to have the child stay overnight at his primary residence, the aforementioned issues with the cleanliness of that environment, which remained unresolved at the time of the hearing, supported the court's determination that overnight visits were inappropriate at that juncture.⁴ Further, the father's failure to appreciate the child's...