| Matter of Hurlburt v Behr |
| 2010 NY Slip Op 01557 [70 AD3d 1266] |
| February 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eric Hurlburt, Respondent, v Crystal Behr,Appellant. |
—[*1] Victoria J. Monty, Cortland, for respondent. Susan B. Marris, Law Guardian, Manlius.
Rose, J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered May 14, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
After a hearing in this contested custody proceeding, Family Court continued joint custodyof the parties' child (born in 2005), but changed primary physical custody from respondent(hereinafter the mother) to petitioner (hereinafter the father). On appeal, the mother initiallyasserts that she had been unaware that the lawyers assigned to represent the child and the fatherwere, respectively, the Chenango County Public Defender and an Assistant Public Defender, andshe contends that this constituted simultaneous representation in violation of former Code ofProfessional Responsibility Canon 5. The relevant provisions of the former Code were designedto prevent lawyers in the same law firm from engaging in simultaneous representation of two ormore clients in the same matter without having first disclosed the potential conflict to thoseclients and obtained their consent (see former 22 NYCRR 1200.24 [b], [c], [d]).Inasmuch as the mother's assigned lawyer was not from the Public Defender's office, however,her consent was not required. Nor is there anything in the record suggesting that the LawGuardian was beholden or biased in representing the child due to his assistant's representation ofthe father (see Matter of Lovitch v Lovitch, 64 AD3d 710, 711-[*2]712 [2009]; Matter of Wolfgang N., 179 AD2d 1090[1992], lv denied 79 NY2d 756 [1992]; compare Davis v Davis, 269 AD2d 82,85-86 [2000]). Given that the Public Defender and his assistants have separate office addresses,and that there is no showing that client information flowed freely among them, we will notpresume that the child's representation was in any way inhibited or restrained (see People vWilkins, 28 NY2d 53, 56-57 [1971]; compare Matter of Ruth TT., 283 AD2d 869,870-871 [2001]).
The mother next contends that she received ineffective assistance of counsel. To establishthis claim, the mother must demonstrate that she was deprived of meaningful representation as aresult of her lawyer's deficiencies (see Matter of Hudson v Hudson, 279 AD2d 659,661-662 [2001]; Matter of Thompson v Jones, 253 AD2d 989, 990 [1998]).[FN*]Her allegations that her attorney should have objected to the amendment of the father's petitionto seek custody, that he was unprepared to proceed with a hearing on custody, and that he shouldhave called her and other witnesses on her behalf fail to meet that standard. In response to theamendment of the father's petition, the mother's attorney acknowledged that he was notsurprised, and the record does not suggest that more time was needed to prepare for the hearing.Nor was it necessary for him to call the mother as a witness because the father had called her totestify and her attorney fully explored the relevant issues during cross-examination. In addition,on appeal, the mother concedes that her attorney's cross-examination of the father was well doneand merely speculates that other evidence would have supplemented the case against a change incustody. As for the fact that the mother's attorney did not call the child's maternal grandmotheror the caseworker who conducted home studies of the parties' residences, the mother fails toshow that those omissions were the result of any neglect on counsel's part. While the child'sgrandmother likely could have provided relevant evidence, she had left the jurisdiction and wasnot available to testify. In any event, it is mere speculation that the grandmother's testimonywould have been more helpful than harmful to the mother (see Matter of Troy SS. v JudyUU., 69 AD3d 1128, 1133-1134 [2010]; Matter of Brenden O., 20 AD3d 722, 723[2005]). Moreover, since the home study report found the mother's home to be in poor conditionwith half of it uninhabitable, a leaky roof, an unguarded wood stove and holes in its foundation,we cannot say that her attorney's decision not to call the caseworker to testify about the reportwas anything other than a legitimate trial strategy (see Matter of Hissam v Mackin, 41AD3d 955, 957 [2007], lv denied 9 NY3d 809 [2007]; Matter of Michael DD.,33 AD3d 1185, 1186-1187 [2006]; Matter of Anson v Anson, 20 AD3d 603, 605 [2005],lv denied 5 NY3d 711 [2005]).
Finally, we are unpersuaded by the mother's argument that the record does not supportFamily Court's decision to change physical custody of the child. It is well settled that to modifyan existing custody arrangement, the parent must demonstrate that a substantial change incircumstances occurred that necessitates a modification to further the best interests of the child(see Matter of Cool v Malone, 66 AD3d 1171, 1172-1173 [2009]; Matter of Passerov Giordano, 53 AD3d 802, 803 [2008]). In addition, Family Court's determination of theseissues will be [*3]upheld unless it lacks a sound and substantialbasis in the record (see Matter of Siler v Wright, 64 AD3d 926, 928 [2009]). WhileFamily Court gave a variety of reasons for finding a change in circumstances here, we need onlyconsider the mother's neglect of this four-year-old child's dental health, which resulted in severetooth decay requiring root canal procedures and caps, and the mother's absence from the child'shome for roughly seven months prior to the hearing. These occurrences amounted to asubstantial change in circumstances warranting Family Court to consider the child's bestinterests.
The factors to be considered in assessing best interests include, among other things, thelength of time the present custody arrangement has been in place, the quality of the parents'respective home environments, and each parent's past performance, relative competence andcapacity to provide for and direct the child's development (see Matter of Siler v Wright,64 AD3d at 928). Here, the evidence established that the mother had neglected the child's dentalhealth, was cavalier about the child's risk of being burned by an unguarded wood stove, and hadallowed the child to be dirty and suffer from a burn, lice infestation and urinary tract infections.In addition, the record shows that the mother had regularly entrusted the care of the child to herboyfriend and the grandmother, with the grandmother unilaterally denying the father visitationon some occasions. The evidence further showed that the mother was overwhelmed and couldnot properly care for all three of her children at the same time, and that she had no viable plan tosupport them. Moreover, there was evidence that the mother and her boyfriend spend significantamounts of money on cigarettes even though she is only occasionally employed and theirhousehold is on the brink of financial disaster. By contrast, the evidence showed that the fatherhas a stable and suitable home and an adequate income, and he engages in positive educationaland social activities with the child. Given Family Court's review of each parent's strengths andweaknesses, the record provides a sound and substantial basis for its determination to changecustody (see Matter of Richardson v Alling, 69 AD3d 1062, 1064 [2010]; Matter ofCool v Malone, 66 AD3d at 1172-1173; Matter of Billets v Bush, 63 AD3d 1203,1204 [2009]; Matter of Memole v Memole, 63 AD3d 1324, 1325-1326 [2009]).
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: To the extent that previousdecisions of this Court have required a showing of actual prejudice as part of the ineffectiveassistance of counsel analysis under the NY Constitution, we decline to follow them (see e.g.People v Roberts, 63 AD3d 1294, 1295 [2009]; Matter of Chaquill R., 55 AD3d 975,977 [2008], lv denied 11 NY3d 715 [2009]; Matter of Matthew C., 227 AD2d679 [1996]; People v Frascatore, 200 AD2d 860, 861 [1994]).