| Matter of Nicolette I. (Leslie I.) |
| 2013 NY Slip Op 06895 [110 AD3d 1250] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of Nicolette I., a Child Alleged to beNeglected. Schuyler County Department of Social Services, Respondent; Leslie I.,Appellant. (Proceeding No. 1.) In the Matter of Julie YY., Respondent, v CherylZZ., Respondent, and Leslie I. et al., Appellants. (Proceeding No. 2.) In the Matter ofNicolette I., a Child Alleged to be Neglected. Schuyler County Department of SocialServices, Respondent; Michelle I., Appellant. (Proceeding No.3.) |
—[*1] Kristine Shaw, Ithaca, for Michelle I., appellant. Geoffrey Rossi, Schuyler County Department of Social Services, Watkins Glen(Samuel D. Castellino, Big Flats, of counsel), for Schuyler County Department of SocialServices, respondent. Daniel J. Fitzsimmons, Watkins Glen, attorney for the child.
Garry, J. Appeals (1) from two orders of the Family Court of Schuyler County(Argetsinger, J.), entered September 30, 2011 and December 23, 2011, which grantedpetitioner's applications, in proceeding Nos. 1 and 3 pursuant to Family Ct Act article 10,to adjudicate respondents' child to be neglected, and (2) from an order of said court,entered December 29, 2011, which, among other things, granted petitioner's application,in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the subject child.
Respondent Leslie I. (hereinafter the father) and respondent Michelle I. (hereinafterthe mother) are the parents of a child (born in 1998). The child lived with them in theVillage of Burdett, Schuyler County until 2007, when she was placed with the paternalgrandmother, respondent Cheryl ZZ., after the father consented to a finding of neglect inprior proceedings involving his mental health, abuse of drugs and alcohol, and failure tosupervise the child (seegenerally Matter of Nicolette I., 56 AD3d 1080 [2008]). In October 2007, themother and father stipulated to a custody order pursuant to Family Ct Act article 6 thatrequired them, among other things, to re-engage with substance abuse and mental healthservices as a condition of regaining custody. In July 2010, the child returned to live withthe father and mother pursuant to a modified order that granted sole legal and physicalcustody to the father and required "strict compliance" on his part with conditions relatedto the prior proceedings. The order noted that the mother's ongoing medical and mentalhealth needs obliged the father to provide her with consistent care, assure medicationcompliance and prevent the abuse of drugs and alcohol.
In October 2010, the mother left the family home and alleged, among other things,that the father was frequently drinking alcohol to excess. In November 2010, sheconsented to the child's placement in foster care, and petitioner Schuyler CountyDepartment of Social Services (hereinafter DSS) commenced the first of theseproceedings alleging that the father had neglected the child. DSS later commenced thethird proceeding alleging that the mother had neglected the child. In the interim, thechild's paternal aunt, petitioner Julie YY. (hereinafter the aunt), commenced the secondproceeding seeking custody of the child. The father sought to sever the hearings in thetwo neglect proceedings, and Family Court denied this motion. Following a fact-findinghearing, the court granted the petitions and found the child to be neglected. The motherappeals from this order. The court then conducted a dispositional hearing and entered anorder in the neglect proceedings and a final order in the custody proceeding that, amongother things, granted joint legal custody pursuant to Family Ct Act article 6 to the father,mother and aunt and [*2]physical placement to the aunt.The father and mother each appeal from these orders.
Initially, Family Court's refusal to sever the hearings did not deprive the father of dueprocess.[FN1] He claims that he was prejudiced by evidence admitted against the mother, in particularher prior statements regarding his alleged alcohol abuse.[FN2] However, the court ruled at the outset that it would consider the mother's out-of-courtstatements only against her and not against the father, and thereafter scrupulously abidedby this distinction, repeatedly reminded the parties of its ruling, and did not rely onevidence pertaining to the mother in rendering its decision as to the father. As the twoneglect proceedings clearly presented common questions of law and fact and the fatherfailed to demonstrate any resulting prejudice, we find no abuse of the court's discretion inhearing them together (see Matter of Rita XX., 249 AD2d 850, 852 [1998];Matter of Amy M., 234 AD2d 854, 855 [1996]).
The father next contends that Family Court's finding of neglect should be reversed asDSS failed to demonstrate by a preponderance of the evidence that he misused alcohol,was noncompliant with ordered treatment, or that these issues caused actual or imminentharm to the child.[FN3]A child is neglected when his or her "physical, mental or emotional condition has beenimpaired or is in imminent danger of becoming impaired as a result of the failure of his[or her] parent . . . to exercise a minimum degree of care . . . inproviding the child with proper supervision or guardianship . . . bymisusing a drug or drugs [or] . . . alcoholic beverages to the extent that [theparent] loses self-control of his [or her] actions" (Family Ct Act § 1012 [f] [i] [B]).Here, Family Court took judicial notice of the prior neglect proceedings against thefather that had involved, among other things, allegations of substance abuse and had ledto the July 2010 order requiring "strict compliance." A DSS caseworker testified that, inNovember 2010, the child stated that she had found the father asleep on the kitchen floor,and was frightened as she could not waken him. The following day, the caseworker madean unannounced visit to the home. The father initially refused to answer the door, andwhen he did so at the child's urging, the caseworker smelled alcohol, the father admittedto drinking several beers, and his behavior was erratic and belligerent. The fatheracknowledged using alcohol on the day of this visit and on at least one other occasionwhile the child was in his custody; his testimony regarding how often this had occurredwas notably contradictory and inconsistent. He further acknowledged use of marihuanaduring the pertinent time period, but claimed that this occurred only once, and withouthis knowledge as someone had mixed it with his tobacco. Both a former friend and themother testified that the father had used alcohol and/or drugs in their presence during thesubject period.[FN4] The father contends that the testimony of these two witnesses should not have beencredited; however, the issues he raises were fully explored on cross-examination, and thisCourt gives deference to Family Court's resolution of credibility issues (see Matter of Dakota CC. [ArthurCC.], 78 AD3d 1430, 1430-1431 [2010]; Matter of Megan G., 291AD2d 636, 637[*3][2002]).
A psychologist who conducted a court-ordered evaluation testified that the fathersuffered from bipolar disorder with psychotic features, as well as narcissistic elementswith paranoia and described him as delusional and alcohol-dependent; he recommendedpsychotherapy, medication and abstention from alcohol and marihuana. A mental healthcounselor testified that, during the pertinent period, the father had attended all scheduledsessions, but stated that he was doing so solely because it was required by Family Court.The father reportedly spent most of his counseling time complaining about therestrictions on his use of alcohol, at times acknowledging his continued use and at othertimes denying it. This counselor opined that the father had made little or no progresstoward his stated goals and had gained no insight into the impact of his alcohol use onhimself or his family. During one session he smelled of alcohol and appeared to beintoxicated, but denied having consumed any. The father refused the recommendation fora psychiatric evaluation and told the counselor that he was not interested in takingmedications.[FN5]
The credible testimony established that—despite the child's previous removalfrom the father's care for reasons that included substance abuse, as well as the conditionsto which he was subject after she was returned to his custody—he repeatedlybecame sufficiently intoxicated to "impair[ ] his ability to make appropriate parentaljudgments . . . [and] to provide proper care for [her]" (Matter of Chassidy CC. [AndrewCC.], 84 AD3d 1448, 1449-1450 [2011]). In view of all of the evidence, wefind a sound and substantial basis in the record to support Family Court's determination(see Family Ct Act § 1012 [f] [i] [B]; Matter of Dakota CC. [ArthurCC.], 78 AD3d at 1430-1431).
Next, the mother and father challenge the child's placement with the aunt pursuant toFamily Ct Act article 6. Where a relative has petitioned pursuant to Family Ct Act article6 for custody of a child subject to proceedings under Family Ct Act article 10, FamilyCourt may grant custody to the relative without the parents' consent upon finding, amongother things, that the placement is in the child's best interests (see Family Ct Act§ 1055-b; Matter ofArlene Y. v Warren County Dept. of Social Servs., 76 AD3d 720, 720-721[2010], lv denied 15 NY3d 713 [2010]). Initially, we note that the statutorystandard for such a placement is addressed to the child's best interests rather than theparents' needs (see Family Ct Act § 1055-b [a] [ii]); we therefore reject thecontention that this placement constituted a de facto termination of parental rights bydepriving the mother and father of DSS services necessary to assist them in maintainingtheir relationship with the child. Further, as the child was placed pursuant to Family CtAct § 1055-b, the parties' arguments regarding obligations related to otherprovisions are inapposite.
Next, we disagree with the contention that placement with the aunt was not in thechild's best interests. Family Court accepted the aunt's testimony establishing that she andthe child had developed close familial bonds and that, while residing with the aunt, thechild's financial circumstances would be improved and she would be able to continue herpreviously established bonds with extended family and friends and to continue in herprior school and counseling relationships. Notably, the aunt lived in the samePennsylvania home where the child had previously resided for several years with hergrandmother, who had moved to a nearby residence. [*4]The child's counselor and her foster mother both testifiedthat the child's mental state and mood had improved during her stay in foster care,especially after living with the aunt became a possibility. Considering the aunt's ability toprovide the child with a safe and stable home, the child's previous lengthy residenceoutside the parents' custody, the mother's inability to care for her, and the father'slong-standing alcohol dependency and inability to engage successfully in mental healthtreatment, we find a sound and substantial basis in the record for the determination thatplacement with the aunt is in the child's best interests (see Matter of Louis N. [DawnO.], 98 AD3d 918, 919 [2012]; Matter of James GG. v Bamby II., 85 AD3d 1227,1228-1229 [2011]).
However, we agree with the mother and father that Family Court erred relative tovisitation. The court is required to determine this issue in accord with the child's bestinterests and, unless visits would be harmful to the child, must " 'structure a schedulewhich results in frequent and regular access by the noncustodial parent' " (Matter of Taylor v Jackson, 95AD3d 1604, 1605 [2012], quoting Matter of William BB. v Susan DD., 31 AD3d 907, 908[2006]). Here, Family Court directed that the father and mother were to have "reasonableand liberal visitation, under circumstances deemed appropriate by the [aunt]," furthernoting that "the aunt is a strong individual with whom the discretion to determine whatlimits [should be placed on] visitation should be vested." While we recognize thatprovisions for "reasonable and liberal" visitation sometimes allow appropriate flexibilitywhen a set schedule is impractical (see e.g. Matter of Bedard v Baker, 40 AD3d 1164, 1165[2007]; Matter of Storch v Storch, 282 AD2d 845, 846 [2001], lv denied96 NY2d 718 [2001]), these circumstances ordinarily involve the parties' cooperationand agreement, and such orders often state explicitly that visitation will take place "as theparties mutually agree." Here, however, the court inappropriately delegated its obligationby giving the aunt the sole discretion to decide both the frequency and circumstancesunder which any visitation might occur, including whether the visits would besupervised. As the parents contend, the record reveals that they have a strainedrelationship and lack of communication with the aunt. The aunt testified that sheintended to impose multiple restrictions on the parents' access to the child and to requirethe parents to provide all transportation. It is Family Court's nondelegable responsibilityto determine whether such conditions are in the child's best interests. Failing to do so wasin error, and the matter must be remitted to the court for that purpose (see Matter ofTaylor v Jackson, 95 AD3d at 1604-1605; Matter of Holland v Holland, 92 AD3d 1096, 1096-1097[2012]; Matter of Taylor vFry, 63 AD3d 1217, 1219 [2009]; Matter of William BB. v Susan DD.,31 AD3d at 908).[FN6]
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the order enteredSeptember 30, 2011 is affirmed, without costs. Ordered that the orders entered December23, 2011 and December 29, 2011 are [*5]modified, onthe law, without costs, by reversing so much thereof as provided for visitation; matterremitted to the Family Court of Schuyler County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote 1: The two neglectproceedings were not consolidated, but were heard together (see Matter of Rostkowski vBaginski, 96 AD3d 1066, 1067 [2012]).
Footnote 2: The mother recantedthese statements before the hearing.
Footnote 3: The mother's briefraises no issues related to Family Court's determination that she neglected the child.
Footnote 4: Family Court's rulingrestricting use of the mother's out-of-court statements did not apply to this in-courttestimony.
Footnote 5: The father confirmedthat he was unwilling to engage in mental health treatment, stating that he did not need itand that it was "oppression and tyranny."
Footnote 6: It appears fromrepresentations by the attorney for the child that further visitation proceedings werepending at the time of oral argument. In the apparent absence of any superceding orders,however, we have no basis on which to conclude that the matter is moot (see Matter of Whiting v Ward,97 AD3d 861, 862 [2012]).