| Matter of Edward V. v Crystal W. |
| 2007 NY Slip Op 09465 [45 AD3d 1213] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Edward V., Respondent, v Crystal W., Appellant.(And Three Other Related Proceedings.) |
—[*1] John M. Scanlon, Binghamton, for respondent. Norbert Higgins, Law Guardian, Binghamton.
Crew III, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.),entered October 26, 2006, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of Brodey V.
Crystal W., a respondent in proceeding Nos. 1 and 2 (hereinafter respondent), and EdwardV., petitioner in proceeding No. 1 (hereinafter petitioner), are the biological parents of Brodey V.(born in 2004). Respondent also has another child, Austin X. (born in 1999), from a priorrelationship. Petitioner and respondent apparently resided together until November 2005, atwhich time respondent relocated with Brodey. Shortly thereafter, respondent commenced aproceeding pursuant to Family Ct Act article 6 seeking custody of Brodey, and petitionercross-petitioned for custody, contending that Brodey twice sustained unexplained bruises whilein respondent's care. Based upon such allegations, Austin's father commenced a proceedingseeking to modify a prior order granting custody of Austin to respondent. Petitioner inproceeding No. 2, Broome County Department of Social Services (hereinafter DSS), thereaftercommenced a neglect proceeding pursuant to Family Ct Act article 10 against respondent and herboyfriend, the latter of whom was residing with respondent and Brodey at the time Brodeysustained the bruises.[*2]
In May 2006, respondent and her boyfriend admitted inopen court that while Brodey was in their care, he sustained bruises to his buttocks that were notadequately explained. Family Court, in turn, granted respondent and her boyfriend anadjournment in contemplation of dismissal (hereinafter ACOD) for a 12-month period, upon thecondition that respondent complete an approved anger management program and parentingclasses and accept the services of a parent aide. Petitioner, respondent and Austin's fatherwithdrew their respective custody petitions, which Family Court dismissed without prejudice,and it was agreed that the underlying custody/visitation issues would be resolved in the contextof the neglect proceeding. Following the dispositional hearing in that proceeding, Family Courtrestored the custody petitions to the calendar, awarded custody of Austin to respondent, primarilydue to Austin's father's failure to appear and apparent subsequent arrest on a domestic violencecharge. With respect to Brodey, Family Court awarded custody of the child to petitioner, findingthat while DSS's concerns regarding respondent's parenting skills may have been satisfied, it wasnot so persuaded. Accordingly, Family Court determined that it was in Brodey's best interest toremain with petitioner, where he had been residing pursuant to a temporary order. In so doing,Family Court also extended DSS's supervision over "the child, the household and the parents" forone year from October 26, 2006 and directed that respondent complete all programs and acceptall services set forth in the June 2006 ACOD order. This appeal by respondent ensued.
We affirm. Respondent initially contends that Family Court erred in extending the ACODuntil October 26, 2007 without complying with the consent requirements set forth in Family CtAct § 1039 (b). While the parties debate whether Family Court extended the actual ACODor simply DSS's "period of supervision" and, further, Family Court's authority (or lack thereof)for doing either, these issues need not detain us. The "period of supervision" set forth in the orderfrom which this appeal is taken expired by its own terms on October 26, 2007, thereby renderingthese issues moot.
Turning to the merits, we cannot say, based upon our review of the record as a whole, thatFamily Court's decision to award custody of Brodey to petitioner lacks a sound and substantialbasis in the record. Petitioner is gainfully employed, has provided suitable care, housing andtransportation for Brodey and has expressed a willingness to facilitate respondent's visitationwith the child. While it is true that respondent had been the child's primary caregiver and that theunderlying neglect proceeding was disposed of via an ACOD, it is equally true, and visiblyapparent from the photographs contained in the record, that Brodey sustained substantial,unexplained linear bruises to his buttocks while in the care of respondent and her boyfriend.Under such circumstances, Family Court correctly concluded that serious questions remained asto respondent's ability to provide a safe environment for Brodey and, as such, it was in Brodey'sbest interest to award custody to petitioner (see Matter of Robinson v Cleveland, 42 AD3d 708, 709 [2007]).Respondent's remaining contentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Peters, Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.