| Matter of Michael CC. v Amber CC. |
| 2008 NY Slip Op 09506 [57 AD3d 1037] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Michael CC., Respondent, v Amber CC.,Appellant. (And Another Related Proceeding.) |
—[*1] Linda M. Campbell, Syracuse, for respondent. Keith R. Wolfe, Law Guardian, Chittenango.
Spain, J. Appeal from an order of the Family Court in Madison County (McDermott, J.), enteredNovember 27, 2007, which granted petitioner's application, in two proceedings pursuant to Family CtAct article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a sonborn in 2001. The parties agreed in July 2005 that the mother would have custody of the son and thefather would have regular parenting time, and an order to that affect was made in Jefferson County.During a visit with the father on December 24, 2006, the father and his live-in girlfriend discoveredsubstantial bruises on the then five-year-old child's lower torso, from his waist to his feet. The fathertook him to the hospital the next day where he was examined by a physician, and a child protectiveservice hotline report was made. On December 27, 2006, on the father's petition to modify the priorcustody order, Family Court, Jefferson County (Schwerzmann, J.), granted him temporary custody andtransferred the case to Madison County, where the father resides. The mother then cross-petitioned forsole custody requesting that the father have no contact with the child. In May 2007, Family Court(McDermott, J.) continued temporary custody with the father with weekend parenting time to themother, but later issued an order requiring that the mother's visiting time be supervised by the father orhis girlfriend based upon allegations that the child was being left alone with the perpetrator of theseinjuries.[*2]
After a fact-finding hearing and a Lincoln hearing inNovember 2007, Family Court determined in a detailed and well-reasoned written decision that themother's boyfriend was responsible for the child's bruises and that the mother knew but did not tellanyone or seek medical care; the court found this constituted a change in circumstances and that itwould be in the child's best interests to award sole custody to the father. The mother was permittedunsupervised visitation on alternating weekends, holidays and summers provided she not permit thechild to be in the boyfriend's presence unless another adult is present, until the mother and boyfriendcomplete certain parenting and/or anger management courses. The mother now appeals.
In these custody modification proceedings in which allegations of abuse are raised, we applyFamily Court article 10 evidentiary rules, including those requiring corroboration of a child's priorout-of-court statements (see Matter of LorenB. v Heather A., 13 AD3d 998, 1000 [2004], lv denied 4 NY3d 710 [2005]; see also Matter of Richard SS., 29 AD3d1118, 1121 [2006]; Family Ct Act § 1046 [a] [vi]). Here, Family Court's determinationsthat the boyfriend's abuse of the child caused the bruising and that the mother was present and aware ofit, but took no action, were supported by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]; see also Matter of Tammie Z., 66 NY2d 1, 3 [1985]).[FN1]The father and his girlfriend, whose testimony Family Court expressly credited, testified that the fatherpicked the child up at the mother's apartment on the evening of December 22, 2006, the father and sonvisited the mother's nearby parents, and the child fell asleep in the car on the way home, exhibiting nosigns of injury. The child participated in normal play and holiday activities the next day in his father'shome, in which his girlfriend's three daughters (ages 14, 12 and 11) and six-year-old cousin lived. Thechild first complained of pain in his legs on the afternoon of December 24, 2006 and, when hiscomplaints persisted, a bath was suggested and the father and his girlfriend discovered the extensivebruising. The child repeatedly asserted that he did not know what caused the bruises.
The next morning, Christmas day, the father took the child to the hospital where Bonnie Grossman,the director of the emergency department, examined him. Grossman ruled out blood disorders andopined that the extensive bruises to his lower torso were most likely caused by a beating or afall—i.e., by the child being struck by a blunt object in places and being tightly squeezed orcompressed in other areas—and not by a hand. She believed that based upon their color, theyhad been inflicted within several days to a week and likely all at the same time, although it was possiblethat some were inflicted days apart. Grossman observed that the child was close to his father, who wassupportive, and was not fearful of him. The father telephoned the mother, who indicated that she had noknowledge of the cause of the bruises.
On the issue of who inflicted the injuries, the child at first persistently indicated that he did not wantto talk about it, and he denied knowing how they occurred other than that he had been spanked by anunidentified person. When interviewed by an investigator from Child Protective Services (hereinafterCPS) the day after his hospital visit, the child again denied knowing who inflicted the injuries, but herocked back and forth and covered his ears when asked about his parents. In March 2007, afterseveral months with the father and no contact with the [*3]mother,[FN2]the child first disclosed to his father's girlfriend and the father's sister that the mother's boyfriend hadspanked him in the mother's presence after she said the child had lied. The child promptly reiterated thisto the father (and repeated it about 20 times over the ensuing months) indicating that he did not want toget his mother in trouble, and that the boyfriend had spanked him several other times. In August 2007,the child repeated to a CPS investigator that the boyfriend had spanked him in front of the mother forlying.
The child's out-of-court statements to the father, his girlfriend and the CPSinvestigator—attributing the injuries to the boyfriend and reflecting that the mother was presentand aware of them—were corroborated by the injuries themselves, the timing of the transfer ofthe child to the father late on December 22, 2006, the child's behavior around the father and by theconsistency of his statements (see Matter of Richard SS., 29 AD3d at 1121; see also Matter of Richard SS., 55 AD3d1001, 1002 [2008]). They were also corroborated by the medical testimony that the appearanceof the bruises on the morning of December 25 indicated that the injuries had likely been inflicted withinseveral days, but more than 24 hours prior. Further corroboration included behavioral problemsattendant to visitation with the mother. Accordingly, there was ample corroboration of the child'saccount, exceeding the " 'relatively low degree of corroborative evidence' " required (Matter ofRichard SS., 29 AD3d at 1121, quoting Matter of Joshua QQ., 290 AD2d 842, 843[2002]).
The mother testified that the child had no bruises when she bathed him the night before he wentwith his father, the boyfriend and the mother testified that he never spanked the child and she testifiedthat she had only done so once. She and her mother testified that the child told her during a June 2007visit that the father had told the child to say that the boyfriend had hurt him (which the father denied).We accord great deference to Family Court's express credibility determinations, made after observingfirsthand the witnesses' demeanor and testimony, which will not be disturbed (see Matter of Passero v Giordano, 53AD3d 802, 803 [2008]; Matter ofLopez v Robinson, 25 AD3d 1034, 1035 [2006]; see also Matter of Richard SS., 55AD3d at 1002-1003). The determination that the child was abused at the hands of the mother'sboyfriend, and that the mother was aware of it but did not disclose it or take protective action, issupported by the preponderance of credible evidence (see Family Ct Act § 1046 [b] [i];Matter of Tammie Z., 66 NY2d at 1; Matter of Loren B. v Heather A., 13 AD3d at1000).
We also agree that the foregoing constituted a sufficient change in circumstances warrantingreconsideration of the child's continued custodial best interests (see Matter of Nephew v Nephew, 45 AD3d 1194, 1195 [2007]).Contrary to the mother's appellate claims, Family Court did not base its best interests finding in favor ofcustody with the father solely on its abuse finding but, rather, specifically addressed other relevantfactors (see Matter of Roe v Roe, 33AD3d 1152, 1153 [2006]). The court noted the greater stability provided in the father's home,where the child is "happy and well cared for," the father's efforts to work with the child on hisintellectual and educational development, and his prompt response to the child's injuries (undeterred byconcerns he might be implicated). Notably, also, the father promoted the child's [*4]relationship with his maternal grandparents, regularly taking him (when hepicked him up for his parenting time) to visit with them and allowing the maternal grandmother to attendsupervised visitations. Further, the father's girlfriend, by all accounts, helps to care for the child and hasa good relationship with him, as do her daughters, and neither she nor the father spoke ill of the motheror interfered with the mother's relationship with the child. The mother, who had moved to four differentapartments in the prior year, unexplainably knew nothing about the child's school or teacher. She alsofailed to offer a believable excuse for not calling or seeing the child for three months after temporarycustody was transferred to the father, during which she resided with the boyfriend. Her aggressive andmanipulative behavior during supervised visits was, in many respects, not in the child's best interests.Given that there is no communication between the parties, joint custody was rightfully ruled out (see Matter of Grant v Grant, 47 AD3d1027, 1028 [2008]; Matter ofWiedenkeller v Hall, 37 AD3d 1033, 1035-1036 [2007], lv denied 8 NY3d 816[2007]). We see no basis upon which to disturb Family Court's well-supported discretionarydetermination that the child's best interests are served by granting the father sole custody, with regularand consistent parenting time with the mother.
Mercure, J.P., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: It was reported to Family Court thatno abuse or neglect proceeding was instituted because the parties had been "cooperative."
Footnote 2: The mother testified that she did notsee the child from the time that Family Court granted the father temporary custody (December 27,2006) until April 2007 because she believed that contact was prohibited, although no one from CPStold her that, and the order did not prohibit contact.