| Matter of Eck v Eck |
| 2008 NY Slip Op 10078 [57 AD3d 1251] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Leslie K. Eck, Appellant, v Kenneth R. Eck Jr.,Respondent. |
—[*1] Erin J. Neale, Sidney, for respondent. Jehed Diamond, Law Guardian, Delhi.
Cardona, P.J. Appeals from two orders of the Family Court of Delaware County (Burns, J.),entered July 11, 2007, which, among other things, partially granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
The underlying facts of this matter are more fully set forth in two prior decisions of this Court(Matter of Eck v Eck, 57 AD3d 1243 [2008] [decided herewith]; Matter of Eck v Eck, 33 AD3d 1082[2006]). Pursuant to an October 2006 order, also currently the subject of an appeal before this Court(Matter of Eck v Eck, supra [decided herewith]), Family Court, among other things,reduced visitation that petitioner (hereinafter the mother) had with the parties' son and directed her, as aprerequisite to any future expansion of visitation, to undergo a mental health evaluation and follow therecommended course of treatment. Thereafter, in January 2007, the mother filed a modificationproceeding seeking increased visitation based primarily on her purported completion of therecommended counseling.
Following both Lincoln and fact-finding hearings, Family Court, among other things, foundthat the counseling the mother received did not, as expressed in its prior order, focus on the emotionalharm that she caused her son by her persistent filing of numerous Family Court [*2]petitions and unfounded child abuse reports. Accordingly, the courtconcluded that there was insufficient evidence to find that it would be in the child's best interests toexpand visitation.[FN1]The mother now appeals.[FN2]
The mother contends that Family Court erred in denying her request for increased visitation,claiming that the counseling she completed established a sufficient change in circumstances warrantingher requested relief. We disagree. The court's order made clear that the basis for requiring counselingprior to an increase in visitation was due to her lack of appreciation regarding the detrimental effect herconduct was having on the child. However, Barbara Sue Agoglia, a licensed clinical social worker withwhom the mother sought counseling, testified that only approximately 10% of the counseling sessionswith the mother were spent on that issue, and the counseling primarily focused on the mother'sdepression and overall concern for her son's safety. Significantly, when asked by the court, Agogliaacknowledged that during the course of treatment, the mother did not express an understanding of theemotional harm caused her son by filing unsubstantiated reports with child protective services agencies.In addition, the mother, when asked whether she foresaw any point in the near future when she wouldrefrain from filing additional Family Court petitions, replied in the affirmative, only when she felt"comfortable that [the child] is safe and that he's getting the appropriate needs addressed."Furthermore, testimony in the record demonstrates that the mother persists in her attempts tomanipulate third parties into supporting baseless claims against the father pertaining to the child'sbehavior and psychological needs.
In our view, the record supports the conclusion that, despite the counseling received, the mothercontinues to lack insight into the emotional harm she is inflicting upon her son by her persistentunfounded child abuse reports and Family Court petitions. Under these circumstances, and givingdeference to Family Court's factual and credibility determinations (see Matter of Passero v Giordano, 53 AD3d 802, 803 [2008]; Matter of Sanders v Slater, 53 AD3d716, 717 [2008]), we find that a sound and substantial basis in the record exists for Family Court'sdecision (see Matter of Passero v Giordano, 53 AD3d at 803; Matter of Engwer vEngwer, 307 AD2d 504, 505 [2003]).
Carpinello, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: Due to the mother's work scheduleprohibiting her from exercising her visitation with the child on Wednesday evening before 5:00 p.m.,Family Court did amend the prior order to effectuate the previous grant of visitation by changingpetitioner's Wednesday visitation to 6:00 p.m. until 8:00 p.m.
Footnote 2: Although the mother also appealsfrom the dismissal of an order to show cause filed in March 2007 seeking the same relief sought by theinstant petition, having raised no issues in her brief with respect thereto, that appeal is deemedabandoned (see Matter of Schermerhorn vBreen, 8 AD3d 709, 710 n [2004]).