| Matter of Omavi A. (Jaimyce A.) |
| 2009 NY Slip Op 09563 [68 AD3d 1463] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Omavi A. and Another, Children Alleged to beNeglected. Broome County Department of Social Services, Respondent; Jaimyce A., Appellant,et al., Respondent. (Proceeding No. 1.) In the Matter of Barsun GG.,Respondent, v Jaimyce A., Appellant. (Proceeding No. 2.) |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, for BroomeCounty Department of Social Services, respondent. Teresa C. Mulliken, Harpersfield, for Barsun GG., respondent. Dale Dorner, Law Guardian, Greenville.
Mercure, J.P. Appeals (1) from an order of the Family Court of Broome County (Charnetsky,J.), entered August 18, 2008, which, among other things, granted petitioner's application, inproceeding No. 1 pursuant to Family Ct Act article 10, to adjudicate Omavi A. to be neglected,and (2) from an order of said court, entered July 21, 2008, which, among other things, grantedpetitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody ofthat child.
Petitioner Barsun GG. (hereinafter the father) and respondent Jaimyce A. (hereinafter themother) are the parents of Omavi A. (born in 2002). In June 2007, petitioner Broome CountyDepartment of Social Services (hereinafter DSS) commenced proceeding No. 1 by filing aneglect petition against the mother and her paramour. DSS alleged, among other things, that thechild had been subjected to excessive corporal punishment by the paramour and that the motherhad not protected the child from such punishment. The father then commenced proceeding No. 2against the mother, seeking custody of the child, and obtained temporary custody during thependency of both matters. As is relevant here, Family Court found in proceeding No. 1 that themother had neglected the child. The court then conducted a combined dispositional and custodyhearing, following which it ordered that the mother successfully complete a parenting class. In aseparate order, Family Court awarded the father physical custody of the child. The motherappeals from both the dispositional order in proceeding No. 1 and the custody order inproceeding No. 2.[FN*]
Contrary to the mother's arguments on appeal, Family Court's finding of neglect inproceeding No. 1 was supported by a preponderance of the evidence (see Family Ct Act§ 1046 [b] [i]; Matter of Mary Kate VV., 59 AD3d 873, 875 [2009], lvdenied 12 NY3d 711 [2009]). In this case, the mother's paramour—who the motherknew had a violent criminal background—struck the child repeatedly with a belt, causingmarks on his face and body that were readily visible several days later. The mother was aware ofthe incident but minimized its impact and, indeed, spanked the child herself shortly after itoccurred and continued to allow her paramour to watch the child alone. While the motherdisputed the frequency with which she used corporal punishment and denied that the paramourhad ever disciplined the child before, "even a single incident of excessive corporal punishmentcan be sufficient to constitute child neglect" (Matter of Aaliyah Q., 55 AD3d 969, 970[2008]). According due deference to Family Court's resolution of credibility issues, sufficientevidence in the record supports its determination that the mother neglected the child (seeMatter of Chelsea BB., 34 AD3d 1085, 1087 [2006], lv denied 8 NY3d 806 [2007];Matter of Justin O., 28 AD3d 877, 878-879 [2006]).
Turning to proceeding No. 2, while there is some confusion as to what prior order embodiedthe parties' custodial arrangement, the neglect cited above, as well as a previous [*2]substantiated claim of neglect, constituted a substantial change incircumstances that permitted Family Court to revisit that arrangement (see Matter of JeremyJ.A. v Carley A., 48 AD3d 1035, 1036 [2008]; Matter of Hagans v Harden, 12 AD3d972, 973 [2004], lv denied 4 NY3d 705 [2005]). The question thus became whatcustodial arrangement would be in the child's best interests, which requires the consideration of anumber of factors, including the need to maintain stability in the child's life, the child's wishesand the quality of the home environment, as well as each parent's relative fitness, willingness tofoster a relationship with the other parent and ability to further the child's emotional andintellectual development (see Matter of Omahen v Omahen, 64 AD3d 975, 976 [2009];Matter of Miller v Murray, 61 AD3d 1295, 1296 [2009]).
Here, the record establishes that the father is capable of providing the child with greaterstability, has taken an active interest in his social and intellectual development and will promotehis relationships with other family members, including his mother and maternal grandmother.Moreover, although concerns exist as to the father's previous level of involvement with the childand the amount of time he can devote to the child's upbringing, the father and the child haveformed an appropriate bond and the child will benefit from the active involvement of the father'sextended family. In contrast, the mother abruptly moved to Ohio during the pendency of theseproceedings—an area where she has no family—and has twice been found to haveneglected the child. She also frankly admitted that she would not encourage the child to see thefather and would not assist in facilitating that visitation, if she had custody. Taking into accountFamily Court's opportunity to evaluate the credibility of the witnesses, we conclude that a soundand substantial basis in the record exists to support its custodial determination, and accordinglyaffirm (see Matter of Burola v Meek, 64 AD3d 962, 965-966 [2009]).
We have reviewed the mother's remaining contentions and find them to be without merit.
Spain, Rose, Kane and Garry, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote *: The mother's notice of appeal inproceeding No. 1 inaccurately lists the date of entry of a dispositional order dealing with herparamour rather than that dealing with her. Given the lack of any confusion, however, we willtreat her notice of appeal as valid in the interest of justice (see CPLR 5520 [c];Matter of Simeon F., 58 AD3d 1081, 1081 n [2009], lv denied 12 NY3d 709[2009]).