| Matter of Saggese v Steinmetz |
| 2011 NY Slip Op 02759 [83 AD3d 1144] |
| April 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jason M. Saggese, Appellant, v Krystel L.Steinmetz, Respondent. |
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Egan Jr., J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredMarch 17, 2010, which, in a proceeding pursuant to Family Ct Act article 6, among other things,directed petitioner to undergo substance abuse treatment.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of adaughter (born in 2004). The mother also has another child, but paternity has not beenestablished with respect to that child. In 2006, the parties consented to an order which, amongother things, granted them joint legal and physical custody of the child. In April 2009, based onallegations that there was a drug overdose in the residence where the mother resided, the fathercommenced this modification proceeding seeking sole custody of the child. In response, themother filed a family offense petition and criminal complaint against the father alleging, amongother things, that the father struck her on the mouth during an argument. Family Court thereafterissued a temporary order of protection. The father was subsequently arrested for assault, at whichtime he was found to be in possession of marihuana. The assault charge was later adjourned incontemplation of dismissal and the father paid a fine for the marihuana violation.
Thereafter, between April and July 2009, numerous court applications were filed by bothparties, including a violation petition filed by the father, alleging that the mother absconded [*2]with the children to Arizona and failed to abide by an agreed-uponvisitation schedule,[FN*] and applications made by the mother seeking to withdraw the family offense proceeding and tomodify the order of protection. In August 2009, Family Court issued a temporary order ofcustody providing, among other things, that the parties share joint legal custody of the children,that the children reside with the paternal grandfather and, based on the father's marihuanaconviction, that he submit to a chemical dependency evaluation. The resulting evaluation, basedin part on a positive drug screen, diagnosed the father with cannabis abuse and recommendedtreatment. After a fact-finding hearing, Family Court dismissed the father's violation petition andboth of the mother's petitions, and awarded the parties joint legal custody of the children. FamilyCourt further ordered, among other things, that the father successfully complete chemicaldependency treatment. The father now appeals.
Initially, we are unpersuaded that Family Court committed reversible error by denying thefather the right to present an opening statement. While a party to a civil proceeding has the rightto make an opening statement (see CPLR 4016 [a]; De Vito v Katsch, 157 AD2d413, 415 [1990]), we find that Family Court's error in this regard does not require reversal sincethe court was fully familiar with the facts of the case, the parties and their respective argumentsthrough the numerous court appearances during the year prior to trial (see Lohmiller vLohmiller, 140 AD2d 497, 497 [1988]).
We are likewise unpersuaded that Family Court erred in ordering the father to attendsubstance abuse treatment. So long as a party's right to access to his or her child is notconditioned on participation in, or completion of, counseling, Family Court may, as part of itsvisitation or custody order, direct a party to obtain substance abuse treatment (see Matter of Remillard v Luck, 2AD3d 1179, 1180 [2003]) or counseling (see Posporelis v Posporelis, 41 AD3d 986, 991 [2007]) if suchtreatment or counseling will serve the children's best interests (see Gadomski vGadomski, 256 AD2d 675, 677 [1998]; Matter of Mongiardo v Mongiardo, 232AD2d 741, 744 [1996]). In this regard, evidence of a party's continuous use of an illegal drug iscertainly relevant to a determination of whether substance abuse treatment for the parent is in thechildren's best interests (see generallyJordan v Jordan, 8 AD3d 444, 445 [2004]; Matter of Mongiardo v Mongiardo,232 AD2d at 744). Here, the father had already been convicted of the violation of unlawfulpossession of marihuana and, at the fact-finding hearing, he admitted to smoking marihuana "nomore than once or twice per week" and during the pendency of his custody proceeding. WhileFamily Court found the father to be a good parent, it did not find his testimony—that hedid not purchase the drug, keep it in his home or use it in the presence of the children—tobe credible. Family Court was also unpersuaded that the father's routine use ofmarihuana—which the record reflects could affect a person's judgment, memory andproblem-solving ability—posed no risk to the children. Finally, to the extent that the fatherargues that treatment will create a financial burden, the record reflects that costs are based onability to pay and the father was eligible to apply for Medicaid benefits, which would completelycover the costs of treatment. In deferring to Family Court's ability to assess the witnesses'credibility, we find a sound and substantial basis in the record for its determination (see Matter of Kelley v VanDee, 61AD3d 1281, 1283 [2009]; Matter ofMarchand v Nazzaro, 55 AD3d 968, 969 [2008]).[*3]
Mercure, J.P., Rose and McCarthy, JJ., concur. Orderedthat the order is affirmed, without costs.
Footnote *: At some point in time, themother returned to New York and the parties reconciled.