| Matter of Christopher T. v Jessica U. |
| 2011 NY Slip Op 08692 [90 AD3d 1092] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of Christopher T., Respondent, v Jessica U.,Appellant. |
—[*1] Daniel Gartenstein, Kingston, for respondent. Ann M. Weaver, Red Hook, attorney for the children.
Spain, J.P. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered September 15, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
The parties are the parents, never married, of two children, born in 2006 and 2007. InOctober 2007, they were awarded joint custody on consent, with respondent (hereinafter themother) having residential custody and petitioner (hereinafter the father) awarded parenting timeas the parties agree. In 2009, Family Court ordered a Family Ct Act § 1034 child protectiveinvestigation based upon allegations that the father engaged in acts of domestic violence againstthe mother; it was also alleged that the mother allowed her boyfriend around the childrenalthough he had been charged with rape in the third degree—and later pleaded guilty toendangering the welfare of a child—for having sexual relations in 2008 with a 15-year-oldgirl when he was 22 years old.[FN1]While the Columbia County Department of Social Services (hereinafter DSS) conducted itsinvestigation, the boyfriend vacated the mother's residence at the request of DSS; the mother andboyfriend were cooperative and also engaged in all [*2]recommended services, including attending parenting and angermanagement classes and submitting to a mental health evaluation. The boyfriend was alsoattending substance abuse counseling.
The mental health evaluation was completed by Jacqueline Bashkoff in August 2009 but,inexplicably, is not contained in the record before us. However, the Family Ct Act § 1034investigation report dated April 12, 2010—which is contained in therecord—reflects that Bashkoff "did not see any reason as to why [the boyfriend] could notreturn to [the mother's] home . . . Bashkoff found no evidence of anyfactors/variables that would put [the] children at risk . . . Bashkoff stated that [theboyfriend] is capable of supporting [the mother] with her parenting responsibilities."
Thereafter, the mother filed a family offense petition against the father after an incident at herworkplace in March 2010. In April 2010, DSS determined, based upon the Family Ct Act§ 1034 investigation, not to file a neglect petition against either parent. The father thenfiled the instant modification of custody petition, solely requesting that Family Court prohibit theboyfriend from having any contact with the children. After a brief combined fact-finding hearingon both petitions, at which only the parties and the boyfriend testified, Family Court dismissedthe family offense petition finding that the mother had not proved that such an offense had beencommitted. Thereafter, by order entered in September 2010, the court granted the father's petitionto modify the joint custody arrangement, and held that the "mother shall not allow [the boyfriend]to be present around the children." The mother now appeals.[FN2]
Although Family Court made no express threshold finding as to the existence of a change incircumstances since the 2007 consent order reflecting a need for reconsideration of the existingcustody arrangement in order to insure the continued best interests of the children (see Matter of Rue v Carpenter, 69AD3d 1238, 1239 [2010]), the record permits our doing so (see Matter of Whitcomb v Seward, 86AD3d 741, 742 [2011]). Upon our independent review of the record, we find that the changein the mother's living arrangement with the boyfriend and the court order for a child protectiveinvestigation of the parents and boyfriend constituted the requisite change in circumstances.
However, the evidence in this sparse record does not provide a sound and substantial basisfor Family Court's modification order effectively precluding all contact between the children andthe mother's boyfriend. While the boyfriend's conviction and his admitted underlying conductwere certainly relevant factors in determining the best interests of the children and the suitabilityof the mother allowing him to live with and have contact with the children (see Matter of Benjamin v Benjamin, 48AD3d 912, 913 [2008]; Matter ofRoe v Roe, 33 AD3d 1152, 1153 [2006]), the record is devoid of any testimony orevidence supporting a finding that he posed any potential harm to them (cf. Matter of Daniel v Pylinski, 61AD3d 1291, 1292 [2009]; Ulmer v Ulmer, 254 AD2d 541, 543 [1998]). Althoughthe children had lived with the mother and boyfriend for several months, there was no testimonyas to his relationship or interactions with or treatment of them. The boyfriend was, by allindications, fully cooperative with DSS during the investigation and, like the mother, attended allsuggested programs. While the father focuses on the fact that the boyfriend has not, apparently,completed sex offender [*3]treatment, there is no evidence that itwas ever recommended or ordered, either by DSS, a mental health professional or in the criminalproceeding.
Significantly, there was no dispute that the mental health evaluator, who was advised by DSSof the charges against the boyfriend and of his conviction, concluded in 2009 that he posed norisk to the children. It is indeed unfortunate that this mental health evaluation is not contained inthe record on appeal as it should have been. While the mother's counsel specifically asked FamilyCourt, at the conclusion of the hearing, to consider the Family Ct Act § 1034 investigationreport and mental health evaluation, the record does not reflect whether the court ever actuallypossessed or considered the evaluation in its modification decision.
While we defer to Family Court's credibility determinations (see Matter of Lewis v Tomeo, 81AD3d 1193, 1196 [2011]), the court did not make any finding that the boyfriend posed adanger to the children. In ordering the mother to keep the children away from the boyfriend, thecourt indicated on the record that she could petition for another modification—presumablyto remove this restriction—by submitting to the court "an evaluation by a competentmental health professional that would indicate that [the boyfriend] is not a danger to the subjectchildren." However, the court had—the year before—ordered the Family Ct Act§ 1034 investigation that produced such a mental health evaluation, and no reason wasgiven why that 2009 evaluation did not satisfy this requirement and why it was not relied upon.We can see no reason why the court here did not already possess or make efforts to obtain themental health evaluation before modifying the custody order in this restrictive manner.
The only evidence in the record—the boyfriend's admitted consensual sexual relationswith an underage girl and plea to endangering the welfare of a child—did not, by itself,support the conclusion that the best interests of the parties' then two-and three-year-old childrenwarranted restricting all contact between the children and the boyfriend, who was fullycooperative and engaged to and financially supporting the mother at the time of the 2010fact-finding hearing (see e.g. Matter ofAfton C. [James C.], 17 NY3d 1, 10-11 [2011]). Indeed, the father—aspetitioner—failed to meet his burden. In the absence of a sound and substantial basis in therecord for the court's modification order, it must be reversed and the petition dismissed.
Rose, Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is reversed, on the law,without costs, and petition dismissed.
Footnote 1: The boyfriend was not requiredto register as a sex offender.
Footnote 2: The mother raises no issues withrespect to the dismissal of the family offense petition.