| Matter of Angelina L.C. (Michael C.—PatriciaH.-C.) |
| 2013 NY Slip Op 06565 [110 AD3d 793] |
| October 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Angelina L.C. Nassau County Departmentof Social Services, Respondent; Michael C., Respondent; Patricia H.-C., Appellant.(Proceeding No. 1.) In the Matter of Antoine C. Nassau County Department of SocialServices, Respondent; Michael C., Respondent; Patricia H.-C., Appellant. (ProceedingNo. 2.) In the Matter of Michael D.C., Jr. Nassau County Department of Social Services,Respondent; Michael C., Respondent; Patricia H.-C., Appellant. (Proceeding No. 3.) Inthe Matter of James C. Nassau County Department of Social Services, Respondent;Michael C., Respondent; Patricia H.-C., Appellant. (Proceeding No. 4.) In the Matter ofEvelina M.C. Nassau County Department of Social Services, Respondent; Michael C.,Respondent; Patricia H.-C., Appellant. (Proceeding No. 5.) In the Matter of Michael C.,Respondent, v Evelyn D., Respondent, and Patricia H.-C., Appellant.(Proceeding Nos. 6-9.) In the Matter of Michael C., Respondent, v Patricia H.-C.,Appellant. (Proceeding No. 10.) In the Matter of Patricia H.-C., Appellant, v Michael C.,Respondent. (Proceeding Nos. 11-16.) |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (David A. Tauster of counsel), forpetitioner-respondent in proceeding Nos. 1, 2, 3, 4, and 5. Ralph R. Carrieri, Mineola, N.Y., for Michael C., respondent-respondent inproceeding Nos. 1, 2, 3, 4, and 5, petitioner-respondent in proceeding Nos. 6, 7, 8, and 9,and respondent in Proceeding Nos. 10, 11, 12, 13, 14, 15, and 16. Marjorie G. Adler, Garden City, N.Y., attorney for the children Angelina L. C. andEvelina M.C. Mitra K. Zervos, Great Neck, N.Y., attorney for the children Michael D. C., Jr.,Antoine C., and James C.
In related proceedings pursuant to Family Court Act articles 6 and 10, the motherappeals from an order of fact-finding (in connection with the proceedings pursuant toFamily Ct Act art 6) and disposition (in connection with the proceedings pursuant toFamily Ct Act arts 6 and 10) of the Family Court, Nassau County (Greenberg, J.), datedNovember 22, 2011, which, upon an order of fact-finding of the same court dated June 4,2010, made in connection with the proceedings pursuant to Family Court Act article 10,finding that both she and the father neglected the child Angelina L.C., and derivativelyneglected the children Antoine C., Michael D.C., Jr., James C., and Evelina M.C., andafter a fact-finding and dispositional hearing on the petitions and cross petitions in theproceedings pursuant to Family Court Act article 6, which was conducted jointly with adispositional hearing on the petitions in the proceeding pursuant to Family Court Actarticle 10, granted the father's petitions to modify an order of custody dated January 31,2006, referable to the children Angelina L.C., Antoine C., Michael D.C., Jr., and EvelinaM.C., so as to award him custody of those children, granted the father's separate petitionfor custody of the child James C., denied her cross petitions for custody of all of thechildren, and directed her to stay away from all of the children for a period of one year,except for supervised visitation. The appeal from the order of fact-finding anddisposition dated November 22, 2011, brings up for review the order of fact-findingdated June 4, 2010.
Ordered that the appeal from so much of the order of fact-finding and dispositiondated November 22, 2011, as directed that the mother stay away from the subjectchildren except for supervised visitation for a period of one year, and so much of thesame order of fact-finding and disposition as related to the child Evelina M.C. isdismissed, without costs or disbursements; and it [*2]isfurther,
Ordered that the order dated November 22, 2011, is affirmed insofar as reviewed,without costs or disbursements.
The appeal from so much of the order of fact-finding and disposition datedNovember 22, 2011, as directed that the mother stay away from the children except forsupervised visitation for a period of one year must be dismissed as academic, as thatportion of the order has already expired (see Matter of Amiya S. [Twana J.F.], 100 AD3d 763, 764[2012]; Matter of Sylvia J.,23 AD3d 560, 561 [2005]; Matter of Ciara M., 273 AD2d 312, 314 [2000]).Since the child Evelina M.C. is now over 18 years of age, she is no longer subject to theorder appealed from (see Matterof Hershko v Hershko, 103 AD3d 635 [2013]; Matter of Julian B. v Williams,97 AD3d 671 [2012]; Matter of Cahill v Zakian, 71 AD3d 765 [2010]; Matter of McGovern v Lynch,62 AD3d 712 [2009]). Accordingly, the appeal from so much of the order offact-finding and disposition dated November 22, 2011, as related to her must bedismissed as academic as well.
On November 2, 2007, a finding of neglect was entered by the Family Court againstthe mother, on her consent, based on the mother's refusal to treat or address her mentalhealth issues. On June 4, 2010, after a fact-finding hearing, the Family Court made asubsequent finding of neglect against the mother, and a finding of neglect against thefather, in connection with the child Angelina L.C., with derivative findings of neglect asto the other four children of the mother and father. The Family Court ordered forensicevaluations of, among others, the mother and father, by Joseph Scroppo, a psychologist.Thereafter, the father filed petitions seeking modification of a prior order of custodydated January 31, 2006, so as to award him custody of the children Angelina L.C.,Antoine C., Michael D.C., Jr., and Evelina M.C., and filed a separate petition for custodyof the parties' youngest child, James C. The mother filed cross petitions seeking an awardof custody of all of the children. By December 2010, the father had temporary custody ofall five children. After a fact-finding and dispositional hearing on the custody petitionsand cross petitions, conducted jointly with a dispositional hearing on the neglectpetitions, the Family Court, inter alia, granted the father's petitions seeking amodification of the prior custody order, and awarded him custody of the childrenAngelina L.C., Antoine C., Michael D.C., Jr., and Evelina M.C., granted the father'spetition seeking custody of James C., denied the mother's cross petitions for custody ofall of the children, and directed the mother to stay away from all of the children for aperiod of one year, except for supervised visitation.
In order to modify an existing court-sanctioned custody or visitation arrangement,"there must be a showing that there has been a change in circumstances such thatmodification is required to protect the best interests of the child" (Matter of McVey v Barnett,107 AD3d 808, 808 [2013] [internal quotation marks omitted]; see FamilyCt Act § 467 [b] [ii]; Matter of Wilson v McGlinchey, 2 NY3d 375, 380[2004]; Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of James M. v KevinM., 99 AD3d 911 [2012]). The best interests of the child are determined by areview of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2dat 171; Matter of Griffin vNikiea Moore-James, 104 AD3d 685 [2013]; Matter of Sidorowicz vSidorowicz, 101 AD3d 737 [2012]). " 'Since any custody determination dependsto a great extent upon the hearing court's assessment of the credibility of the witnessesand of the character, temperament, and sincerity of the parties, its findings are generallyaccorded great deference and will not be disturbed unless they lack a sound andsubstantial basis in the record' " (Matter of O'Loughlin v Sweetland, 98 AD3d 983, 984[2012], quoting Matter ofSkeete v Hamilton, 78 AD3d 1187, 1188 [2010]; Matter of Nell v Nell, 87AD3d 541, 542 [2011]).
Contrary to the mother's contention, the Family Court's determination to awardcustody of the parties' five children to the father has a sound and substantial basis in therecord. Hearing testimony and in camera interviews conducted with the four olderchildren established that the mother, who has been diagnosed with schizoaffectivedisorder of the bipolar type, experienced delusions and disorganized speech that directlyaffected her abilities to parent and, thus, constituted an adequate ground on which to finda change of circumstances (seeMatter of Sloand v Sloand, 30 AD3d 784 [2006]). Furthermore, the FamilyCourt properly determined that any therapeutic treatment was likely to be ineffective dueto the mother's lack of insight about her illness (see Matter of Naomi S. [Hadar S.], 87 AD3d 936 [2011]),as evidenced by credible testimony at the hearing and the prior finding of neglect madeon the mother's consent.
The Family Court's determination is further supported by the recommendation ofScroppo, the court-appointed forensic psychologist, and by the position taken by theattorneys for the children. Where, as here, the recommendations of court-appointedevaluators and the position of the attorney for the children are not contradicted by therecord, they are entitled to some weight (see Matter of Ciccone v Ciccone, 74 AD3d 1337, 1338[2010]; Rosenberg vRosenberg, 44 AD3d 1022, 1024-1025 [2007]). Likewise, the four olderchildren, ranging in age from 12 to 17, stated in their in camera interviews that theywould prefer to live with their father, and their wishes were entitled to great weight (see Matter of Sassower-Berlin vBerlin, 31 AD3d 771, 772 [2006]).
Accordingly, the Family Court's determination that the award to the father of custodyof the subject children would be in their best interests has a sound and substantial basis inthe record, and should not be disturbed (see Matter of Cooper v Robertson, 97 AD3d 743 [2012]).
By consenting to the finding of neglect on November 2, 2007, the mother waived hercontention that the Family Court erred in making that finding. To the extent that themother contends that the Family Court, in its order of fact-finding dated June 4, 2010,erred in making a subsequent finding that she neglected or derivatively neglected herchildren, this contention is without merit. Skelos, J.P., Balkin, Austin and Sgroi, JJ.,concur.