| Matter of Perry v Surplus |
| 2013 NY Slip Op 08304 [112 AD3d 1077] |
| December 12, 2013 |
| Appellate Division, Third Department |
| In the Matter of Timothy R. Perry, Respondent, v Helen M.Surplus, Appellant. |
—[*1] Norbert A. Higgins, Binghamton, for respondent. Larisa Obolensky, Delhi, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered March 30, 2012, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a child born in August 2011; they lived together until shortly before the childwas born. Upon the birth of the child, the Broome County Department of Social Services(hereinafter DSS) received a State Central Registry report reflecting concerns aboutdomestic violence and the mother's ability to care for the child. The mother consented toa safety plan with DSS in which the child would be discharged to the father's custodyfrom the hospital. Thereafter, the father filed for sole custody of the child at thesuggestion of DSS and the mother cross-petitioned for custody. DSS deemed the CentralRegistry report to be "indicated" based upon its investigation reflecting inadequateguardianship, the mother's mental health history and her prior neglect adjudications.Family Court then ordered a Family Ct Act § 1034 investigation, and a report waspromptly filed with the court.
At the custody trial in late 2011 and early 2012, Diane Teed, the DSS childprotective [*2]caseworker who conducted the CentralRegistry and Family Ct Act § 1034 investigations,[FN1] testified based upon, among other sources, her interviews of the parties, the mother'srecent medical records, Broome County Family Court records, Tioga County FamilyCourt records, and information gathered by DSS caseworkers from a Pennsylvaniacaseworker. Teed testified that the mother has three older children who were not in hercustody, all of whom live with grandparents; the oldest child was adjudicated to havebeen neglected in Pennsylvania in 1994 and placed with paternal grandparents, thesecond child was adjudicated to be neglected in 1995 in Broome County Family Courtbased upon the mother's admission and placed with paternal grandparents, and the thirdwas placed voluntarily in the custody of the maternal grandmother in 2008 pursuant to asafety plan with DSS. The mother's child protective history reflects extensive mentalhealth treatment with hospitalizations and suicide attempts, borderline intelligence, and ahistory of mutual domestic violence with the father as well as substance abuse.[FN2] As a result, Teed urged that the mother's visitation with the child be supervised, but notby the father.
The father testified at trial that he also has five older children (ages 5 to 19) withwhom he had weekly visitation at the time of trial, and he had achieved a cordialrelationship with their mother, his ex-wife. His oldest, a daughter age 19, was a frequentvisitor to his home and helped care for the child. He had an adjudication of neglect inTioga County Family Court (2008-2009) and prior incidents of domestic violence withhis ex-wife, which resulted in orders of protection (in 2003 and 2005) that had expiredby the time of this trial. He had a three bedroom house where he resided with the child.He was employed as a skilled laborer until he was injured at work and let go, at whichtime he began collecting unemployment insurance, which was shortly after he assumedcustody of the then-newborn child. He recounted incidents in which the mother hadharmed herself or threatened to harm herself and their unborn child and engaged inbizarre behavior, sometimes for weeks at a time. He also asserted that, on one occasion,the mother tossed the child on the couch when she got mad at the father. He had noobjection to the mother having supervised visitation with the child.
The mother testified that she lived in a one bedroom apartment and deniedthreatening to harm herself or the child. She accused the father of repeated domesticviolence, neglect of the child while in his custody and poly-substance abuse. Sheadmitted some substance abuse herself, including relapses since the birth of the child.She expressed her love for the child and desire to have custody of him. She also had beenregularly exercising her visitation when allowed, and reported that the father hadpermitted her to be alone with the child on several occasions.
Family Court concluded that the father was the more fit parent and awarded sole[*3]custody of the child to the father subject tosupervision over him and the child by DSS for one year. The court ordered that themother have supervised visitation to be overseen by an adult other than the father. Themother now appeals.
Initially, we are unpersuaded by the sole appellate argument made by the attorney forthe child that the mother's appeal from the award of custody to the father has beenrendered moot by subsequent events, namely, the removal of the child from the father'scustody by order of Family Court and his incarceration. Given that the mother'scontentions on appeal, that the court should have awarded her custody, if successful, will"directly affect[ ]" her rights, her appeal from the award of custody to the father is notmoot, notwithstanding that the custody award as to the father is no longer in effect(see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; compare Matter of Anthony WW.[Karen WW.], 103 AD3d 941, 942 [2013], lv denied 21 NY3d 857[2013]).
On the merits, we find that Family Court did not improvidently award custody to thefather based upon the evidence then before the court which, at that time, supported theconclusion that it was in the child's best interests to be placed in the supervised custodyof the father (see Matter ofGordon v Richards, 103 AD3d 929, 930 [2013]; Matter of Edward V. v CrystalW., 45 AD3d 1213, 1215 [2007], lv denied 10 NY3d 703 [2008]). Here,the determination is supported by a sound and substantial basis in the record, and weaccord deference to the court's credibility and factual determinations, in view of itsability to observe the testimony, particularly that of the parents (see Matter of Darrow vDarrow, 106 AD3d 1388, 1390 [2013]). The court considered all of the relevantfactors raised by the evidence in this initial custody determination, including the "parents'ability to provide a stable home environment for the child, . . . the parents'past performance, relative fitness, ability to guide and provide for the child's overallwell-being, and the willingness of each parent to foster a relationship with the otherparent" (Matter of Rundall vRundall, 86 AD3d 700, 701 [2011]; see Matter of Casarotti v Casarotti, 107 AD3d 1336, 1339[2013], lv denied 22 NY3d 852 [2013]). Family Court's conclusions, based uponthe evidence then before it, that the father was the more fit parent and that his past flawswere outweighed by his more recent positive lifestyle and willingness to provide asuitable home for his child, are supported in the record.
The mother's objections on appeal to the admission of certain testimony at trial on theground that it constituted inadmissible hearsay are unpreserved for our review, as she didnot raise these objections at trial, at a time when Family Court, the parties, DSS or theattorney for the child could have responded to them (see CPLR 5501 [a] [3]; Matter of Telsa Z. [Denise Z.],84 AD3d 1599, 1600 [2011], lv denied 17 NY3d 708 [2011]). Moreover,any hearsay error was harmless, in view of the overwhelming additional evidencesupporting the court's custody determination, and the fact that the mother was notdeprived of "fundamental fairness" (Matter of Leon RR, 48 NY2d 117, 124[1979]; accord Matter of Florence X., 75 AD2d 942, 943 [1980]). We add thatgiven, among other considerations, recent developments with regard to the father, themother should have received long-overdue current substance abuse and mental healthevaluations, as well as a current assessment of her cognitive abilities and other services,with an eye toward conditioning her visitation on participation in such evaluations ortreatment (see Matter of Caccavale v Brown, 271 AD2d 717, 719 [2000]), asappropriate, assuming she is participating in ongoing visitation with the child.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Teed testified that noneglect proceeding was commenced because both parties were cooperative.
Footnote 2: We note that the mentalhealth history is dated, from 1995, and no updates or current evaluations were requestedor court ordered. Likewise, the parties were not ordered to undergo substance abuseevaluations despite evidence of such abuse by both. Teed testified that the parents wereasked to complete drug evaluations, apparently as part of the Family Ct Act § 1034investigation, but she did not have any results and it is not clear if they were completed.