| Matter of LaRussa v Williams |
| 2014 NY Slip Op 01226 [114 AD3d 1052] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Leena LaRussa, Respondent, v TshombeWilliams, Appellant. |
—[*1] Ted J. Stein, Woodstock, for respondent. Betty J. Potenza, Highland, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Ulster County (Feeney,J.H.O.), entered November 27, 2012, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theunmarried parents of a daughter (born in 2008). Pursuant to a June 2009 consent order,as amended in July 2010, the parties shared joint legal custody, with the mother havingprimary physical custody and the father having scheduled parenting time, including threeweeks in the summer. Following a November 2010 incident in which the fatherattempted suicide in the presence of the mother and the child, the father relocated toGeorgia, where he was hospitalized for a period of time and was ultimately diagnosedwith schizophrenia. In April 2012, when the father sought to exercise his summervisitation in Georgia, the mother commenced the instant proceeding seeking sole legalcustody of the child and to limit the father to supervised visitation. After a hearing,Family Court found a change in circumstances sufficient to warrant modification of theprior custody order, awarded the mother sole legal and physical custody, and directedthat the father's visitation with the child occur within New York and be supervised byCrystal DePew (the mother of the father's other child)[FN1]and that each party notify the other with respect to the child's illnesses and/or seriousmedical issues. The father now appeals.
Initially, we reject the father's argument that the Judicial Hearing Officer (hereinafterJHO) who presided over the proceeding lacked subject matter jurisdiction. While therecord before us does not include an order of reference designating the JHO (seeCPLR 4311, 4317 [a]; 22 NYCRR 122.6), or a written stipulation of the parties, theparties expressly consented on the record to having the JHO preside over the case and"there is nothing in the record indicating that the JHO was not lawfully assigned to theirproceeding[ ]" (Matter ofMcDonald v Reed, 68 AD3d 1181, 1181 [2009], lv dismissed 14 NY3d758 [2010]; see Yuen v KwanKam Cheng, 69 AD3d 536, 537 [2010]; compare Binh Nguyen v PrimeResidential Bronx R&R V LLC, 307 AD2d 201, 201-202 [2003]; Fernald vVinci, 302 AD2d 354, 355 [2003]).[FN2]
Turning to the merits of Family Court's order, the father does not dispute that therehas been a change in circumstances such that a modification of the existing custody orderis necessary to further the child's best interests (see Matter of Breitenstein v Stone, 112 AD3d 1157,1157-1158 [2013]; Matter ofCasarotti v Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d852 [2013]; Matter of MelodyM. v Robert M., 103 AD3d 932, 933 [2013], lv denied 21 NY3d 859[2013]). Indeed, the manifestation of the father's psychological issues, his move toGeorgia and his diagnosis of schizophrenia all establish a change in circumstances thatrendered the existing custody order unworkable. As a result, Family Court properlyconducted the requisite best interests analysis (see Eschbach v Eschbach, 56NY2d 167, 171 [1982]; Matterof Flood v Flood, 63 AD3d 1197, 1198 [2009]). In this regard, we agree withthe father that Family Court should not have applied a negative inference based upon thefather's failure to call his treating psychiatrist as a witness at the hearing, in the absenceof any evidence that such witness was within the father's control (see generally Matter of AdamK., 110 AD3d 168, 176-185 [2013]; Matter of Richard E., 12 AD3d 1019, 1021 [2004]).However, inasmuch as there was otherwise sufficient evidence adduced at the hearing tosupport the modification imposed by Family Court, we find the impact of the inference tobe harmless.
The mother testified in great detail about the November 2010 incident, including thefather's attempts to stab himself, to spray chemicals in his mouth and to hanghimself.[FN3]According to the mother, the child was present in the home, observed the father's actionsand was screaming and crying. Since this incident, the father has seen the child only threetimes, all in the presence of other adults. The mother additionally agreed to allow thefather and the paternal grandmother to take the child to Pennsylvania for a family event,upon the grandmother's assurance that she would be responsible for the child's care.Although the grandmother testified [*2]that she did notleave the child alone with the father, the mother was convinced—based upon thefather's assertions—that this was not true. The mother also testified that the fatherhad a long history of alcohol abuse which, in combination with his mental health issues,raised concerns for the child's safety if the child was left alone with him. Finally, themother testified that she does not believe that she and the father are capable ofcooperating for the purpose of continuing joint legal custody because she does not feelcomfortable speaking to the father about issues concerning the child due, in part, to himhaving threatened her as a result of her attempt to modify his visitation rights.
The father denied that he had attempted suicide, but testified that he moved to hismother's home in Georgia because he was ill and acknowledged that he was hospitalizedon multiple occasions and was ultimately diagnosed with schizophrenia. According to hismedical records, the father was prescribed medication and was enrolled in an outpatienttreatment program five days a week. While the father also denied that he had an alcoholproblem, he admitted that he started drinking at a young age and that he was sufferingfrom alcohol poisoning at the time he was admitted to the outpatient treatment program.Additionally, there is evidence in the record that he has consumed alcoholic beveragessince that time.
Despite evidence of some improvement in the father's condition and witnesstestimony that he provided appropriate care for the child both before and after theNovember 2010 incident, Family Court was justifiably concerned about the status of thefather's mental health, particularly in view of his failure to acknowledge or address hisalcohol problem and the absence of any evidence indicating that he has achieved asufficient level of stability to render unsupervised visits appropriate. Family Courtrecognized the importance of the child's relationship with her father, but also consideredthe child's young age, the substantial distance between the child's residence and that ofthe father, and the fact that the mother has been the child's primary caretaker since thechild's birth.
Considering the record as a whole, and according deference to Family Court'scredibility assessments (see Matter of Breitenstein v Stone, 112 AD3d at 1158),we find a sound and substantial basis in the record for that court's determination that thebest interests of the child are served by an award of sole legal custody to the mother(see Matter of Melody M. v Robert M., 103 AD3d at 933; Matter of Fish v Fish, 100AD3d 1049, 1050 [2012]) with supervised visitation to the father (see Matter of Burrell v Burrell,101 AD3d 1193, 1194 [2012]; Matter of Knight v Knight, 92 AD3d 1090, 1092-1093[2012]; Matter of Beard vBailor, 84 AD3d 1429, 1430 [2011]). Moreover, we discern no basis to disturbFamily Court's direction that the father's visitation occur within New York or that court'schoice of supervisor (see Matterof D'Angelo v Lopez, 94 AD3d 1261, 1262 [2012]).[FN4]Nonetheless, there is nothing in the record to indicate that it would not be in the child'sbest interests to grant the father's request that he have direct access to the child's medicaland educational records (seeMatter of Deyo v Bagnato, 107 AD3d 1317, 1320 [2013], lv denied 22NY3d 851 [2013]; Matter ofRuple v Harkenreader, 99 AD3d 1085, 1087 [2012]) and we modify the custodyorder, accordingly. To the extent not specifically [*3]addressed herein, the father's remaining contentions havebeen examined and are unavailing.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by directing that respondent shall have direct access to the child'smedical and educational records, at his own expense, and, as so modified, affirmed.
Footnote 1: DePew was alsofriendly with the mother and testified that she was willing to supervise the father'svisitation with the subject child.
Footnote 2: The record also containsan order to show cause signed by Family Court (McGinty, J.) which, among other things,assigned the matter to the JHO.
Footnote 3: DePew was present forthe latter part of this incident and confirmed the father's attempt to hang himself.
Footnote 4: Although the fatherrequested that the paternal grandmother be authorized to supervise his visits with thechild, the mother testified that she could not trust that the grandmother would not leavehim alone with the child because she had done so in the past.