| Matter of Joshua UU. v Martha VV. |
| 2014 NY Slip Op 04089 [118 AD3d 1051] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Joshua UU.,Respondent, v Martha VV., Appellant. (And Six Other RelatedProceedings.) |
Alexander Lesyk, Norwood, for appellant.
Albert F. Lawrence, Greenfield Center, for respondent.
Efstathia Kyriakopoulos, Massena, attorney for the child.
Lahtinen, J. Appeal from a modified order of the Family Court of St. LawrenceCounty (Morris, J.), entered May 17, 2012, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify aprior order of custody.
The parties, unmarried parents of a daughter born in 2007, have been involved inextensive litigation in Family Court regarding the child. In March 2010, they stipulatedto an order that modified a July 2009 order and provided for joint legal custody, withprimary physical custody to petitioner (hereinafter the father), and respondent(hereinafter the mother) having parenting time each weekend as well as parts of certainholidays. In February 2011, the mother unilaterally refused to return the child to thefather contending that the paternal grandfather had inappropriately touched the child. Aseries of proceedings ensued,[FN1]including, among others, both partiesseeking modification of the March 2010 order. After lengthy proceedings including[*2]a five day fact-finding hearing, Family Courtmodified the March 2010 order by, among other things, granting the father sole legalcustody and providing the mother with two hours of supervised parenting time two timesper week.[FN2]Themother appeals.
"[A]n existing custody order may be modified upon a showing that there has been achange in circumstances reflecting a real need for change so as to insure the continuedbest interests of the child[ ]" (Matter of Virginia C. v Donald C., 114 AD3d 1032, 1033[2014]). Considerations in determining best interests include, among others, maintainingstability for the child, the respective home environments, length of the current custodyarrangement, each parent's relative fitness and past parenting performance, andwillingness to foster a healthy relationship with the other parent (see Matter of Clouse v Clouse,110 AD3d 1181, 1183 [2013], lv denied 22 NY3d 858 [2014]). We accorddeference to Family Court's findings of credibility, and generally will not disturb thecourt's determination regarding the child's best interests if supported by a sound andsubstantial basis in the record (see Matter of Virginia C. v Donald C., 114 AD3dat 1033).
Here, there was proof that the mother coached the child to make false allegations andshe attempted to alienate the child from the father. The mother had been involved indomestic violence with her boyfriend, whom she thereafter continued living with andthen married. The incident allegedly involved threats with a rifle, and police found aloaded rifle in the home. The mother had tested positive for use of marihuana during thetime that the hearing was pending, and had been in the car when her boyfriend wasarrested with 10 pounds of marihuana. The father and his companion had beencooperative with employees of the local social services agency whereas the mother andher companion were uncooperative. There was evidence that the child was doing well inthe primary care of the father. Family Court found the father to be a credible witness, andfurther determined that the mother's testimony was often inconsistent and lackedcredibility; indeed, the mother acknowledged giving inaccurate information topolice.
In light of, among other things, the animosity and inability to cooperate exhibited bythe parties, there was ample evidence of a change in circumstances. Moreover, there is asound and substantial basis in the record that Family Court's custody determination wasin the best interests of the child and not, as asserted by the mother, the result of FamilyCourt punishing her. The mother's further contention that the attorney for the child failedto correctly inform Family Court of the child's desires is unavailing. The attorney for thechild indicated that the child did not want to take a position and, given the child's youngage (turning four years old during the proceedings), Family Court did not abuse itsdiscretion by not conducting a Lincoln hearing (see Matter of Carolyn S. vTompkins County Dept. of Social Servs., 80 AD3d 1087, 1091 [2011]; cf. Matter of Jessica B. v RobertB., 104 AD3d 1077, 1078 [2013]).
We consider next the mother's argument that she was not sufficiently warned of the[*3]risks of proceeding without an attorney. "[A] party isentitled to self-representation once the court determines that the decision to do so isknowingly, intelligently and voluntarily made. Although it is preferable that the court'sdetermination be made following an appropriate colloquy with the party on the record, itmay also be made upon an examination of all the potential relevant circumstances"(Matter of Bombard v Bombard, 254 AD2d 529, 529-530 [1998], lvdenied 93 NY2d 804 [1999] [citations omitted]; see Matter of Adams v Bracci, 61 AD3d 1065, 1066[2009], lv denied 12 NY3d 712 [2009]). Here, at the initial court appearance onApril 8, 2011, the mother was represented by an attorney, whom she states was assigned.By the next court date, July 15, 2011, she had terminated the services of the assignedattorney and appeared with a substituted retained attorney. At the next appearance, thefather told the court that he was switching attorneys and, at the ensuing appearance onAugust 10, 2011, the mother informed the court that she wanted to terminate the servicesof her retained attorney. Her attorney was present and, after confirming that the motherhad discussed such action with the attorney, the court permitted the attorney towithdraw.
Noting the multiple adjournments and delays that had occurred by such time, manycaused by the switching of attorneys by both parties, the mother was admonished toobtain substitute counsel before the next court date. Over a month later, on September14, 2011, the mother appeared and stated that she had not been able to retain a newattorney and was involved in a dispute with her former retained attorney about fees. Thecourt stated that it would grant yet another adjournment, but that a trial date would be setwith no more adjournments permitted, and the court also reminded the mother that shecould apply for assigned counsel.[FN3]The mother next appeared onNovember 30, 2011, stating that she was representing herself and that she was ready toproceed with the hearing. The mother had already appeared and prepared documents inmany of the proceedings pertaining to the child without an attorney and, among otherthings, she had obtained subpoenas for several witnesses prior to the hearing. Under allthe circumstances, we are satisfied that the record sufficiently reflects that the motherwaived her statutory right to counsel knowingly, intelligently and voluntarily (see Matter of Tavianna CC.[Maceo CC.], 99 AD3d 1132, 1134-1135 [2012], lv denied 20 NY3d856 [2013]; Matter of Loomis vYu-Jen G., 81 AD3d 1083, 1084-1085 [2011]; Matter of Adams vBracci, 61 AD3d at 1066; Matter of Pacheco v Stearns, 23 AD3d 711, 712[2005]).[FN4]
Family Court did not abuse its discretion in drawing a negative inference from themother's failure to call her current husband, who had knowledge regarding conditions intheir [*4]home and relevant conduct by him that had beenportrayed in a negative light during the father's case, and he was undisputedly availablesince he was present on some of the hearing days (see Matter of John HH. v Brandy GG., 52 AD3d 879, 880[2008]). We have reviewed the mother's remaining arguments and find no basis to setaside Family Court's order modifying the prior custody order.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the modified order is affirmed,without costs.
Footnote 1:Family Court noted in itsdecision that 18 petitions had been filed since the most recent dispute had developed inFebruary 2011.
Footnote 2:The parties' initialappearances were before a Judicial Hearing Officer, but the hearing eventuallycommenced before Judge Potter. However, during the hearing, which occurred betweenNovember 2011 and May 2012, Judge Potter retired and the parties did not object toJudge Morris listening to the recordings of the three prior days of testimony and thencontinuing the hearing.
Footnote 3:The relevantproceedings to this point had been held in front of the Judicial Hearing Officer.However, the mother objected at the September 14, 2011 appearance to the JudicialHearing Officer continuing to hear the matter and, accordingly, the next appearance wasbefore Judge Potter.
Footnote 4:We note that, unlike Matter of Hassig v Hassig (34AD3d 1089 [2006]), a case upon which the mother relies, here the mother wasrepresented by counsel when she first appeared in court (as well as at several ensuingappearances) and she was later allowed repeated adjournments to obtain new counsel,including an adjournment after she had been reminded of her right to assigned counsel ifshe could not afford counsel.