| Matter of Christina KK. v Kathleen LL. |
| 2014 NY Slip Op 04989 [119 AD3d 1000] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Christina KK., Respondent, vKathleen LL., Appellant. (Proceeding No. 1.) In the Matter of Christina KK.,Respondent, v Kathleen LL., Appellant, et al., Respondent. (Proceeding No.2.) |
Michelle E. Stone, Vestal, for appellant.
Michael P. Graven, Owego, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Chemung County (Hayden,J.), entered January 28, 2013, which, among other things, partially granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof visitation.
Petitioner (hereinafter the mother) has seven children. At all times relevant to theseproceedings, two of the mother's children—Nicholas KK. (born in 1999) andJulianna I. (born in 2007)—resided with her in a duplex located in the City ofElmira, Chemung County; respondent Kathleen LL. (hereinafter the grandmother), thechildren's maternal grandmother, occupied the other half of the duplex. By order enteredApril 7, 2011, Family Court granted the grandmother visitation with Nicholas andJulianna every week from 7:00 p.m. Friday to 7:00 p.m. Saturday and at such additionaltimes as the parties may agree.
Following entry of the April 2011 order, the relationship between the mother and thegrandmother deteriorated significantly, culminating in what the mother described as aliteral tug-of-war over Julianna in July 2012. During the course of this incident, whichwas witnessed by the mother's remaining children, the grandmother allegedly shoved themother into a door and thereafter punched the mother in the face. As a result of thisaltercation, the grandmother was charged with harassment in the seconddegree,[FN1] andthe mother commenced proceeding No. 1 alleging a family offense and seeking an orderof protection. Additionally, the mother commenced proceeding No. 2 seeking to modifythe prior order of visitation by suspending the grandmother's visits with Nicholas andJulianna. Family Court, ex parte, issued a no-contact temporary order of protection infavor of the mother, Nicholas and Julianna and, following a hearing, granted the mother'sfamily offense petition and issued a two-year order of protection in favor of the mother.Family Court also granted the mother's modification petition to the extent that thegrandmother was granted supervised visitation with Julianna; such visitations were to besupervised by Julianna's father, respondent Christopher I., and would occur at such timesas could be agreed upon by Christopher I. and the grandmother. This appeal by thegrandmother ensued.[FN2]
[*2] With respect to the mother's family offense petition,"whether a family offense [has been] committed is a factual issue to be resolved by. . . Family Court, and its determinations regarding the credibility ofwitnesses are entitled to great weight on appeal" (Matter of Shana SS. v Jeremy TT., 111 AD3d 1090, 1091[2013], lv denied 22 NY3d 862 [2014] [internal quotation marks and citationsomitted]; see Matter of Brito vVasquez, 93 AD3d 842, 843 [2012]). Although Family Court did not specifywhich of the family offenses set forth in Family Ct Act § 821 (1) (a) thegrandmother did in fact commit, our independent review of the record reveals thatpetitioner established—by a fair preponderance of the evidence (seeFamily Ct Act § 832; Matter of Christina MM. v George MM., 103 AD3d 935,936 [2013])—that the grandmother committed the family offense of harassment inthe second degree.
Insofar as is relevant here, "[a] person is guilty of harassment in the second degreewhen, with intent to harass, annoy or alarm another person . . . [h]e or shestrikes, shoves, kicks or otherwise subjects such other person to physical contact, orattempts or threatens to do the same" (Penal Law § 240.26 [1]). Notably,"[t]he requisite intent may be inferred from the surrounding circumstances" (Matter ofShana SS. v Jeremy TT., 111 AD3d at 1091). Here, the mother testified that, duringwhat began as a verbal confrontation with the grandmother and quickly escalated into aphysical tug-of-war over Julianna, the grandmother "shoved [her] into the door" of herresidence, causing her to fall back and strike her head on a door ornament. The motherfurther testified that, when she regained her footing and attempted to reclaim Julianna,the grandmother "punched [her] in the face." As noted previously, this incident waswitnessed by the mother's remaining children and, as a result thereof, a child protectiveservices report was indicated against the grandmother for inadequateguardianship.[FN3]Granting due deference to Family Court's credibility determinations (see Matter of Robert AA. v ColleenBB., 101 AD3d 1396, 1399 [2012], lv denied 20 NY3d 860 [2013]; Matter of Wendy Q. v JasonQ., 94 AD3d 1371, 1372-1373 [2012]), such proof, coupled with the mother'stestimony as to the longstanding and ongoing discord with the grandmother, wassufficient to establish the underlying family offense—notwithstanding thegrandmother's testimony to the contrary.
As for the mother's modification petition, "[a] petitioner seeking to modify anexisting visitation order must demonstrate a change in circumstances that reflects agenuine need for the modification so as to ensure the best interests of the child" (Matter of Telfer v Pickard, 100AD3d 1050, 1051 [2012] [internal quotation marks and citations omitted]; see Matter of Stellone v Kelly,45 AD3d 1202, 1204 [2007]). Although Family Court did not expressly reference its[*3]threshold finding that a change in circumstances hadoccurred, our independent review of the record (see Matter of D'Angelo v Lopez, 94 AD3d 1261, 1262[2012]; Matter of Bond vMacLeod, 83 AD3d 1304, 1305 [2011]) confirms that such a finding waswarranted based upon the marked deterioration in the relationship between the motherand the grandmother (see Matter of Stellone v Kelly, 45 AD3d at 1204; see generally Matter of Johnson vZides, 57 AD3d 1318, 1319 [2008]). Accordingly, Family Court properlyconsidered whether—consistent with Julianna's best interests—modificationof the existing visitation arrangement was necessary (see Matter of Bond vMacLeod, 83 AD3d at 1305). In reviewing a modification request, we must considera number of factors, including "the basis and reasonableness of the parent's objections [tovisitation between the grandparent and the child], the grandparent's nurturing skills andattitude toward the parent, the . . . [position of the attorney for the child]and the child's wishes" (Matterof Burton v Barrett, 104 AD3d 1084, 1087 [2013] [internal quotation marks andcitation omitted]). To that end, although an acrimonious relationship between a parentand a grandparent typically is not a sufficient basis upon which to deny visitation (see Matter of Laudadio vLaudadio, 104 AD3d 1091, 1093 [2013]; Matter of Stellone v Kelly, 45AD3d at 1204), the propriety of visitation in general—as well as the determinationas to whether such visitation should be supervised—are matters generally left tothe considerable discretion of Family Court, and the court's resolution of these issues, ifsupported by a sound and substantial basis in the record, will not be disturbed by thisCourt (see Matter of Shana SS. v Jeremy TT., 111 AD3d at 1092; Matter of Burrell v Burrell, 101AD3d 1193, 1194 [2012]).
Here, the mother acknowledged at the hearing that Julianna and the grandmother hada close relationship and, upon appeal, the attorney for the child argues that, absent proofthat the grandmother posed a danger to Julianna, supervised visitation was unnecessary.The mother, however, testified at length regarding an ongoing family dispute with thegrandmother—detailing what she described as the grandmother's persistentattempts to interfere in various aspects of her life by, among other things, repeatedlyfiling reports with local law enforcement and social services agencies and commencingcourt proceedings. The mother also testified that the grandmother appears to have singledout Julianna for her affection, "favor[ing]" Julianna and having "[v]ery minimal" contactwith the mother's other children, causing the mother to be afraid that the grandmotherwill attempt to "grab" Julianna. Additionally, the documented—and quiteliteral—tug-of-war over Julianna in July 2012 speaks volumes as to the intensityof the animosity between the mother and the grandmother (cf. Matter of Wilson vMcGlinchey, 2 NY3d 375, 381-382 [2004]) and raises well-founded concerns as to,insofar as is relevant here, the grandmother's ability to respect the mother's role as aparent and to act in a manner consistent with Julianna's best interests. Under thesecircumstances, Family Court did not err in directing that the grandmother's visitationswith Julianna be supervised. That said, Family Court should not have effectivelydelegated the frequency and duration of such visitations to a third party, i.e., ChristopherI., and we therefore deem it appropriate to remit this matter to Family Court for thefashioning of an appropriate and more definitive visitation schedule (cf. Matter of Nicolette I. [LeslieI.], 110 AD3d 1250, 1255 [2013]). The grandmother's remaining contentions, tothe extent not specifically addressed, have been examined and found to be lacking inmerit.
[*4] Peters, P.J., Garry, Rose andClark, JJ., concur. Ordered that the order is modified, on the law, without costs, byreversing so much thereof as provided for visitation; matter remitted to the Family Courtof Chemung County for further proceedings not inconsistent with this Court's decision;and, as so modified, affirmed.
Footnote 1:Although the precisedisposition of the criminal charge is unclear, it appears that the grandmother was offeredan adjournment in contemplation of dismissal.
Footnote 2:Although thegrandmother's notice of appeal could have been drafted with greater clarity, we deem herappeal to be from each and every part of Family Court's order. Additionally, although themother's modification petition clearly sought to suspend the grandmother's visitation withrespect to both Nicholas and Julianna, the proof at the hearing focused solely on Juliannaand no mention of Nicholas was made in Family Court's resulting order. In light of this,and given that the grandmother's brief is limited to challenging the supervised visitationimposed with respect to Julianna, we will limit our visitation inquiry accordingly.
Footnote 3:As the mothervoluntarily relocated to a local shelter and sought an order of protection against thegrandmother following this incident, it does not appear that any action was taken againsther or that any preventative services were ordered.