| Matter of Edick v Gagnon |
| 2016 NY Slip Op 03559 [139 AD3d 1126] |
| May 5, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Chad L. Edick, Respondent, vJacqueline M. Gagnon, Appellant. (And Another RelatedProceeding.) |
Jeffrey A. Aumell, Canastota, for appellant.
Paul H. Hadley, Waterville, for respondent.
William L. Koslosky, Utica, attorney for the child.
McCarthy, J.P. Appeal from an order of the Family Court of Madison County(DiStefano, J.), entered September 26, 2014, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custodyof the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a child (born in 2011). In April 2012, the father filed a petition seekingcustody of the child, who was living with the mother at that time. In June 2012, themother also filed a petition seeking custody of the child. Eventually, Family Courtordered temporary joint legal custody, with primary physical custody to the father, andvisitation to the mother of two consecutive weekends for every weekend that the childspent with the father. After a hearing, Family Court granted joint legal custody to theparties, with primary physical custody to the father and provided the mother withvisitation during alternate weekends. The mother appeals.
At trial, proof was introduced that the mother's home was messy to the point of beingunsanitary. A social services caseworker testified to visiting the home and finding thechild with food stains on his face and wearing a diaper saturated with urine and feces.According to the caseworker, the mother explained that the brown and orange stains thatwere on the child's bedding were the result of the child finding a can in the garbage andcutting himself on it. [*2]Another witness, who knew themother, noticed that the mother used "very unclean" bottles to feed the child formula that"obviously[ ] had gone bad." The same witness testified to the mother's references to thechild as "whine-ass" and explained that the mother made her boyfriend a priority over thechild. The mother, during her testimony, admitted that the home was very dirty duringthis time and explained that it was due to her stress regarding a breakup with herboyfriend. The mother acknowledged that she was unemployed. Multiple witnessesagreed that the mother had attempted to make the father pay her $500 as a condition tovisiting the child.
The father, who was employed by the military, testified that, after receivingtemporary physical custody of the child, he ensured that the child had received hisneeded shots, therapy for speech and language and therapy for issues with aggression. Hefurther explained that he has voluntarily taken parenting classes at his military base.According to the father, the child no longer receives speech therapy because the child isno longer developmentally delayed. The father's wife testified that, within the first threeweeks of the father receiving temporary custody of the child, the child gained3
Considering the evidence of the greater stability in the father's home and theevidence of the child's improvements in health and development once he began residingthere, and deferring to Family Court's credibility determinations, we find a sound andsubstantial basis for the court's conclusion that the child's best interests were served byawarding physical custody to the father and by awarding the mother visitation duringalternate weekends (see Matterof Daniel TT. v Diana TT., 127 AD3d 1514, 1516 [2015]; Matter of Kayla Y. v Peter Z.,125 AD3d 1126, 1127 [2015]).[FN*] Further, assuming that the mother iscorrect in her contention that photographs depicting the state of her home wereerroneously introduced into evidence, we find such errors to be harmless. Thephotographs only confirmed what the mother had already testified to—that herhome was very unclean (seeMatter of Jolynn W. v Vincent X., 85 AD3d 1217, 1218 n [2011], lvdenied 17 NY3d 713 [2011]; Matter of Nicole VV., 296 AD2d 608, 613[2002], lv denied 98 NY2d 616 [2002]). Finally, contrary to the mother'scontention, the fact that a child protective services report is unfounded and thereforeinadmissible (see Family Ct Act § 651-a) does not renderinadmissible competent evidence related to the incidents underlying that investigation.The mother's remaining contentions are without merit.
Egan Jr., Rose, Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:The mother incorrectlycontends that Family Court was required to determine whether there had been a changein circumstances. The court is not required to engage in such an analysis when it has notyet made an initial custody and visitation determination (see Matter of Williams vDowgiallo, 90 AD3d 942, 942-943 [2011]; Matter of Quinones v Gonzalez, 79 AD3d 893, 894[2010]).