Opinion
2019-11682 2019-11929 Docket Nos. N-4505/17, N-4506/17, V-13675/17, V-13676/17, V-4338/19, V-4339/19
03-24-2021
In the MATTER OF JUSTICE F. (Anonymous). Administration for Children's Services, petitioner; v. Jessica V. (Anonymous), et al., respondents. (Proceeding No. 1) In the Matter of Jesse F. (Anonymous). Administration for Children's Services, petitioner; v. Jessica V. (Anonymous), et al., respondents. (Proceeding No. 2) In the Matter of Domingo Figueroa, respondent, v. Jessica Varney, appellant. (Proceeding No. 3) In the Matter of Jessica Varney, appellant, v. Domingo Figueroa, respondent. (Procceding No. 4)
Cheryl Charles–Duval, Brooklyn, NY, for appellant. Helene Chowes, New York, NY, for respondent in Proceeding Nos. 3 and 4. James E. Johnson, Corporation Counsel, New York, N.Y. (Melanie T. West and Diana Lawless of counsel), for petitioner in Proceeding Nos. 1 and 2. Heath J. Goldstein, Jamaica, NY, attorney for the children Justice F. and Jesse F.
Cheryl Charles–Duval, Brooklyn, NY, for appellant.
Helene Chowes, New York, NY, for respondent in Proceeding Nos. 3 and 4. James E. Johnson, Corporation Counsel, New York, N.Y. (Melanie T. West and Diana Lawless of counsel), for petitioner in Proceeding Nos. 1 and 2.
Heath J. Goldstein, Jamaica, NY, attorney for the children Justice F. and Jesse F.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act articles 6 and 10, the mother appeals from (1) an order of the Family Court, Queens County (Diane Costanzo, J.), dated August 21, 2019, and (2) an order of the same court dated September 10, 2019. The first order, insofar as appealed from, after a hearing, granted the father's petition for sole custody of the children Justice F. and Jesse F., with supervised parental access to the mother, and denied the mother's cross petition for sole custody of the children Justice F. and Jesse F. The second order set a schedule for supervised parental access.
ORDERED that the order dated August 21, 2019, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order dated September 10, 2019, is affirmed, without costs or disbursements.
In February 2017, the Administration for Children's Services (hereinafter ACS) commenced related neglect proceedings, inter alia, alleging that the mother suffered from a mental illness which impaired her ability to care for her three children. The father and the mother petitioned and cross-petitioned, respectively, for sole custody of two of the children, Justice F. and Jesse F. (hereinafter together the subject children). On April 16, 2019, the Family Court issued an order of fact-finding without admission upon the mother's consent in the neglect proceeding, finding that she neglected her three children. The court conducted a combined dispositional hearing and custody hearing, at which the mother requested joint custody of the subject children. In the orders appealed from, the court, inter alia, awarded sole custody of the subject children to the father with supervised parental access to the mother.
The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Domestic Relations Law § 70[a] ; Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765 ). "Although joint custody is encouraged as a voluntary alternative, it is appropriate only in cases where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion. It is inappropriate, however, where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child" ( Matter of Laura A.K. v. Timothy M., 204 A.D.2d 325, 326, 611 N.Y.S.2d 284 [citations and internal quotation marks omitted]; see Matter of Lett v. Green, 184 A.D.3d 642, 123 N.Y.S.3d 837 ; Matter of Turcios v. Cordero, 173 A.D.3d 1048, 1049, 100 N.Y.S.3d 569 ; Matter of Pitkanen v. Huscher, 167 A.D.3d 901, 901, 90 N.Y.S.3d 249 ; Matter of Toro v. Williams, 167 A.D.3d 634, 636, 89 N.Y.S.3d 228 ). Inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Turcios v. Cordero, 173 A.D.3d at 1049, 100 N.Y.S.3d 569 ; Matter of Pitkanen v. Huscher, 167 A.D.3d at 901, 90 N.Y.S.3d 249 ; Matter of Pena v. Cordero, 152 A.D.3d 697, 698, 58 N.Y.S.3d 581 ). Here, the Family Court's determination that the subject children's best interests would be served by awarding sole custody to the father has a sound and substantial basis in the record and will not be disturbed.
The Family Court also providently exercised its discretion in directing that the mother's parental access with the subject children be supervised. A noncustodial parent is entitled to meaningful parental access, and denial of that right must be based on substantial evidence that parental access would be detrimental to the welfare of the child (see Matter of Lyons v. Knox, 126 A.D.3d 798, 5 N.Y.S.3d 250 ; Matter of Giannoulakis v. Kounalis, 97 A.D.3d 748, 948 N.Y.S.2d 415 ; Cervera v. Bressler, 90 A.D.3d 803, 806, 934 N.Y.S.2d 500 ; Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 775, 875 N.Y.S.2d 512 ; Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313 ). "[T]he determination of [parental access] is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record" ( Matter of Sinnott–Turner v. Kolba, 60 A.D.3d at 775, 875 N.Y.S.2d 512 ; see Matter of Ottaviano v. Ippolito, 132 A.D.3d 681, 17 N.Y.S.3d 491 ; Matter of Castagnola v. Muller, 105 A.D.3d 954, 963 N.Y.S.2d 681 ; Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 837 N.Y.S.2d 313 ). Here, the evidence presented at the hearing supports the court's determination that the mother has failed to engage in the necessary and appropriate treatment to ameliorate her mental health issues, she lacks insight into her ongoing mental illness, and she has failed to acknowledge and address many of the issues which led to the filing of the neglect petitions against her in the first instance. Consequently, under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ), unsupervised parental access with the mother at the present time would not be in the subject children's best interests.
CHAMBERS, J.P., AUSTIN, MILLER and WOOTEN, JJ., concur.