Opinion
986 CAF 21-01790
02-10-2023
In the Matter of Jaytoya Ann BAILEY, Petitioner-Respondent, v. Donald Albert BAILEY, Respondent-Appellant. (Appeal No. 1.)
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT. SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILDREN.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating that part stating that the order is entered upon the default of respondent, and as modified the order is affirmed without costs.
Memorandum: In these consolidated appeals arising from proceedings pursuant to article 6 and article 8 of the Family Court Act, respondent father appeals in appeal No. 1 from an order of protection directing that he have no contact with petitioner mother and the subject children for a period of two years. In appeal No. 2, the father appeals from an order that, inter alia, granted sole legal custody to the mother and suspended the father's visitation. Initially, we agree with the father in appeal No. 1 that Family Court erred in entering the order of protection upon his default based on his failure to appear in court. The record establishes that the father was represented by counsel, and we have previously determined that "[w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded" ( Matter of Abdo v. Ahmed , 162 A.D.3d 1742, 1743, 76 N.Y.S.3d 436 [4th Dept. 2018] [internal quotation marks omitted]). We therefore modify the order accordingly.
The father failed to preserve for our review his contention in both appeals that the court erred in conducting part of the fact-finding hearing on the petitions in his absence (see Matter of Jaydalee P. [Codilee R.] , 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ). In any event, we conclude that "the court did not abuse its discretion in conducting [that part of] the hearing in his absence inasmuch as he appeared by counsel and had notice of the hearing" ( Matter of Williams v. Richardson , 181 A.D.3d 1292, 1292, 120 N.Y.S.3d 679 [4th Dept. 2020], lv denied 36 N.Y.3d 911, 2021 WL 1685619 [2021] ; see Matter of Triplett v. Scott , 94 A.D.3d 1421, 1422, 942 N.Y.S.2d 303 [4th Dept. 2012] ).
With respect to the merits on appeal No. 1, we agree with the father that "[the court] erred in issuing an order of protection without adhering to the procedural requirements of Family Court Act § 154-c (3) ..., inasmuch as the court did not make a finding of fact that [the mother] was entitled to an order of protection based upon ‘a judicial finding of fact, judicial acceptance of an admission by [the father] or judicial finding that the [father] has given knowing, intelligent and voluntary consent to its issuance’ " ( Matter of Hill v. Trojnor , 137 A.D.3d 1671, 1672, 28 N.Y.S.3d 749 [4th Dept. 2016], quoting § 154-c [3] [ii] ). Indeed, the court failed to specify which family offense the father committed. Nevertheless, "remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence" ( Matter of Langdon v. Langdon , 137 A.D.3d 1580, 1582, 27 N.Y.S.3d 750 [4th Dept. 2016] ; see Matter of Masciello v. Masciello , 130 A.D.3d 626, 626, 12 N.Y.S.3d 299 [2d Dept. 2015] ). Exercising our independent review power (see Matter of Telles v. Dewind , 140 A.D.3d 1701, 1701, 34 N.Y.S.3d 299 [4th Dept. 2016] ), we conclude that the record is sufficient to establish by a fair preponderance of the evidence that the father committed the family offenses of criminal obstruction of breathing or blood circulation ( Penal Law § 121.11 ; see generally Matter of Rosa N. v. Luis F. , 166 A.D.3d 451, 452, 87 N.Y.S.3d 155 [1st Dept. 2018] ) and stalking in the fourth degree (§ 120.45 [1]; see generally Matter of Cousineau v. Ranieri , 185 A.D.3d 1421, 1422, 128 N.Y.S.3d 120 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6788983 [2020] ), warranting the issuance of an order of protection against him (see Family Ct Act § 832 ).
In appeal No. 2, the father contends that there is not a sound and substantial basis in the record to support the court's determination to suspend his visitation. We reject that contention. Although the court did not specify the factors it relied on in conducting its best interests analysis (see Matter of Howell v. Lovell , 103 A.D.3d 1229, 1231, 960 N.Y.S.2d 278 [4th Dept. 2013] ), "[o]ur authority in determinations of custody [and visitation] is as broad as that of Family Court ... and where, as here, the record is sufficient for this Court to make a best interests determination ..., we will do so in the interests of judicial economy and the well-being of the child[ren]" ( Matter of Bryan K.B. v. Destiny S.B. , 43 A.D.3d 1448, 1450, 844 N.Y.S.2d 535 [4th Dept. 2007] ; see also Matter of Butler v. Ewers , 78 A.D.3d 1667, 1667, 910 N.Y.S.2d 831 [4th Dept. 2010] ; see generally Matter of Louise E. S. v. W. Stephen S. , 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985] ). Here, we conclude that the court properly suspended the father's visitation with the children (see generally Matter of Owens v. Chamorro , 114 A.D.3d 1037, 1039-1040, 981 N.Y.S.2d 163 [3d Dept. 2014] ). Although visitation with a noncustodial parent is presumed to be in a child's best interests (see Matter of Granger v. Misercola , 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ), the mother rebutted that presumption inasmuch as she demonstrated by a preponderance of the evidence (see id. ) that the children's "health and safety were compromised" while in the father's care ( Matter of Jared MM. v. Mark KK. , 205 A.D.3d 1084, 1090, 168 N.Y.S.3d 555 [3d Dept. 2022] ; see generally Domestic Relations Law § 240 [1] ; Matter of Robert C. E. v. Felicia N. F. , 197 A.D.3d 100, 104, 151 N.Y.S.3d 301 [4th Dept. 2021], lv denied 37 N.Y.3d 915, 2021 WL 5898010 [2021] ).