Opinion
122 CAF 21-01328
04-28-2023
In the Matter of D.T., Petitioner-Respondent, v. C.T., Respondent-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT. KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR PETITIONER-RESPONDENT. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS R. BABILON OF COUNSEL), FOR RESPONDENT-APPELLANT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR PETITIONER-RESPONDENT.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., PERADOTTO, 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 of the third ordering paragraph directing that supervised parenting time is awarded to respondent "as the parties mutually agree" and as modified the order is affirmed without costs and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, awarded petitioner father sole legal and primary physical custody of the subject children, with supervised visitation to the mother "as the parties mutually agree."
Initially, the father and the attorney for the children (AFC) contend that the appeal should be dismissed due to the mother's improper service of the notice of appeal (see CPLR 2103 [a] ). Inasmuch as neither the father nor the AFC were prejudiced as a result of the mother's mistake, we exercise our discretion to disregard the irregularity (see CPLR 2001, 5520 [a] ; M Entertainment, Inc. v. Leydier , 71 A.D.3d 517, 518, 897 N.Y.S.2d 402 [1st Dept. 2010] ; see generally Ruffin v. Lion Corp. , 15 N.Y.3d 578, 582-583, 915 N.Y.S.2d 204, 940 N.E.2d 909 [2010] ; Matter of Conti v. Clyne , 120 A.D.3d 884, 886, 991 N.Y.S.2d 663 [3d Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 4230818 [2014] ).
We reject the mother's contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the subject children. Here, "the identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages" ( People v. Mencel , 206 A.D.3d 1550, 1552, 168 N.Y.S.3d 774 [4th Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 30, 194 N.E.3d 737 [2022] ; see generally Matter of Byler v. Byler , 207 A.D.3d 1072, 1073-1074, 170 N.Y.S.3d 459 [4th Dept. 2022], lv denied 39 N.Y.3d 901, 2022 WL 11448472 [2022] ; Matter of Colby II. [Sheba II.] , 145 A.D.3d 1271, 1272-1273, 43 N.Y.S.3d 587 [3d Dept. 2016] ), as well as by the maternal grandmother's testimony that she observed one of the subject children using his phone at the times the text messages were sent. Further, "there was no evidence ... that any omitted material was necessary for explanatory purposes" ( People v. Saylor , 173 A.D.3d 1489, 1491 n. 2, 102 N.Y.S.3d 796 [3d Dept. 2019] ), and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation (see People v. Smalls , 191 A.D.3d 1258, 1259, 141 N.Y.S.3d 573 [4th Dept. 2021], lv denied 36 N.Y.3d 1124, 146 N.Y.S.3d 201, 169 N.E.3d 559 [2021] ).
We also reject the mother's contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child "must zealously advocate the child's position." However, an attorney for the child is entitled to advocate a position that is contrary to a child's wishes when the attorney is "convinced ... that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child" ( 22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child's wishes, the attorney is still required to "inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position" ( 22 NYCRR 7.2 [d] [3]). Here, the children's wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record establishes that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children (see Matter of Vega v. Delgado , 195 A.D.3d 1555, 1556, 145 N.Y.S.3d 907 [4th Dept. 2021] ; Matter of Grabowski v. Smith , 182 A.D.3d 1002, 1004, 123 N.Y.S.3d 313 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047587 [2020] ; Matter of Viscuso v. Viscuso , 129 A.D.3d 1679, 1680-1681, 12 N.Y.S.3d 684 [4th Dept. 2015] ).
The mother's contention that the court erred in admitting into evidence a recorded telephone conversation between two non-party witnesses because it consisted of inadmissible hearsay is unpreserved inasmuch as the mother failed to object to the admission of the recording on that ground (see Matter of Norah T. [Norman T.] , 165 A.D.3d 1644, 1645, 85 N.Y.S.3d 326 [4th Dept. 2018], lv denied 32 N.Y.3d 915, 2019 WL 637865 [2019] ; Matter of Isobella A. [Anna W.] , 136 A.D.3d 1317, 1319, 25 N.Y.S.3d 465 [4th Dept. 2016] ).
Contrary to the mother's contention, we conclude that "there is a sound and substantial basis in the record to support [the court's] determination that it was in the child[ren's] best interests to award [sole custody] to the [father]" ( Matter of Conrad v. Conrad , 211 A.D.3d 1528, 1529, 180 N.Y.S.3d 756 [4th Dept. 2022] [internal quotation marks omitted]; see Matter of Rice v. Wightman , 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ). Further, there is a sound and substantial basis in the record supporting the determination to impose supervised visitation for the mother inasmuch as the record establishes that the mother frequently disparaged the father to the children (see Matter of Joyce S. v. Robert W.S. , 142 A.D.3d 1343, 1344-1345, 38 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1730862 [2017] ; Matter of Guillermo v. Agramonte , 137 A.D.3d 1767, 1769, 29 N.Y.S.3d 720 [4th Dept. 2016] ), exposed the children to domestic violence (see generally Matter of Carin R. v. Seth R. , 196 A.D.3d 776, 778, 151 N.Y.S.3d 498 [3d Dept. 2021] ; Matter of Anaya v. Hundley , 12 A.D.3d 594, 595, 785 N.Y.S.2d 479 [2d Dept. 2004] ), unwittingly allowed pornographic images of herself and her partner to be sent to the children's mobile devices, and failed to maintain a stable home environment for a period of several years (see generally Matter of Edmonds v. Lewis , 175 A.D.3d 1040, 1042, 108 N.Y.S.3d 611 [4th Dept. 2019], lv denied 34 N.Y.3d 909, 2020 WL 728588 [2020] ).
Finally, we agree with the mother that the court should have set a visitation schedule rather than ordering visitation as agreed upon by the parties "inasmuch as the record demonstrates that an order directing supervised visitation as mutually agreed upon by the parties would be untenable under the circumstances" ( id. at 1043, 108 N.Y.S.3d 611 ; see generally Matter of Kelley v. Fifield , 159 A.D.3d 1612, 1613-1614, 72 N.Y.S.3d 754 [4th Dept. 2018] ). We therefore modify the order accordingly and remit the matter to Family Court to fashion an appropriate schedule for supervised visitation in accordance with the best interests of the children.