Opinion
655 CAF 17–01458
08-22-2019
In the Matter of Leonard S. EDMONDS, Petitioner–Respondent, v. Haneefah LEWIS, Respondent–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT–APPELLANT. PAUL B. WATKINS, FAIRPORT, FOR PETITIONER–RESPONDENT. MARK A. SCHLECHTER, ROCHESTER, ATTORNEY FOR THE CHILD.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT–APPELLANT.
PAUL B. WATKINS, FAIRPORT, FOR PETITIONER–RESPONDENT.
MARK A. SCHLECHTER, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the second ordering paragraph to the extent that it delegates authority to determine the duration and frequency of respondent's supervised visitation and as modified the order is affirmed without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following memorandum: In this Family Court Act article 6 proceeding, respondent mother appeals from an order that, inter alia, granted after a hearing the petition of petitioner father seeking to modify a prior joint custody order by granting him sole custody of the subject child with supervised visitation to the mother. The parties are the parents of a child born in 2012. In October 2015, they stipulated to a joint custody order that granted primary physical residence of the child to the father and visitation to the mother. The mother's visitation was suspended in May 2016, following the child's disclosure of sexual abuse by the mother's boyfriend. After the mother agreed to keep her boyfriend away from the child, Family Court granted the mother supervised visitation. In December 2016, however, the court temporarily suspended that visitation and, although a referral was thereafter made to a supervising agency for supervision of the mother's visits with the child, there was a nine-month waiting list. As of March 2017, the mother's visitation had not resumed. On appeal, the mother contends that the Attorney for the Child (AFC) improperly substituted her judgment for that of the child by advocating a position that was contrary to the child's express wishes. As the mother correctly concedes, however, her contention is not preserved for our review because she made no motion to remove the AFC (see Matter of Mason v. Mason, 103 A.D.3d 1207, 1207–1208, 959 N.Y.S.2d 577 [4th Dept. 2013] ; Matter of Swinson v. Dobson, 101 A.D.3d 1686, 1687, 956 N.Y.S.2d 765 [4th Dept. 2012], lv denied 20 N.Y.3d 862, 2012 WL 7801756 [2013] ). In any event, the mother's contention lacks merit. An AFC "must zealously advocate the child's position ... even if the [AFC] believes that what the child wants is not in the child's best interests," unless the AFC "is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or 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][2], [3] ). Here, the record supports a finding that the child, who was five years old at the time of the hearing, "lack[ed] the capacity for knowing, voluntary and considered judgment" ( 22 NYCRR 7.2 [d][3]; see Matter of Eastman v. Eastman, 118 A.D.3d 1342, 1343, 987 N.Y.S.2d 752 [4th Dept. 2014], lv denied 24 N.Y.3d 910, 2014 WL 6643222 [2014] ) and that another outcome would have placed the child at risk (see Matter of Isobella A. [Anna W.], 136 A.D.3d 1317, 1320, 25 N.Y.S.3d 465 [4th Dept. 2016] ).
We reject the mother's additional contention that there is not a sound and substantial basis in the record to support the court's determination that it was in the child's best interests to award the father sole custody. In making a custody determination, " ‘the court must consider all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of [the parties] to provide for the child's emotional and intellectual development and the wishes of the child ... No one factor is determinative because the court must review the totality of the circumstances’ " ( Sheridan v. Sheridan, 129 A.D.3d 1567, 1568, 12 N.Y.S.3d 434 [4th Dept. 2015] ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). A court's evaluation of a child's best interests is entitled to great deference and will not be disturbed as long as it is supported by a sound and substantial basis in the record (see Sheridan, 129 A.D.3d at 1568, 12 N.Y.S.3d 434 ; Matter of Thillman v. Mayer, 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779 [4th Dept. 2011] ).
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 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" ( 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 Howell, 103 A.D.3d at 1231, 960 N.Y.S.2d 278 ; 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, there is a sound and substantial basis in the record to support the court's determination that it was in the child's best interests to award sole custody of the child to the father (see generally Matter of Jeremy J.A. v. Carley A., 48 A.D.3d 1035, 1036, 851 N.Y.S.2d 751 [4th Dept. 2008] ). The mother's refusal to believe the child's disclosure of sexual abuse and her continued commitment to the alleged abuser rendered her unfit to have custody of the child (see generally Matter of Kairis v. Kairis, 98 A.D.3d 1281, 1282, 951 N.Y.S.2d 297 [4th Dept. 2012], lv. denied 20 N.Y.3d 853, 2012 WL 6200736 [2012] ; Matter of Peet v. Parker, 23 A.D.3d 940, 941, 805 N.Y.S.2d 149 [3d Dept. 2005] ). Additionally, the record establishes that the quality of the home environment of the father is superior to that of the mother inasmuch as the mother resides in a one-bedroom apartment with the alleged abuser (see Matter of Braga v. Bell, 151 A.D.3d 1924, 1925–1926, 58 N.Y.S.3d 807 [4th Dept. 2017], lv. denied 30 N.Y.3d 905, 2017 WL 5491872 [2017] ). The record also establishes that the father, who was attentive to the child's disclosures of abuse, is better able to provide for the child's emotional and intellectual development (see generally Matter of Caughill v. Caughill, 124 A.D.3d 1345, 1347, 1 N.Y.S.3d 652 [4th Dept. 2015] ) and that the court's determination aligns with the child's desires.
We further reject the mother's contention that the court erred in directing that her visitation be supervised. "Supervised visitation is a matter left to the sound discretion of the court and will not be disturbed where ... there is a sound and substantial basis in the record to support such visitation" ( Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684 [4th Dept. 2011] ). Here, the record establishes that the mother repeatedly put the child at risk by violating court orders (see generally Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984, 986, 765 N.Y.S.2d 710 [3d Dept. 2003] ) and by permitting the alleged abuser to have access to the child (see Matter of Cory O. v. Katie P., 162 A.D.3d 1136, 1138–113978 N.Y.S.3d 480 [3d Dept. 2018] ). Thus, we conclude that there is a sound and substantial basis in the record for the court's determination to impose supervised visitation (see generally Matter of Joyce S. v. Robert W.S., 142 A.D.3d 1343, 1344, 38 N.Y.S.3d 300 [4th Dept. 2016], lv. denied 29 N.Y.3d 906, 2017 WL 1730862 [2017] ; Vieira, 83 A.D.3d at 1521, 922 N.Y.S.2d 684 ). Nevertheless, the court failed to set a supervised visitation schedule and it is unclear from the order whether the court intended to delegate its authority to set such a schedule to the parties or to the supervising agency (see generally Matter of Bonthu v. Bonthu, 67 A.D.3d 906, 907, 889 N.Y.S.2d 97 [2d Dept. 2009], lv dismissed 14 N.Y.3d 852, 901 N.Y.S.2d 134, 927 N.E.2d 554 [2010] ). Under either interpretation, we conclude that the court erred inasmuch as the record demonstrates that an order directing supervised visitation as mutually agreed by the parties would be untenable under the circumstances (see generally Matter of Kelley v. Fifield, 159 A.D.3d 1612, 1613–1614, 72 N.Y.S.3d 754 [4th Dept. 2018] ; Matter of Pierce v. Pierce, 151 A.D.3d 1610, 1611, 56 N.Y.S.3d 703 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4654065 [2017] ) and delegation of the court's authority to set a visitation schedule to a supervising agency is improper (see Matter of Ordona v. Cothern, 126 A.D.3d 1544, 1545–1546, 6 N.Y.S.3d 860 [4th Dept. 2015] ; Matter of Green v. Bontzolakes, 111 A.D.3d 1282, 1284, 974 N.Y.S.2d 211 [4th Dept. 2013] ). 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 child.