Opinion
1156 CAF 18–01010
12-20-2019
In the Matter of Nicholas PALIANI, Petitioner–Respondent, v. Stephanie SELAPACK, Respondent–Appellant. (Appeal No. 1.)
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT. BRIDGET L. FIELD, ROCHESTER, FOR PETITIONER–RESPONDENT. AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.
BRIDGET L. FIELD, ROCHESTER, FOR PETITIONER–RESPONDENT.
AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent mother appeals from an order of protection issued in a proceeding pursuant to Family Court Act article 8 upon a finding that she committed a family offense. In appeal No. 2, the mother appeals from an order entered in a custody proceeding pursuant to Family Court Act article 6 determining that she willfully violated an order of custody. Both orders provided that the mother would have only supervised visitation with the subject child.
With respect to appeal No. 1, we reject the mother's contention that petitioner father failed to establish by a preponderance of the evidence that the mother committed the family offense of aggravated harassment in the second degree (see Matter of Clausell v. Salame, 156 A.D.3d 1401, 1402, 65 N.Y.S.3d 873 [4th Dept. 2017] ; Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793 [2d Dept. 2013] ; see also Family Ct Act § 832 ; Penal Law § 240.30[1][a] ). The father testified that, after Family Court issued a decision granting him sole custody of the child, the mother called him and told him that if he took the child away from her, she would kill herself and the child. While the mother denied the allegation, the court found that her testimony was not credible and credited the testimony of the father. The court's "assessment of the credibility of the witnesses is entitled to great weight" ( Matter of Danielle S. v. Larry R.S., 41 A.D.3d 1188, 1189, 838 N.Y.S.2d 740 [4th Dept. 2007] ), and we conclude that the record supports the court's credibility determinations and its determination that the father met his burden on the family offense petition (see Matter of Martin v. Flynn, 133 A.D.3d 1369, 1370, 20 N.Y.S.3d 812 [4th Dept. 2015] ).
Contrary to the mother's contention in appeal No. 2, we conclude that the father established by clear and convincing evidence that the mother willfully violated the custody order by failing to notify the father of medical issues involving the child "as soon as reasonably possible," as provided in the custody order (see Matter of Tarrant v. Ostrowski, 96 A.D.3d 1580, 1580–1581, 947 N.Y.S.2d 726 [4th Dept. 2012], lv denied 20 N.Y.3d 855, 2013 WL 69170 [2013] ; see generally Matter of Palazzolo v. Giresi–Palazzolo, 138 A.D.3d 866, 867, 28 N.Y.S.3d 348 [2d Dept. 2016] ). As in appeal No. 1, there is a sound and substantial basis to support the court's credibility determinations (see Tarrant, 96 A.D.3d at 1580–1581, 947 N.Y.S.2d 726 ; Matter of Wojcik v. Newton [Appeal No. 2], 11 A.D.3d 1011, 1012, 782 N.Y.S.2d 236 [4th Dept. 2004] ).
With respect to both appeals, we reject the mother's contention that the court erred in directing that her visitation be supervised. The determination "whether visitation should be supervised is a matter left to [the c]ourt's sound discretion and it will not be disturbed as long as there is a sound and substantial basis in the record to support it" ( Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757 [4th Dept. 2010], lv denied 16 N.Y.3d 701, 2011 WL 67515 [2011] [internal quotation marks omitted]; see Matter of Talbot v. Edick, 159 A.D.3d 1406, 1407, 70 N.Y.S.3d 137 [4th Dept. 2018] ). The court's determination has the requisite support in the record inasmuch as the record establishes that the mother's behavior, including threatening and making disparaging remarks about the father and attempting to limit his involvement with the child, was harmful to the child's relationship with the father and thus that supervised visitation with the mother was in the best interests of the child (see Matter of Watson v. Maragh, 156 A.D.3d 801, 802–803, 67 N.Y.S.3d 42 [2d Dept. 2017] ; Matter of Stewart v. Stewart, 56 A.D.3d 1218, 1218–1219, 867 N.Y.S.2d 623 [4th Dept. 2008] ).