S., CHRISTY v. S., PHONESAVANH , 970 N.Y.S.2d 340 ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
740
CAF 12-00935
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.
IN THE MATTER OF CHRISTY S.,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
PHONESAVANH S., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)
SCOTT T. GODKIN, UTICA, FOR RESPONDENT-APPELLANT.
PAUL SKAVINA, ROME, FOR PETITIONER-RESPONDENT.
A.J. BOSMAN, ATTORNEY FOR THE CHILD, ROME.
Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered March 27, 2012 in a proceeding pursuant to,
inter alia, Family Court Act article 6. The order determined that the
mother should have sole custody of the subject child.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Pursuant to a 2008 stipulated joint custody order,
respondent father had primary physical custody of the child who is the
subject of these proceedings. In April 2011, petitioner in appeal No.
2, Oneida County Department of Social Services (DSS), commenced a
neglect proceeding pursuant to Family Court Act article 10 against the
father. The child was removed from the home and placed in foster
care, and thereafter DSS placed the child with petitioner in appeal
No. 1, the mother of the child. The mother filed a petition pursuant
to Family Court Act article 6 seeking to modify the 2008 joint custody
order by awarding her sole custody of the child. A hearing was held
on the neglect petition, and Family Court determined that the father
had neglected the child. A trial was then held on the modification
petition, and the court granted sole custody of the child to the
mother. In appeal No. 1, the father appeals from the order granting
the mother sole custody on the modification petition and, in appeal
No. 2, he appeals from the dispositional order on the neglect
petition.
Addressing first appeal No. 2, we conclude that, contrary to the
father’s contention, DSS established by a preponderance of the
evidence that the child is a neglected child (see Family Ct Act §§
1012 [f] [i] [B]; 1046 [b] [i]). The evidence established that the
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CAF 12-00935
child’s emotional condition has been impaired as a result of the
father’s “bizarre and paranoid behavior,” which resulted in the child
being frightened and depressed (Matter of Faith J., 47 AD3d 630, 630;
see generally Nicholson v Scoppetta, 3 NY3d 357, 371-372). The
child’s out-of-court statements were adequately corroborated by the
father’s statements to the DSS caseworker (see Matter of Karl L., 224
AD2d 841, 842-843) and the child’s testimony (see generally Matter of
Christina F., 74 NY2d 532, 536-537).
With respect to appeal No. 1, the adjudication of neglect
constituted a change in circumstances that warranted a determination
whether a modification of the custody arrangement set forth in the
2008 joint custody order was in the best interests of the child (see
Matter of Mark RR. v Billie RR., 95 AD3d 1602, 1602-1603; Matter of
Jeremy J.A. v Carley A., 48 AD3d 1035, 1036), and we conclude that the
court properly determined that it was in the child’s best interests
for the mother to have sole custody.
Entered: July 19, 2013 Frances E. Cafarell
Clerk of the Court