Cornelius C. v. Linda C. , 123 A.D.2d 536 ( 1986 )

Order of the Family Court, Bronx County (John F. Pollard, J.), entered January 9, 1985, which denied petitioner’s application for custody as to two of his children and granted him custody of the third, is modified, on the law and the facts and in the exercise of discretion, to order a new hearing after further investigation as to the fitness of the respective parents and the present custody is continued on a temporary basis until said hearing, and, as so modified, the order is otherwise affirmed, without costs and without disbursements.

Cornelius and Linda C. were married in 1968 and separated by 1980. Mrs. C. was awarded custody of three children: Regina, born in 1970; Karen, born in 1973; and Cornelius, Jr., born in 1979.

During the summer of 1984, Regina and Karen came to their father’s office at one point and told him that their mother had been hearing voices from the roof and had been hitting the girls unnecessarily. Regina did most of the speaking. She requested that her father take them away from their mother’s home and help them in removing Cornelius, Jr. from the house as well.

Mr. C. immediately called the police and the Bureau of Child Welfare. After the filing of the complaint with the Bureau of Child Welfare, the agency interviewed Mrs. C. Before the investigation had been fully completed, Regina left the respondent’s home and went to live with her father. She complained that she could no longer live with her mother because of the mother’s abnormal behavior. She also complained that the respondent had kept Regina home from school unnecessarily, often sent the girls to the store late at night and constantly told them about her own childhood. Shortly after Regina came to live with her father, he filed a petition seeking custody of all three of his children and terminating his wife’s custodial rights.

A hearing was held in the Family Court, at which time the other children denied Regina’s allegations. They stated that they wished to continue to live with their mother, with regular visitation from their father. Regina, however, continued to claim that her mother’s abnormal behavior was dangerous and she reiterated that she wished to live with her father. Two contradictory reports were also submitted to the court from two court-appointed psychiatrists who had examined all of the individuals involved. Dr. Annis Wasfi, a staff psychiatrist at the court’s Mental Health Clinic, opined that the two younger children should reside with their mother since she displayed no outward signs of mental disease or defect. On the other hand, Dr. Myles Schneider concluded that all three children should reside with their father since their mother exhibited signs of schizophrenia and gave the over-all appearance that she was unable to care for her children. At the conclusion of the hearing, the court found that Karen and Cornelius, Jr. should stay with their mother and Regina with her father. The opinion stated in pertinent part:

"[TJhat the Respondent mother’s household is not always maintained in an orderly and sanitary condition * * *

"[TJhat the Respondent mother has displayed behavior towards the children which might question her emotional stability when she is under stress * * *

"[TJhat while this instability does not presently pose a danger to the health and welfare of the children in the household. It appears capable of deteriation [sic] if personal counseling is not undertaken by the mother.”

The court further stated, after detailing its reasons for leaving the children in the status quo, that: "I can not urge too strongly that the mother obtain some kind of counseling. Not with standing [sic] the fact that she doesn’t believe she needs any counseling of any kind. The Court is not impressed with that belief. The sooner she gets counseling, the sooner, I believe this entire matter will be helped.”

When making a custody award, the primary factors to consider in determining the best interests of the children are the ability to provide for the child’s emotional and intellectual development, the quality of the home environment and the parental guidance that is provided. (Matter of Louise E. S. v W. Stephen S., 64 NY2d 946.) Other factors include, of course, the desire of the child whose custody is in issue and the stability of the respective homes (supra, at p 947).

While Family Court may not be incorrect in its findings, the facts indicate that a further investigation is necessary before any permanent custody is ordered in this case.

Thus, Dr. Schneider, in concluding that all three children should be cared for by their father, found that Mrs. C.’s residence was a poor environment for the children not only because of her mental illness, but because of her failure to provide a clean and stable environment. "Although the appointment for the home visit had been made during the week preceding its actual occurrence, the apartment was strikingly dirty when visited. Indeed, cockroaches were present in large numbers. They were in the kitchen, crawling on walls and across the kitchen table. They were noted to be in the sink, both in the kitchen and the bathroom. Further, there was food and crumbs on the floor to such a degree that it was hard to step without 'crunching’ something underfoot. The apartment as a whole appeared to be dark, poorly lit, disorganized and not clean.”

On the other hand, Dr. Schneider noted repeatedly that the physical surroundings of the father’s home, which he shared with his live-in girlfriend who is employed as a teacher, were entirely different. He noted that the physical environment at the petitioner’s home was neat, clean and organized; that it appeared to make the adjustment of the children easier; and, that they responded much more promptly to their father’s authority and were much less unruly and agitated.

Dr. Schneider found that Mrs. C.’s speech and reasoning were confused and that her answers to his questions were unresponsive and difficult to follow. She openly admitted not only to Dr. Schneider, but also to Dr. Wasfi, that she had heard voices on the roof regularly and also claimed that she knew petitioner’s girlfriend to be in her 50’s and to own a dress shop in the neighborhood for years. Contrary to this, however, the girlfriend is 35 and, as noted, is a school teacher.

Dr. Schneider also investigated the allegations of Regina concerning the fact that young Cornelius was commonly attended to by Karen or Regina and that both older girls were kept home from school unnecessarily. Karen also stated that she disciplined Cornelius, instead of her mother, and there were other allegations by Karen that Cornelius’ behavior went completely unchecked. It was this lack of control and the unhealthy environment which led to Dr. Schneider’s conclusion that the children should be moved away from their mother.

Mrs. C. claimed that the girls had come down with many colds and viruses during the school year and were kept home for health reasons. Although unsupported by any other evidence, she alleged that the children were kept home approximately 50 times for colds and viruses. According to the allegations of Regina, many of the occasions were just to keep their mother company. Moreover, when Karen was asked what a routine week was like, she stated that all she did was go to school, come home, watch TV, eat and sleep. (Dr. Schneider analogized this to the mother’s behavior.) It appears that Mrs. C. has not held a job for two years, mainly stays home, watches TV and sleeps in front of the children. When she was asked why Cornelius, Jr. had not yet started to attend school at his age, she stated that it was because he needed a rubella shot and some other inoculations. Nevertheless, Mrs. C. did not explain why these inoculations had not been done in the three years since she had been notified of their necessity as a precondition to school admission.

Although there was significant contrary evidence, the Family Court seemed to be strongly influenced by the fact that Karen and Cornelius repeatedly asserted their desire to stay with their mother. As mentioned, supra, the court did strongly recommend that the respondent mother attend some sort of counseling, and that, after the counseling, the father could resubmit his petition if no change has occurred in the mother’s behavior. But the likelihood of Mrs. C. voluntarily embarking on treatment does not seem too great. Cornelius, at age seven, has yet to attend school. The mother seems to use the children as an emotional crutch and all the children may well be in danger of intellectual and social impairment. Tempus fugit.

The expert testimony at the trial here provided contradictory conclusions. The description of the respondent’s household raised serious questions concerning the environment of Mrs. C.’s home and, although unsubstantiated, it was alleged that the children were kept home from school for almost 50 days during the past year. A much more detailed investigation should be conducted into the respondent’s ability to properly raise her children. Specific inquiry should be made into the condition of her home, the reason the children were kept home from school and exactly how many days they missed. In addition, it must be ascertained whether or not the children were, indeed, sent out late at night on small errands and whether they were being unnecessarily punished by their mother during delusional "fits”. Concur—Ross, Asch and Milenas, JJ.