A., ISOBELLA, MTR. OF ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
94
CAF 14-01546
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.
IN THE MATTER OF ISOBELLA A. AND CAMERON K.
-------------------------------------------------
CATTARAUGUS COUNTY DEPARTMENT OF SOCIAL SERVICES,
PETITIONER-RESPONDENT;
MEMORANDUM AND ORDER
ANNA W., RESPONDENT-APPELLANT.
-------------------------------------------------
IN THE MATTER OF CHARLES J.S., II,
PETITIONER-RESPONDENT,
V
ANNA W., RESPONDENT-APPELLANT.
-------------------------------------------------
IN THE MATTER OF ANNA W., PETITIONER-APPELLANT,
V
CHARLES J.S., II, RESPONDENT-RESPONDENT.
-------------------------------------------------
IN THE MATTER OF SCHAVON R. MORGAN, ESQ., ON
BEHALF OF ISOBELLA A., PETITIONER-RESPONDENT,
V
ANNA W., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.
EMILY A. VELLA, SPRINGVILLE, FOR PETITIONER-RESPONDENT CHARLES J.S.,
II AND RESPONDENT-RESPONDENT.
MARY ANNE CONNELL, ATTORNEY FOR THE CHILDREN, BUFFALO.
Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered June 26, 2014 in proceedings pursuant
to Family Court Act article 10 and article 6. The order, among other
things, awarded custody of Isobella A. to petitioner-respondent
Charles J.S., II.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
-2- 94
CAF 14-01546
Memorandum: These related appeals arise from a neglect
proceeding pursuant to Family Court Act article 10 and custody
proceedings pursuant to Family Court Act article 6. In appeal No. 3,
respondent mother appeals from an order that, inter alia, adjudged
that her children Isobella A. and Cameron K. had been neglected by
her. In appeal No. 1, the mother, the respondent-petitioner therein,
appeals from an order granting custody of Isobella to petitioner-
respondent Charles J.S., II (Charles), the father of Isobella. In
appeal No. 2, the mother, the respondent-petitioner therein, appeals
from an order granting custody of Cameron to respondent Joseph K.
(Joseph), the father of Cameron.
To the extent that the mother contends in all appeals that Family
Court erred in holding a combined hearing on the petitions, that
contention is not preserved for our review (see generally Matter of
Qua’Mel W. [Niaya W.], 129 AD3d 1487, 1487; Matter of Kaylene S.
[Brauna S.], 101 AD3d 1648, 1648, lv denied 21 NY3d 852). In any
event, the proceedings were properly consolidated given “the many
common factual and legal issues” (Matter of Daniel D., 57 AD3d 444,
444, lv dismissed 12 NY3d 906; see Matter of Lebraun H. [Brenda H.],
111 AD3d 1439, 1439). In addition, to the extent that the mother
contends in all appeals that the court erred in admitting the reports
and testimony of a psychologist, that contention is also not preserved
for our review (see Qua’Mel W., 129 AD3d at 1487; Kaylene S., 101 AD3d
at 1648-1649).
We reject the mother’s contention in appeal No. 3 that there was
no basis for the finding of neglect. The evidence established that
the mother alienated the children from their fathers, with the result
that Isobella was confused whether Charles was her real father. The
mother also interfered with the fathers’ visitation with the children
and made false allegations against the fathers or their significant
others. Isobella was diagnosed with adjustment disorder and had poor
behavior in school as a result of the mother’s conduct. The evidence
also established that the mother forced Cameron to lie about Joseph
and videotaped him stating those lies. The court properly determined
that the mother’s conduct impaired the children’s emotional condition
or placed them in imminent danger of such impairment (see Family Ct
Act § 1012 [f] [i] [B]; Matter of Ceanna B. [Thawanda C.], 105 AD3d
1044, 1044, lv denied 21 NY3d 860; Matter of Kevin M.H. [Kenneth H.],
76 AD3d 1015, 1016, lv denied 15 NY3d 715).
We reject the mother’s contention in appeal Nos. 1 and 2 that the
determinations to grant the fathers sole custody of the children do
not have a sound and substantial basis in the record. A court’s
determination following a hearing that the best interests of the child
would be served by such an award is entitled to great deference (see
Eschbach v Eschbach, 56 NY2d 167, 173), particularly in view of the
hearing court’s superior ability to evaluate the character and
crediblity of the witnesses (see Matter of Howden v Keeler, 85 AD3d
1561, 1562; Matter of Paul C. v Tracy C., 209 AD2d 955, 956). We will
not disturb the determinations herein inasmuch as the record
establishes that they are the product of the court’s “careful weighing
of [the] appropriate factors” (Matter of Pinkerton v Pensyl, 305 AD2d
-3- 94
CAF 14-01546
1113, 1114), and they have a sound and substantial basis in the record
(see Matter of Tarrant v Ostrowski, 96 AD3d 1580, 1582, lv denied 20
NY3d 855).
The mother’s contention in appeal Nos. 1 and 2 that the court
erred in admitting the hearsay statements of the children is not
preserved for our review inasmuch as she did not object to the
admission of the psychologist’s reports that contained those
statements or the vast majority of the hearsay statements at trial
(see Matter of Oravec v Oravec, 89 AD3d 1475, 1476; Matter of Thomas
M.F. v Lori A.A., 63 AD3d 1667, 1667-1668, lv denied 13 NY3d 703).
Indeed, we note that she even elicited such statements herself. In
any event, that contention is without merit because “[i]t is well
settled that there is an exception to the hearsay rule in custody
cases involving allegations of abuse and neglect of a child, based on
the Legislature’s intent to protect children from abuse and neglect as
evidenced in Family [Court] Act § 1046 (a) (vi) . . . where . . . the
statements are corroborated” (Thomas M.F., 63 AD3d at 1668 [internal
quotation marks omitted]). Here, some of the statements of the
children were corroborated and, to the extent that they were not, any
error in allowing them in evidence is harmless because the evidence is
otherwise sufficient to support the court’s determination (see Matter
of Higgins v Higgins, 128 AD3d 1396, 1397).
The mother failed to preserve for our review her contention in
appeal No. 1 that the Attorney for the Child (AFC) for Isobella should
not have substituted her judgment for that of the child or advocated
against her wishes (see Matter of Mason v Mason, 103 AD3d 1207, 1207-
1208). In any event, that contention is without merit inasmuch as
Isobella was five and six years old at the time of these proceedings,
and the evidence showed that “the child lack[ed] the capacity for
knowing, voluntary and considered judgment, or that following the
child’s wishes [was] likely to result in a substantial risk of
imminent, serious harm to the child” (id. at 1208 [internal quotation
marks omitted]). Indeed, the evidence establishes that, if the AFC
followed the child’s wishes, that “would be tantamount to severing her
relationship with her father” (Matter of Viscuso v Viscuso, 129 AD3d
1679, 1680 [internal quotation marks omitted]).
Entered: February 5, 2016 Frances E. Cafarell
Clerk of the Court