Matter of Angela F. v. Gail WW. , 46 N.Y.S.3d 709 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 26, 2017 521560
________________________________
In the Matter of ANGELA F.,
Appellant,
v MEMORANDUM AND ORDER
GAIL WW. et al.,
Respondents.
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Calendar Date: January 9, 2017
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.
__________
Susan Patnode, Rural Law Center of New York, Castleton
(Cynthia Feathers of counsel), for appellant.
Reginald Bedell, Elizabethtown, attorney for the child.
__________
Clark, J.
Appeal from an order of the Family Court of St. Lawrence
County (Morris, J.), entered August 6, 2015, which dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of visitation.
The underlying facts are set forth more fully in our
decision on an earlier appeal (113 AD3d 889 [2014]). As relevant
here, petitioner (hereinafter the mother) and respondent Michael
WW. (hereinafter the father) are the parents of a daughter (born
in 2001). In April 2010, Family Court awarded joint legal
custody of the child to the mother, the father and respondent
Gail WW. (hereinafter the paternal grandmother), with the
paternal grandmother having physical custody and the mother
having visitation as set forth in orders in then pending neglect
proceedings, which provided for weekly supervised visits. In
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2011, after the relevant Family Ct Act article 10 petitions had
been dismissed, the mother commenced this Family Ct Act article 6
proceeding seeking a modification of the April 2010 order by
awarding her weekly visitation with the child and approving her
husband as a visitation supervisor. In July 2012, following a
hearing, Family Court modified the April 2010 order by, among
other things, directing that the mother have a two-hour period of
visitation with the child "a minimum of one time each month" and
that the paternal grandmother, or such other person designated by
the paternal grandmother, supervise the visits.
In January 2014, upon the mother's appeal, this Court
modified Family Court's order, concluding that, although the
requisite change in circumstances had been established, a sound
and substantial basis did not exist in the record "to reduce the
mother's visitation from one supervised visit per week as existed
under the prior orders to as little as one supervised two-hour
visit per month" or to deny the mother's request for approval of
her husband as a visitation supervisor, and remitted the matter
for further proceedings (id. at 890-891). This Court also
indicated that, while the determination whether to conduct a
Lincoln hearing was within the discretion of Family Court,
"hearing from the child in camera, while not dispositive, could
be an insightful and useful factor in determining the extent to
which her mother's visitation is in the child's best interests"
(id. at 890). Upon remittal, Family Court conducted a hearing on
June 20, 2014 solely on the issue of whether the mother's husband
was an appropriate visitation supervisor and subsequently held a
Lincoln hearing with the child in September 2014. Over 13 months
later, in August 2015, after having rendered a bench decision in
June 2015,1 Family Court directed that its July 2012 order be
"continued in full force and effect without modification." The
1
In its June 2015 bench decision, Family Court also
resolved other pending petitions brought by the mother with
respect to three of her other children. The mother appealed from
the orders resolving those other petitions and such appeals are
decided herewith (Matter of Angela F. v St. Lawrence County Dept.
of Social Servs., ___ AD3d ___ [decided herewith]; Matter of
Abigail QQ. [Angela F.], ___ AD3d ___ [decided herewith]).
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mother appeals.2
As recognized by the mother, upon remittal, Family Court
failed to address a fundamental aspect of this Court's January
2014 order – namely, that a sound and substantial basis did not
exist in the record to support a reduction of the supervised
visitation that the mother was afforded under the relevant prior
orders. Family Court made no acknowledgment – on the record or
in the order appealed from – of this aspect of this Court's
January 2014 holding. At the June 20, 2014 hearing, Family Court
expressly restricted the proof to the issue of whether the
mother's husband could serve as a visitation supervisor and
repeatedly cautioned the mother when she, proceeding pro se,
strayed from this issue.3 Furthermore, aside from the child's
testimony at the Lincoln hearing, Family Court received no
further proof as to the extent of visitation that should be
afforded to the mother. The Lincoln hearing testimony, standing
alone, particularly given the passage of time since Family
Court's July 2012 order, was insufficient to cure the
deficiencies – identified in this Court's prior order – in the
2
While the mother's notice of appeal purports to appeal
from Family Court's June 2015 bench decision, from which no
appeal lies (see CPLR 5512 [a]; Family Ct Act § 1112), we will,
in the exercise of our discretion, view it as an appeal from
Family Court's August 2015 order (see CPLR 5520 [c]; Matter of
Joshua UU. [Jessica XX.–Eugene LL.], 81 AD3d 1096, 1097 n 2
[2011]; Matter of Gunthorpe v Cathey, 52 AD3d 907, 908 n [2008]).
Additionally, although the St. Lawrence County Department of
Social Services submitted a brief on appeal, it was not a party
in the underlying Family Ct Act article 6 proceeding, nor did it
seek to intervene in the proceeding as an interested party. As
such, we have not considered the Department's brief on appeal.
3
We also note that Family Court's statement, in the order
appealed from, that the mother "failed to show by a preponderance
of the evidence . . . that the [July 2012 order] should be
changed" reflects the court's inherent misunderstanding of this
Court's January 2014 order.
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proof relied on by Family Court to support its July 2012
determination to reduce the mother's visitation (113 AD3d at
890). Accordingly, a sound and substantial basis did not exist
in the record to support Family Court's adherence to its July
2012 order reducing the mother's visitation (see id.). As such,
the matter must be remitted for a new hearing to determine the
extent to which the mother should be afforded visitation, this
time before a different judge (see Matter of Angela F. v St.
Lawrence County Dept. of Social Servs., ___ AD3d ___ [decided
herewith]).
As to Family Court's determination that the mother's
husband could not serve as a visitation supervisor, we similarly
find that such determination was not supported by a sound and
substantial basis in the record. The record evidence
demonstrated that the mother's husband had been approved as a
supervisor by the St. Lawrence Department of Social Services, had
previously supervised the mother's contact with their child
without incident and was willing and able to supervise the
mother's visitation with the subject child. The mother's husband
testified that he had been present at 10 to 20 of the mother's
visits with the child, in part so that he could facilitate a bond
between the child and her half sister. He acknowledged that, on
two occasions, the mother made inappropriate comments to the
child regarding ongoing court proceedings. However, the husband
and the paternal grandmother consistently testified that the
husband voiced his opinion about the inappropriateness of the
comments after the paternal grandmother spoke up. While the
paternal grandmother criticized the husband for not raising the
issue first, the mother's husband explained that he did not
intervene first because he, unlike the paternal grandmother, was
not a designated supervisor of the child. Family Court
improperly concluded, without any basis in the record, that the
husband could not be relied upon to protect the child from the
mother. Upon consideration of the foregoing, Family Court's
determination to deny the mother's request for approval of her
husband as a visitation supervisor lacks a sound and substantial
basis in the record (see 113 AD3d at 890-891; compare Matter of
Wormuth v Mathis, 58 AD3d 923, 924 [2009]). Accordingly, the
husband is deemed to be a designated supervisor of the child.
Pending a determination upon the remitted issue, the mother
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shall, on a temporary basis, have visitation with the child as
set forth in the July 2012 order, except that such visitation may
now be supervised by the husband.
McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as adhered to the reduction
of petitioner's visitation to a minimum of one time per month and
denied petitioner's request to have her husband supervise
visitation; matter remitted to the Family Court of St. Lawrence
County for further proceedings not inconsistent with this Court's
decision before a different judge, said proceedings to be
commenced with 30 days of the date of this decision and, pending
said further proceedings, petitioner shall have visitation as
specifically set forth herein; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court