Matter of Velez v. White , 25 N.Y.S.3d 733 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 25, 2016 520484
________________________________
In the Matter of DIANE VELEZ,
Appellant,
v
JOHN R. WHITE et al.,
Respondents,
et al.,
Respondents.
(Proceeding No. 1.)
_________________________________ MEMORANDUM AND ORDER
In the Matter of DIANE VELEZ,
Appellant,
v
POLLY WHITE et al.,
Respondents.
(Proceeding No. 2.)
________________________________
Calendar Date: January 7, 2016
Before: Peters, P.J., Garry, Rose and Lynch, JJ.
__________
Dennis B. Laughlin, Cherry Valley, for appellant.
Guttman & Reiter, Ithaca (Charles Guttman of counsel), for
respondents.
Robin Abrahamson Masson, Ithaca, attorney for the child.
__________
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Garry, J.
Appeal from an order of the Family Court of Schuyler County
(Morris, J.), entered January 23, 2015, which, among other
things, dismissed petitioner's application, in proceeding No. 2
pursuant to Family Ct Act article 6, for visitation with the
subject child.
Petitioner (hereinafter the grandmother) is the maternal
grandmother of a child (born in 2006) whose parents are
respondent Joseph D. White (hereinafter the father) and
respondent Hillary Anne Sepulveda-Taylor (hereinafter the
mother). The grandmother had de facto physical custody of the
child for approximately two years, until child protective
authorities removed the child in May 2013. Thereafter, neglect
proceedings were commenced against the grandmother. Family Court
granted temporary custody pursuant to Family Ct Act article 10 to
the child's paternal grandparents, respondent John R. White and
respondent Polly White, and issued a temporary order of
protection directing the grandmother to stay away from the child
and refrain from communication or contact with her. In December
2013, the court issued an order of fact-finding and disposition
that, among other things, adjudicated the child to be neglected,
granted supervised visitation to the grandmother and otherwise
continued the order of protection. Apparently, little or no
visitation occurred, as the parties were not able to agree upon
an appropriate supervisor.
In February 2014, the grandmother commenced the first of
these proceedings seeking custody of the child. Shortly
thereafter, in a separate proceeding pursuant to Family Ct Act
article 6 to which the grandmother was not a party, Family Court
awarded custody of the child to the paternal grandparents upon
the consent of the mother and father. The grandmother filed an
amended petition seeking visitation, and then clarified that she
was no longer seeking custody. Following a hearing, the court
dismissed the grandmother's petitions, and she appeals.
In determining whether to award visitation to a grandparent
over the objections of a child's parents or custodians, a court
must first determine whether the grandparent has standing, and,
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if so, then must decide whether visitation is in the child's best
interests (see Domestic Relations Law § 72 [1]; Matter of E.S. v
P.D., 8 NY3d 150, 156-157 [2007]; Matter of Rubel v Wilson, 111
AD3d 1065, 1067 [2013]). Here, the threshold determination that
the grandmother had standing, based upon the two-year period in
which she had de facto custody of the child, is not in dispute.
The grandmother contends that Family Court erred in the second
step of the analysis, in determining that visitation was not in
the child's best interests. We find no error, and affirm.
The most significant consideration in rendering this
determination is the nature and quality of the relationship
between the grandparent and the child (see Matter of Burton v
Barrett, 104 AD3d 1084, 1087 [2013]; Matter of Stellone v Kelly,
45 AD3d 1202, 1204 [2007]). Other important factors include the
grandparent's ability to nurture the child, his or her attitude
towards the child's custodians, the reasons for the objections to
visitation, the child's preference and the position taken by the
attorney for the child (see Matter of Articolo v Grasso, 132 AD3d
1193, 1194 [2015]; Matter of Layton v Grace, 129 AD3d 1147, 1149
[2015]).
Here, as to the relationship between the child and the
grandmother, the record supports Family Court's conclusions that
the child had unresolved mental health issues related to the
grandmother and that visitation posed a threat of emotional harm
to the child. Specifically, the child's therapist testified that
she diagnosed the child with posttraumatic stress disorder
arising from traumatic events that occurred while the child was
residing with the grandmother, including repeated exposure to
domestic violence as well as possible incidents of inappropriate
sexual conduct in the child's presence. The therapist testified
that the child was further traumatized by dolls in the
grandmother's home that, according to the child, were "evil" and
were used to frighten the child. The therapist said the child
remained irrationally fearful of dolls, so that the therapist had
to hide dolls in her office during the child's counseling
sessions. She stated that the child was showing improvement in
therapy and recommended that no visitation occur until after the
child had progressed further. Other witnesses, including the
mother and paternal grandparents, confirmed that the child had
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frequently been exposed to verbal and physical altercations in
the grandmother's home, that there were indications that she may
have been exposed to sexual conduct, and that she was frightened
of the grandmother's dolls. There was testimony that the
grandmother had told the child that these dolls had spirits, and
that the child believed that they haunted her at night.
With regard to the grandmother's ability to nurture the
child, there was considerable testimony supporting Family Court's
determination that the grandmother failed to understand the
child's emotional needs. For example, although the grandmother
acknowledged that the child had been exposed to domestic violence
in her care – including an incident in which the child, then six
years old, tried to separate two fighting adult men – the
grandmother stated that she did not believe the child had
experienced any trauma in her care, other than the removal from
her home. There was also testimony describing the grandmother's
difficulties in maintaining successful relationships and
complying with the law. The grandmother described her troubled
relationships with the child's mother and father, and
acknowledged that she had recently pleaded guilty to petit
larceny arising from a theft of cash from her ex-husband,
although she denied that she had actually committed the theft.
Family Court further found that the grandmother had knowingly
violated the order of protection by taking the child to visit
relatives in another county; during that visit, the child was
again exposed to an incident of domestic violence, in which
police were called. The mother testified that the grandmother
had threatened that she would cause legal problems for the mother
if the mother did not testify in favor of visitation for the
grandmother, and the court found that making such threats was
part of a pattern of behavior by the grandmother. As for the
child's wishes, her therapist and a child protective caseworker
testified that the child had mixed feelings, stating that she
wanted some contact with the grandmother but did not want to stay
overnight or have unsupervised contact. The attorneys for the
child at the hearing and upon appeal both took the position that
visitation with the grandmother would not be in the child's best
interests.
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The grandmother testified on her own behalf, describing
her relationship with the child as "very good." She acknowledged
that the child had been exposed to domestic violence in her home
and that she collected unusual-appearing dolls as part of her
general interest in paranormal activity, but denied that the
child had been frightened by the dolls or otherwise traumatized
while in her care, or that the child had ever been exposed to
sexual activity. The grandmother's testimony revealed open
hostility toward the paternal grandparents, who had custody of
the child. She acknowledged having once called a child
protective hotline to report alleged violations by the paternal
grandparents because she was frustrated at not having visits with
the child; she believed that it was the responsibility of the
paternal grandparents to identify an appropriate supervisor for
her visits and to provide transportation.
Upon review, the record clearly reveals the grandmother's
lack of insight into the child's needs and the reasons for her
removal. We thus find a sound and substantial basis in the
record for Family Court's determination that visitation would not
be in the child's best interests (see Matter of Albertina C. v
Administration for Children's Servs., 125 AD3d 483, 484 [2015],
lv denied 25 NY3d 906 [2015]; Matter of Pinsky v Botnick, 105
AD3d 852, 855 [2013]; Matter of Carolyn S. v Tompkins County
Dept. of Social Servs., 80 AD3d 1087, 1091 [2011]; Matter of
Wenskoski v Wenskoski, 266 AD2d 762, 763-764 [1999]).
Peters, P.J., Rose and Lynch, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court