State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 11, 2015 518717 

_________________________________

In the Matter of PATRICK EE. 

et al.,

Respondents,

v

BRENDA DD.,

Appellant,

and

CORTLAND COUNTY DEPARTMENT OF

SOCIAL SERVICES,

Respondent.

(Proceeding No. 1.) MEMORANDUM AND ORDER

_________________________________

In the Matter of BRENDA DD.,

Appellant,

v

PATRICK EE. et al.,

Respondents.

(Proceeding No. 2.)

(And Another Related Proceeding.)

_________________________________

Calendar Date: April 21, 2015

Before: Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

__________

Lisa K. Miller, McGraw, for appellant.

Margaret McCarthy, Ithaca, for Patrick EE. and another,

respondents.
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Natalie B. Miner, Homer, attorney for the children.

__________

McCarthy, J.

Appeal from a decision and an order of the Family Court of

Cortland County (Campbell, J.), entered January 6, 2014 and March

21, 2014, which, among other things, granted petitioners'

application, in proceeding No. 1 pursuant to Family Ct Act

article 6, for modification of a prior order of visitation.

Patrick EE. (hereinafter the father) and Brenda DD.

(hereinafter the mother) are the parents of a daughter (born in

2000) and a son (born in 2001). In 2012, after the children had

twice been found to be neglected by the mother (see Matter of

Gloria DD. [Brenda DD.], 99 AD3d 1044, 1044-1045 [2012]), the

father and the stepmother petitioned for custody and Family Court

ordered such custody to them. That same order devised a

visitation schedule for the mother whereby she would receive,

among other things, weekly supervised visitation beginning in

July 2012, followed by weekly unsupervised visitation commencing

in December 2012. 

In February 2013, after three unfounded reports were made

to Child Protective Services (hereinafter CPS) regarding the

children, the father and the stepmother commenced proceeding No.

1 seeking a modification of the visitation arrangement so as to

have such visitation either supervised or terminated. In

response, the mother commenced proceeding No. 2 and another

proceeding, eventually alleging a violation of the July 2012

order, stemming in part from the children's unsuccessful

discharge from counseling, and seeking unsupervised visitation

and access to the children's school, medical and counseling

records. Following fact-finding and Lincoln hearings, Family

Court issued a decision and then an order that awarded sole

custody of the children to the father and the stepmother and

suspended the mother's visitation pending a further order of the

court. The mother now appeals from both the decision and the
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order.1

There is a sound and substantial basis for Family Court's

determination to suspend the mother's visitation. To modify an

order of visitation or custody, a party must demonstrate a change

in circumstances necessitating a modification in order to ensure

the best interests of the children (see Matter of Chris X. v

Jeanette Y., 124 AD3d 1013, 1014 [2015]; Matter of Ford v Baldi,

123 AD3d 1399, 1400 [2014]). Relevant factors in determining the

propriety of a custody modification include "'maintaining

stability for the child[ren], the respective home environments,

length of the current custody arrangement, each parent's relative

fitness and past parenting performance, and willingness to foster

a healthy relationship with the other parent'" (Matter of Chris

X. v Jeanette Y., 124 AD3d at 1014, quoting Matter of Joshua UU.

v Martha VV., 118 AD3d 1051, 1052 [2014]). A petitioner seeking

the termination of a noncustodial parent's visitation must

overcome the presumption that the children's best interests are

furthered by such visitation by "showing, by a preponderance of

the evidence, that visitation would be harmful to the child[ren]"

(Matter of Granger v Misercola, 21 NY3d 86, 92 [2013]; see Matter

of Owens v Chamorro, 114 AD3d 1037, 1039 [2014]; Matter of

VanBuren v Assenza, 110 AD3d 1284, 1284 [2013]).

Here, there was sufficient evidence to allow for a

reasonable inference that the mother had made or caused to be

made the unfounded CPS reports regarding the father and the

stepmother. Those reports included allegations that the father

sexually molested the daughter, that the father and stepmother

directed racist and homophobic remarks at the son, that they

failed to provide proper food to the children, that the

stepmother had struck the daughter in the head and caused her ear

to bleed, that the stepmother had threatened to poison the

children and that the stepmother has carved an initial into the

son's hair and informed him that it represented a homophobic slur

1 The mother's appeal from the decision entered January 6,

2014 must be dismissed, as a decision is not an appealable paper

(see CPLR 5512 [a]; Matter of Clary v McIntosh, 117 AD3d 1285,

1285 n [2014]).
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that she applied to him. The evidence established that these

unfounded reports caused the children to be removed from their

classrooms in school in order to be interviewed regarding the

allegations. The investigation particularly caused stress for

the daughter, who indicated that she was upset for being singled

out and because of the inaccuracy of the CPS reports. 

Further evidence established that the mother had cancelled

visitation with the children on short notice and sometimes for

inadequate reasons. In addition, the mother engaged in

inappropriate conversation in front of the children during

visitation, including sharing her theories that respondent

Cortland County Department of Social Services (hereinafter DSS)

was corrupt and that it would soon remove the stepmother's

biological children from the stepmother's care. Further evidence

showed that, while the mother visited with the children, she had

made numerous derogatory remarks in front of them regarding the

father and the stepmother. On some occasions, the children

refused to go to the visits with the mother. Notably, in terms

of the effect that such turmoil had on the children, the daughter

overturned and destroyed items in her bedroom on the day before

the commencement of the fact-finding hearing and, on the day of

that hearing, the son was kicked out of school after instigating

a fight. 

Regarding the mother's fitness as a parent, the evidence

established that the mother had been diagnosed with major

depressive disorder, panic disorder without agoraphobia,

posttraumatic stress disorder and borderline personality

disorder. Although there was evidence introduced that the mother

had made certain progress in therapy regarding these mental

health issues, other evidence established that she continued to

evince an unwillingness to accept her prior neglect of the

children. For example, the mother admitted that she had recently

signed a petition on a social media website requesting the

Governor to have local DSS employees arrested, declaring in her

comment, along with such signature, that DSS had stolen her

children. 

Although the mother disputed some of the aforementioned

evidence, Family Court found the mother's testimony as to such
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denials to be incredible. Otherwise, the evidence supports

Family Court's conclusion that, due to the mother's mental health

issues and her potentially related hostility toward relevant

child welfare authorities, the father and the stepmother,

supervised visitation was unlikely to succeed in mitigating or

eliminating the mother's infliction of emotional and

psychological harm upon the children. Further, despite the lack

of any other evidence that reasonably supports the mother's

contention, she openly maintained the position that, among other

things, the father had sexually abused the daughter and that both

he and the stepmother had used homophobic and racist slurs to

refer to the son. Considering this evidence, and granting

appropriate deference to Family Court's credibility assessment,

there is a sound and substantial basis in the record for Family

Court's determination that there was a change in circumstance

that warranted suspending the mother's visitation because such

visitation would be harmful to the children and, therefore, not

in their best interests (see Matter of Ildefonso v Brooker, 94

AD3d 1344, 1345 [2012]; Matter of Jones v McMore, 37 AD3d 1031,

1032 [2007]). 

Further, we are not persuaded that consideration of the

mother's violation petition regarding the 2012 order merits any

different result. "'[T]he mother was required to show that the

father's [and/or the stepmother's] actions or failure to act

defeated, impaired, impeded or prejudiced a right of the mother

and that [such] alleged violation[s] [were] willful'" (Matter of

Cobane v Cobane, 119 AD3d 995, 996 [2014], quoting Matter of

Constantine v Hopkins, 101 AD3d 1190, 1191 [2012]). Although the

evidence bore out the mother's factual allegation that the

children had been unsuccessfully discharged from counseling, the

stepmother explained that such discharge was the result of a

change in the children's health insurance coverage and that, as a

result, she and the father could no longer financially afford to

provide such counseling. Family Court explicitly credited the

stepmother's account and concluded that the discharge from

counseling was not willful. Giving deference to that credibility

determination, Supreme Court did not err in its dismissal of the

mother's violation petition (see Matter of Cobane v Cobane, 119

AD3d at 996). 
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Finally, the mother's contention that Family Court's bias

permeated the proceedings, depriving her of due process, is

unpreserved given that she did not object on these grounds or

move for Family Court's recusal (see Matter of Bowe v Bowe, 124

AD3d 645, 646 [2015]; Matter of Kimberly Z. [Jason Z.], 88 AD3d

1181, 1184 [2011]). The mother's remaining contentions are

unpreserved and/or without merit. 

Lahtinen, J.P., Garry and Rose, JJ., concur.

ORDERED that the appeal from the decision entered January

6, 2014 is dismissed, without costs. 

ORDERED that the order entered March 21, 2014 is affirmed,

without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court