SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

252 

CAF 14-00048 

PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF GREGORY O. BRANDON, SR., 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

BOBBIE L. KING, RESPONDENT-APPELLANT. 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR RESPONDENT-APPELLANT.

 

Appeal from an order of the Supreme Court, Monroe County (Gail A.

Donofrio, J.), entered December 12, 2013 in a proceeding pursuant to

Family Court Act article 6. The order, inter alia, modified a prior

consent order by directing that the mother have limited supervised

visitation with the parties’ child, and otherwise continued joint

custody and primary physical residence with petitioner. 

It is hereby ORDERED that the order so appealed from is 

unanimously affirmed without costs. 

Memorandum: In this proceeding pursuant to Family Court Act

article 6, respondent mother appeals from an order that, inter alia,

modified a prior consent order by directing that the mother have

limited supervised visitation with the parties’ child, and otherwise

continued joint custody and primary physical residence with petitioner

father. The mother does not challenge Supreme Court’s determination

that there was a significant change in circumstances, and thus we

address only the issue whether the court’s custody and visitation

determination is in the child’s best interests (see Matter of Van

Court v Wadsworth, 122 AD3d 1339, 1340, lv denied 24 NY3d 916). 

Although the court “erred in failing ‘to set forth those facts

essential to its decision’ . . . , ‘the record is sufficiently

complete for us to make our own findings of fact in the interests of

judicial economy and the well-being of the child[ ]’ ” (Matter of

Williams v Tucker, 2 AD3d 1366, 1367, lv denied 2 NY3d 705; see Matter

of Mathewson v Sessler, 94 AD3d 1487, 1489, lv denied 19 NY3d 815). 

Upon our review of the relevant factors (see generally Eschbach v

Eschbach, 56 NY2d 167, 171-174; Fox v Fox, 177 AD2d 209, 210), we

conclude that it is in the child’s best interests that the father

retain primary physical residence and that the mother have limited

supervised visitation.

Here, the mother admitted that she had been on probation

following a conviction of endangering the welfare of a child for
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CAF 14-00048 

leaving the child unattended, that she smoked marihuana while on

probation, and that she was arrested for possessing marihuana after

the police responded to a disturbance that occurred when the mother

went to the father’s residence in violation of an order of protection. 

The mother also admitted that she pleaded guilty to harassment

following a “road rage” incident that resulted in a physical

altercation outside the vehicle while the child was in the back seat. 

In addition, the record establishes that the mother was unable to

maintain a stable and safe home environment inasmuch as she moved

frequently, and she resorted to heating an apartment with an open

oven. Moreover, although the mother often volunteered in the child’s

preschool classroom and visited him during lunch, school staff members

testified that the mother was disruptive and argumentative during some

of the visits, and that there were instances of inappropriate

treatment of the child. The record establishes that the father also

engaged in various forms of improper conduct, often involving

mistreatment of the mother, but we nevertheless conclude that the

mother’s behavior consistently placed the child at risk, whereas the

father has provided a more stable home environment and is better able

to provide for the child’s emotional and intellectual development (see

generally Matter of St. Pierre v Burrows, 14 AD3d 889, 891-892).

With respect to the mother’s contention that she was denied

effective assistance of counsel, we note that, “ ‘because the

potential consequences are so drastic, the Family Court Act affords

protections equivalent to the constitutional standard of effective

assistance of counsel afforded defendants in criminal proceedings’ ”

(Matter of Brown v Gandy, 125 AD3d 1389, 1390). We are unable to

review the mother’s contention to the extent that it involves matters

outside the record on appeal (see Matter of Chamas v Carino, 119 AD3d

564, 565). To the extent that the record permits review of her

contention, we conclude that the mother did not “ ‘demonstrate the

absence of strategic or other legitimate explanations’ for counsel’s

alleged shortcomings” (People v Benevento, 91 NY2d 708, 712; see

Brown, 125 AD3d at 1390-1391).

Finally, the mother’s contention that the court violated her

constitutional rights is not preserved for our review (see Matter of

Beebe v Beebe, 298 AD2d 843, 843-844) and, in any event, it lacks

merit.

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court