        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

957
CAF 09-01654
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF STANLEY S. GRYBOSKY,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAWN M. RIORDAN, RESPONDENT-APPELLANT.


ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT-APPELLANT.

MARY G. CARNEY, BUFFALO, FOR PETITIONER-RESPONDENT.

JEFFREY C. MANNILLO, ATTORNEY FOR THE CHILD, BUFFALO, FOR ABIGAIL G.


     Appeal from an order of the Family Court, Erie County (E.
Jeannette Ogden, A.J.), entered July 28, 2009 in a proceeding pursuant
to Family Court Act article 6. The order, inter alia, granted sole
custody of the parties’ child to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner father commenced this proceeding seeking,
inter alia, to modify the prior consent order awarding sole custody to
respondent mother by awarding him sole custody of the parties’ child,
with visitation with the mother. Family Court granted the petition,
and we affirm. Contrary to the mother’s contention, we conclude that
the father met his burden of establishing a change in circumstances
sufficient to warrant an inquiry into whether custody should be
modified (see Matter of Maher v Maher, 1 AD3d 987, 988). A single
incident of misconduct or neglect, if sufficiently serious, may
establish a change in circumstances warranting a review of an existing
custody arrangement (see e.g. Matter of Bell v Raymond, 67 AD3d 1410;
Matter of Samuel v Samuel, 64 AD3d 920, 921). Here, the father’s
modification petition was prompted by an incident in which the mother
left their child, who was then six years old, alone in a casino hotel
room for nearly three hours while the mother gambled in the casino. A
hotel patron found the child crying in the hallway and alerted casino
security, which then called the police. As a result of the incident,
the child missed her first day of first grade, the mother was arrested
for endangering the welfare of a child, and Child Protective Services
(CPS) issued an indicated report for inadequate guardianship and lack
of supervision. In addition, evidence was presented that, after the
casino incident, the mother and the child stayed over at the home of a
man not known by the child. The mother and the man went out for
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                                                         CAF 09-01654

drinks, leaving the child in the care of the man’s daughters. In
addition, the father, the stepmother, and a social worker testified
that the child exhibited poor hygiene when in the care of her mother,
including wearing unclean clothes and exuding an unpleasant odor. In
addition, during the time in which the mother had sole custody of the
child, the child’s teeth decayed to the point that she required 11
extractions and the placement of stainless steel crowns. We thus
conclude that the casino incident, coupled with the other instances of
inappropriate and neglectful behavior on the part of the mother,
established the requisite change in circumstances (see Maher, 1 AD3d
at 988).

     We further conclude that, contrary to the contention of the
mother, there is a sound and substantial basis in the record for the
court’s determination that an award of sole custody to the father is
in the best interests of the child (see Matter of Deborah E.C. v Shawn
K., 63 AD3d 1724, 1725, lv denied 13 NY3d 710; Matter of Jeremy J.A. v
Carley A., 48 AD3d 1035). Here, there is ample support in the record
for the court’s conclusion that, as between the two parents, the
father is better able to provide for the child’s financial,
educational and emotional needs. The record reflects that the mother
has five children, including the subject child. The mother testified
that she is unemployed and that her only income comes from
Supplemental Security Income benefits, child support from the father
and an ex-husband, and food stamps. Nonetheless, the mother
acknowledged that she frequents a casino “about once a month,” and she
testified that she accumulated sufficient “slot dollars” to earn a
free hotel room approximately eight times in the last five years.
Although the mother sporadically attends Gamblers Anonymous, she did
not seek individual counseling to address her admitted gambling
addiction. The record further reflects that the mother failed to
attend conferences at the child’s school or a co-parenting class, as
ordered by the court.

     By contrast, the evidence presented at the hearing established
that both the father and the stepmother are steadily employed, have no
criminal record, are not the subjects of any CPS indicated reports,
and completed a recommended co-parenting course. The social worker
testified that, when the father and stepmother prepared the child for
counseling sessions, she was appropriately dressed and groomed. Also
according to the testimony of the social worker, the child is
“[e]xtremely” close to the stepmother, and the stepmother testified
that she attends parent-teacher conferences, lunches, and open houses
at the child’s school. We thus see no basis to disturb the
determination of the court with respect to modification of the
existing custody arrangement (see generally Matter of Garland v
Goodwin, 13 AD3d 1059, 1059-1060).

     Finally, the mother waived her contention that the court erred in
failing to mention in its decision an alleged CPS indicated report
concerning the father issued after the close of proof but prior to
issuance of the court’s decision. The record reflects that the court
advised the mother that, if she wanted the CPS report included in the
record and considered by the court, the mother had to obtain a
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                                                         CAF 09-01654

stipulation to that effect or, alternatively, seek court intervention
before a specified date. There is no indication, however, that the
mother prepared a written stipulation to include the CPS report in the
record or that she requested a hearing on the ground that the father
or the Attorney for the Child refused to so stipulate. The mother
thus waived any contention that the CPS report should have been
included in the record or considered by the court in rendering its
custody determination (see generally Matter of Iocovozzi v Herkimer
County Bd. of Elections, 76 AD3d 797, 798; Reed v Fraser, 52 AD3d
1323, 1324, lv denied 11 NY3d 714; Matter of Dauria v Dauria, 286 AD2d
879, 879-880).

     In any event, there is no merit to the mother’s contention.
Initially, we note that it is unclear from the record whether such an
indicated report exists, as the mother claims. Even assuming,
arguendo, that there is such an indicated report, we further note
that, although the report was not offered in evidence and no testimony
was offered with respect to it inasmuch as it was allegedly issued
after the close of proof, the mother did not seek to reopen the
hearing to address the report. Thus, any such report was outside the
record before the court, and the court properly declined to consider
it in making its custody determination (cf. Matter of Zwack v Kosier,
61 AD3d 1020, 1022-1023, lv denied 13 NY3d 702; Klembczyk v DiNardo,
265 AD2d 934).




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
