                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521206
________________________________

In the Matter of O'DALE UU.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LISA UU.,
                    Appellant.
________________________________


Calendar Date:   March 24, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


     Ted J. Stein, Woodstock, for appellant.

     Daniel Gartenstein, Kingston, for respondent.

     Betty J. Potenza, Highland, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Ulster County
(Mizel, J.), entered May 27, 2015, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of a son (born
in 2005). In May 2007, the parties entered into an order on
consent, pursuant to the terms of which they were awarded joint
legal custody of the child with primary physical custody to the
mother and visitation to the father "as the parties may agree."
This arrangement proved to be workable until the fall of 2013
when the child began exhibiting behavioral problems –
characterized by the mother as "meltdowns" – wherein the child
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would become rebellious and refuse to listen to her. The mother
initially sought the father's assistance during these incidents,
in response to which the father would go to the mother's
residence and intervene. Subsequently, however, the mother began
giving the child Benadryl – an antihistamine – "to help him fall
asleep." By her own admission, the mother gave the child two or
three times the recommended dosage of this medication – without a
physician's approval and without the child displaying any
symptoms that the drug was designed to treat – approximately
"three or four times a week" over the course of three months.

      After observing the child in what he described as a zombie-
like state, the father commenced this proceeding in December 2013
seeking sole custody. Shortly thereafter, the Ulster County
Department of Social Services (hereinafter DSS) requested an
emergency removal hearing and filed a neglect petition against
the mother. The child was placed in the father's custody and a
temporary order of protection was entered precluding the mother
from having any visitation with the child except under the
supervision of DSS.1 In May 2014, the mother entered an
admission with respect to the neglect petition, and the matter
was adjourned for a dispositional hearing.

      In January 2015, the parties convened for a dispositional
hearing on the neglect petition and a fact-finding hearing on the
father's custody petition. At the conclusion of the
dispositional phase of the proceeding, the mother was placed
under the supervision of DSS for a period of six months, and the
child was to remain with the father pending the outcome of the
custody hearing. Following a three-day fact-finding hearing and
a Lincoln hearing, Family Court awarded the father sole legal and
physical custody of the child and granted the mother visitation
on alternate weekends from noon on Saturday until 4:00 p.m. on
Sunday, together with such further times as the parties could
agree. The mother now appeals, contending that Family Court's
custody determination lacks a sound and substantial basis in the


    1
        The temporary order of protection was extended on
multiple occasions, and the child has remained in the father's
custody since December 2013.
                              -3-                521206

record.

      As a starting point, there is no question that the finding
of neglect against the mother – based upon her admission that she
repeatedly "drugged" her child with over-the-counter medication,
for no medical purpose and in a dosage far exceeding what was
recommended for the child's age, over the course of three months
– was more than sufficient to meet the father's initial burden of
demonstrating a change in circumstances to warrant an inquiry
into whether the best interests of the child would be served by
modifying the existing custody arrangement (see Matter of Ze'Nya
G. [Nina W.], 126 AD3d 566, 566 [2015]; Matter of Christy S. v
Phonesavanh S., 108 AD3d 1207, 1208 [2013]; Matter of Mark RR. v
Billie RR., 95 AD3d 1602, 1602-1603 [2012]). Relevant factors to
consider in the best interests analysis include, among other
things, "each parent's ability to furnish and maintain a suitable
and stable home environment for the child, past performance,
relative fitness, ability to guide and provide for the child's
overall well-being and willingness to foster a positive
relationship between the child and the other parent" (Matter of
Zahuranec v Zahuranec, 132 AD3d 1175, 1176 [2015] [internal
quotation marks and citations omitted]; accord Matter of Lodge v
Lodge, 127 AD3d 1521, 1524 [2015]; see Matter of Tod ZZ. v Paula
ZZ., 113 AD3d 1005, 1006 [2014]).

      While the record reflects that, prior to December 2013, the
mother was the child's primary caregiver, the record also makes
clear that the father was a consistent presence in the child's
life. As to financial resources, the mother and father each were
employed at the time of the hearing and testified as to their
respective abilities to accommodate the child's schedule. No
issues were raised with respect to the suitability of either
parent's physical residence and, during the periods of time that
the child was residing in the mother's and the father's
respective households, it appears that each was involved in the
child's schooling and made appropriate efforts to respond to any
academic concerns.

      That said, there is no question that the mother's actions
here demonstrated a flawed understanding of her role as a parent
and evidenced a serious lack of judgment with respect to her
                               -4-                521206

child's health, safety and overall well-being. Although the
mother insisted that she did not drug the child in order to
control his rebellious behavior and assured Family Court that she
had learned her lesson in this regard, the fact remains that,
instead of consulting with the child's physician regarding the
child's alleged difficulties in falling asleep, the mother
repeatedly gave her child medication – for no medical purpose and
well in excess of the recommended dosage – over a period of
months and until such time as the child was removed from her care
by DSS. Such behavior hardly qualifies as an isolated or
transient event, and the mother's further difficulties in
managing the child's behavior – as evidenced by the number of
occasions upon which the father admittedly was called to
intervene and assist the mother in getting the child to perform
daily tasks, such as showering or brushing his teeth – are well-
documented in the record.2 Finally, although the father did not
tender any medical proof on this point, he did testify that the
child was underweight while living with the mother and described
his efforts to obtain counseling for the child after the child
displayed serious behavioral issues, such as pulling out his hair
and threatening to harm himself. Accordingly, notwithstanding
the mother's compliance with DSS's directives, we conclude – upon
due consideration of all the relevant factors – that the father
is more capable of providing the child with a safe, secure and
stable environment and discern no basis upon which to disturb
Family Court's resolution of the custody issue.3

      As to visitation, "[i]nasmuch as our authority in custody
and visitation matters is as broad as that of Family Court and


     2
        On one occasion, when the child "was having a really bad
meltdown" and the mother was unable to reach the father, she
contacted local law enforcement for assistance.
     3
        Although the parties' relationship does not appear to be
marred by the level of combativeness and acrimony that typically
is associated with the denial of an award of joint legal custody,
the mother's admitted neglect of the child and her corresponding
lack of parental insight and judgment – in our view – renders
joint custody unworkable here.
                              -5-                521206

the record is sufficiently complete to permit an informed
modification of the visitation provisions" of the underlying
order (Matter of Knox v Romano, 137 AD3d 1530, 1532 [2016]; see
Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004]), and
given that the mother previously was a consistent and significant
presence in the child's life, we find that an increase in the
mother's parenting time is in the child's best interests.
Accordingly, commencing 10 days from the date of this Court's
decision, the mother's alternating weekend parenting time will be
from Friday at the close of school, or beginning at 3:00 p.m. if
school is not in session, until Monday morning at the start of
school, or 9:00 a.m. if school is not in session. In addition,
the mother shall have a total of two weeks – consecutive or
nonconsecutive – of uninterrupted parenting time with the child
during the summer recess from school.

      As a final matter, to the extent that the attorney for the
child on appeal contends that the child was not afforded the
effective assistance of counsel at the hearing, we disagree. In
addition to counsel's participation and advocacy at the fact-
finding hearing, counsel questioned the child during the course
of the Lincoln hearing – calling to Family Court's attention
relevant conversations and issues that the child had related to
counsel that were not developed during the court's examination of
the child. As the attorney for the child otherwise effectively
communicated her client's wishes, we are satisfied that the child
received the effective assistance of counsel.

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.
                              -6-                  521206

      ORDERED that the order is modified, on the facts, without
costs, by awarding respondent additional parenting time as set
forth in this Court's decision, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
