                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 26, 2015                   517871
____________________________________

In the Matter of ROSETTA BB.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
JOSEPH DD.,
                    Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   January 5, 2015

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

                             __________


     Tammy J. Arquette, Clifton Park, for appellant.

      Gordon, Tepper & DeCoursey, LLP, Glenville (Elise C. Powers
of counsel), for respondent.

     Mitchell Kessler, Cohoes, attorney for the child.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Schenectady
County (Powers, J.), entered September 3, 2013, which, among
other things, granted respondent's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of a child
(born in 2008). In 2010, the mother petitioned, and the father
cross-petitioned, for custody of the child. Family Court (Taub,
J.H.O.) initially granted the mother temporary physical custody
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of the child but, in February 2011, issued an order awarding
physical custody to the father and affording the mother
supervised visitation. At Family Court's direction, the attorney
for the child then commenced a neglect proceeding against the
mother. Family Court (Powers, J.) made a finding of neglect
against the mother based on her detrimental failure to follow the
recommendations of the child's medical providers. That
determination was affirmed by this Court on appeal (Matter of
Josephine BB. [Rosetta BB.], 114 AD3d 1096 [2014]).

      Family Court then conducted a combined hearing to resolve
the custody petitions and determine an appropriate disposition in
the neglect proceeding. During the course of the proceedings,
the temporary custodial arrangement was modified to grant the
mother unsupervised visitation, although Family Court imposed
various restrictions on the mother's behavior during those
visits. Family Court ultimately awarded the father sole legal
and physical custody of the child and granted visitation to the
mother subject to certain restrictions. The mother appeals.

      We affirm. "An initial custody determination is controlled
by the best interests of the child, taking into consideration
such factors as the parents' past performance and relative
fitness, their willingness to foster a positive relationship
between the child and the other parent, as well as their ability
to maintain a stable home environment and provide for the child's
overall well-being" (Matter of Jarren S. v Shaming T., 117 AD3d
1109, 1110 [2014] [internal quotation marks and citations
omitted]; see Matter of McLaughlin v Phillips, 110 AD3d 1184,
1185 [2013]).

      To that end, the mother has evinced a disturbing failure to
grasp the basis for or the seriousness of the neglect finding
against her, even giving the impression to her therapist that the
neglect accusations were deemed unfounded. The mother remains
uncooperative with the child's medical providers, most notably
when she refused to provide a sample of birdseed so that the
child's allergist could determine whether it was the source of a
serious allergic reaction. The mother's failure to grasp the
severity of the child's food allergy is also evident in the fact
that she has provided the child with treats, allegedly intended
                              -3-                517871

as gifts, that would trigger those allergies. There is also no
dispute that the parties have difficulty discussing issues
involving child care, which has manifested itself in disputes
over religious concerns and a wholesale breakdown in
communication regarding the child's medical care.

      In contrast, since being placed in the care of the father,
the child has gained weight and has received appropriate medical
care. The father has also enrolled the child in preschool, and
she has developed emotional bonds with other members of his
family. Moreover, the father and his family have facilitated
visitation and have encouraged the child to maintain a
relationship with the mother. According due deference to Family
Court's assessments of credibility, we find that the foregoing
constitutes a sound and substantial basis for Family Court's
determinations as to custody and visitation (see Matter of
Alleyne v Cochran, 119 AD3d 1100, 1101 [2014]; Matter of Jarren
S. v Shaming T., 117 AD3d at 1111).

      Turning to the restrictions placed upon the mother's
visitation with the child, the mother is a permanent resident of
Canada and, because she has previously threatened to abscond with
the child, Family Court properly limited visitation to
Schenectady County (see Matter of Adams v Morris, 111 AD3d 1069,
1071 [2013]). The mother was also restricted from allowing the
maternal grandfather to have contact with the child, which was
amply justified given his propensity for violence and other
criminal activity (see Matter of Mayo v Mayo, 63 AD3d 1207, 1209-
1210 [2009]; Bohnsack v Bohnsack, 185 AD2d 533, 535 [1992]).
Family Court additionally barred the mother from bringing the
child to the residence of the maternal grandparents, a
restriction that is more questionable now that the maternal
grandfather is serving a lengthy prison sentence. That being
said, the record also reflects that the mother has a tempestuous
relationship with the maternal grandmother and the maternal
grandparents have harbored unsavory individuals at their home in
the past. Under these circumstances, Family Court properly
directed the mother to keep the child away from the maternal
grandparents' residence (see Matter of Mayo v Mayo, 63 AD3d at
1209-1210). Therefore, we find no reason to modify the mother's
visitation schedule.
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McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
