                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       520052
__________________________________

In the Matter of CHAD L. EDICK,
                    Respondent,
      v

JACQUELINE M. GAGNON,                       MEMORANDUM AND ORDER
                    Appellant.

(And Another Related Proceeding.)
__________________________________


Calendar Date:   March 24, 2016

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

                             __________


     Jeffrey A. Aumell, Canastota, for appellant.

     Paul H. Hadley, Waterville, for respondent.

     William L. Koslosky, Utica, attorney for the child.

                             __________


McCarthy, J.P.

      Appeal from an order of the Family Court of Madison County
(DiStefano, J.), entered September 26, 2014, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a child (born in
2011). In April 2012, the father filed a petition seeking
custody of the child, who was living with the mother at that
time. In June 2012, the mother also filed a petition seeking
custody of the child. Eventually, Family Court ordered temporary
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joint legal custody, with primary physical custody to the father,
and visitation to the mother of two consecutive weekends for
every weekend that the child spent with the father. After a
hearing, Family Court granted joint legal custody to the parties,
with primary physical custody to the father and provided the
mother with visitation during alternate weekends. The mother
appeals.

      At trial, proof was introduced that the mother's home was
messy to the point of being unsanitary. A social services
caseworker testified to visiting the home and finding the child
with food stains on his face and wearing a diaper saturated with
urine and feces. According to the caseworker, the mother
explained that the brown and orange stains that were on the
child's bedding were the result of the child finding a can in the
garbage and cutting himself on it. Another witness, who knew the
mother, noticed that the mother used "very unclean" bottles to
feed the child formula that "obviously[] had gone bad." The same
witness testified to the mother's references to the child as
"whine-ass" and explained that the mother made her boyfriend a
priority over the child. The mother, during her testimony,
admitted that the home was very dirty during this time and
explained that it was due to her stress regarding a breakup with
her boyfriend. The mother acknowledged that she was unemployed.
Multiple witnesses agreed that the mother had attempted to make
the father pay her $500 as a condition to visiting the child.

      The father, who was employed by the military, testified
that, after receiving temporary physical custody of the child, he
ensured that the child had received his needed shots, therapy for
speech and language and therapy for issues with aggression. He
further explained that he has voluntarily taken parenting classes
at his military base. According to the father, the child no
longer receives speech therapy because the child is no longer
developmentally delayed. The father's wife testified that,
within the first three weeks of the father receiving temporary
custody of the child, the child gained 3½ pounds.

      Considering the evidence of the greater stability in the
father's home and the evidence of the child's improvements in
health and development once he began residing there, and
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deferring to Family Court's credibility determinations, we find a
sound and substantial basis for the court's conclusion that the
child's best interests were served by awarding physical custody
to the father and by awarding the mother visitation during
alternate weekends (see Matter of Daniel TT. v Diana TT., 127
AD3d 1514, 1516 [2015]; Matter of Kayla Y. v Peter Z., 125 AD3d
1126, 1127 [2015]).1 Further, assuming that the mother is
correct in her contention that photographs depicting the state of
her home were erroneously introduced into evidence, we find such
errors to be harmless. The photographs only confirmed what the
mother had already testified to – that her home was very unclean
(see Matter of Jolynn W. v Vincent X., 85 AD3d 1217, 1217 n 1
[2011], lv denied 17 NY3d 713 [2011]; Matter of Nicole VV., 296
AD2d 608, 613 [2002], lv denied 98 NY2d 616 [2002]). Finally,
contrary to the mother's contention, the fact that a child
protective services report is unfounded and therefore
inadmissible (see Family Ct Act § 651-a) does not render
inadmissible competent evidence related to the incidents
underlying that investigation. The mother's remaining
contentions are without merit.

        Egan Jr., Rose, Devine and Clark, JJ., concur.




    1
        The mother incorrectly contends that Family Court was
required to determine whether there had been a change in
circumstances. The court is not required to engage in such an
analysis when it has not yet made an initial custody and
visitation determination (see Matter of Williams v Dowgiallo, 90
AD3d 942, 942-943 [2011]; Matter of Quinones v Gonzalez, 79 AD3d
893, 894 [2010]).
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
