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

213
CAF 13-01367
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF VINCENT DONEGAN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAMARI TORRES, RESPONDENT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR PETITIONER-RESPONDENT.

BETH A. LOCKHART, ATTORNEY FOR THE CHILD, CANASTOTA.


     Appeal from an amended order of the Family Court, Onondaga County
(Michael L. Hanuszczak, J.), entered June 11, 2013 in a proceeding
pursuant to Family Court Act article 6. The amended order, among
other things, granted sole legal and physical custody of the parties’
child to petitioner and granted supervised visitation to respondent.

     It is hereby ORDERED that said appeal insofar as it concerns
custody and visitation is unanimously dismissed, and the amended order
is otherwise affirmed without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order that, among other
things, awarded petitioner father sole legal and physical custody of
the parties’ child. We note at the outset that the order from which
the mother appeals was superseded by an amended order, from which no
appeal was taken. In the exercise of our discretion, however, we
treat the notice of appeal as valid and deem the appeal as taken from
the amended order (see CPLR 5520 [c]; Matter of Dante P., 81 AD3d
1267, 1267-1268).

     We reject the contention of the Attorney for the Child that the
mother’s appeal is moot in its entirety because, while this appeal was
pending, a new custody proceeding was held and the paternal
grandfather was awarded sole legal and physical custody of the subject
child. In conducting its best interests analysis, Family Court found
that the mother’s judgment was impaired to a degree that made her
unfit to be a custodian of the child, a finding that “may have
‘enduring consequences’ for the parties” (Matter of Van Dyke v Cole,
121 AD3d 1584, 1585, quoting Matter of New York State Commn. on
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                                                         CAF 13-01367

Judicial Conduct v Rubenstein, 23 NY3d 570, 576). We therefore
conclude that the mother’s challenge to the court’s determination with
respect to her fitness to act as a custodial parent is not moot.

     We nevertheless reject the mother’s challenge on the merits. The
evidence at the custody hearing established that the mother suffered
from bipolar disorder and schizophrenia with psychosis, that she
received Social Security disability income, and that her mental health
hospitalization required her relatives to travel to Puerto Rico to
prevent the child from being placed in protective custody. Although
the mother acknowledged her mental health condition, she testified
that she stopped obtaining treatment through psychiatric services and
medication because, in her view, such treatment was more hurtful than
helpful (see Matter of Booth v Booth, 8 AD3d 1104, 1105, lv denied 3
NY3d 607). Without treatment for her condition, there was no basis
for the court to conclude that a relapse or further hospitalization
would be unlikely (see id.). We therefore conclude that there is a
sound and substantial basis in the record for the court’s
determination that, in light of her untreated mental health condition,
the mother was unfit to act as a custodial parent (see Matter of
Miller v Orbaker, 17 AD3d 1145, 1146, lv denied 5 NY3d 714; see
generally Matter of Cool v Malone, 66 AD3d 1171, 1173; Matter of
Pamela S.S. v Charles E., 280 AD2d 999, 1000). We further conclude
that the court properly considered the mother’s willingness to reside
with the father of her other children as a factor weighing against her
fitness to act as a custodial parent (see generally Matter of Weekley
v Weekley, 109 AD3d 1177, 1179; Matter of James A.-S. v Cassandra
A.-S., 107 AD3d 703, 705-706; Matter of Richard C.T. v Helen R.G., 37
AD3d 1118, 1118-1119). The evidence established that the father of
the other children had pleaded guilty to a charge stemming from his
sexual abuse of their oldest daughter and was the subject of an
indicated Child Protective Services report for inadequate guardianship
because he had attempted to touch his younger daughter
inappropriately.

     The mother’s appeal insofar as it concerns her remaining
contentions is moot (see Van Dyke, 121 AD3d at 1586).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
