                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 11, 2015                      518717
_________________________________

In the Matter of PATRICK EE.
   et al.,
                    Respondents,
      v

BRENDA DD.,
                      Appellant,
     and

CORTLAND COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent.

(Proceeding No. 1.)                          MEMORANDUM AND ORDER
_________________________________

In the Matter of BRENDA DD.,
                    Appellant,
      v

PATRICK EE. et al.,
                      Respondents.

(Proceeding No. 2.)

(And Another Related Proceeding.)
_________________________________


Calendar Date:    April 21, 2015

Before:    Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

                              __________


     Lisa K. Miller, McGraw, for appellant.

      Margaret McCarthy, Ithaca, for Patrick EE. and another,
respondents.
                              -2-                518717

     Natalie B. Miner, Homer, attorney for the children.

                           __________


McCarthy, J.

      Appeal from a decision and an order of the Family Court of
Cortland County (Campbell, J.), entered January 6, 2014 and March
21, 2014, which, among other things, granted petitioners'
application, in proceeding No. 1 pursuant to Family Ct Act
article 6, for modification of a prior order of visitation.

      Patrick EE. (hereinafter the father) and Brenda DD.
(hereinafter the mother) are the parents of a daughter (born in
2000) and a son (born in 2001). In 2012, after the children had
twice been found to be neglected by the mother (see Matter of
Gloria DD. [Brenda DD.], 99 AD3d 1044, 1044-1045 [2012]), the
father and the stepmother petitioned for custody and Family Court
ordered such custody to them. That same order devised a
visitation schedule for the mother whereby she would receive,
among other things, weekly supervised visitation beginning in
July 2012, followed by weekly unsupervised visitation commencing
in December 2012.

      In February 2013, after three unfounded reports were made
to Child Protective Services (hereinafter CPS) regarding the
children, the father and the stepmother commenced proceeding No.
1 seeking a modification of the visitation arrangement so as to
have such visitation either supervised or terminated. In
response, the mother commenced proceeding No. 2 and another
proceeding, eventually alleging a violation of the July 2012
order, stemming in part from the children's unsuccessful
discharge from counseling, and seeking unsupervised visitation
and access to the children's school, medical and counseling
records. Following fact-finding and Lincoln hearings, Family
Court issued a decision and then an order that awarded sole
custody of the children to the father and the stepmother and
suspended the mother's visitation pending a further order of the
court. The mother now appeals from both the decision and the
                              -3-                518717

order.1

      There is a sound and substantial basis for Family Court's
determination to suspend the mother's visitation. To modify an
order of visitation or custody, a party must demonstrate a change
in circumstances necessitating a modification in order to ensure
the best interests of the children (see Matter of Chris X. v
Jeanette Y., 124 AD3d 1013, 1014 [2015]; Matter of Ford v Baldi,
123 AD3d 1399, 1400 [2014]). Relevant factors in determining the
propriety of a custody modification include "'maintaining
stability for the child[ren], the respective home environments,
length of the current custody arrangement, each parent's relative
fitness and past parenting performance, and willingness to foster
a healthy relationship with the other parent'" (Matter of Chris
X. v Jeanette Y., 124 AD3d at 1014, quoting Matter of Joshua UU.
v Martha VV., 118 AD3d 1051, 1052 [2014]). A petitioner seeking
the termination of a noncustodial parent's visitation must
overcome the presumption that the children's best interests are
furthered by such visitation by "showing, by a preponderance of
the evidence, that visitation would be harmful to the child[ren]"
(Matter of Granger v Misercola, 21 NY3d 86, 92 [2013]; see Matter
of Owens v Chamorro, 114 AD3d 1037, 1039 [2014]; Matter of
VanBuren v Assenza, 110 AD3d 1284, 1284 [2013]).

      Here, there was sufficient evidence to allow for a
reasonable inference that the mother had made or caused to be
made the unfounded CPS reports regarding the father and the
stepmother. Those reports included allegations that the father
sexually molested the daughter, that the father and stepmother
directed racist and homophobic remarks at the son, that they
failed to provide proper food to the children, that the
stepmother had struck the daughter in the head and caused her ear
to bleed, that the stepmother had threatened to poison the
children and that the stepmother has carved an initial into the
son's hair and informed him that it represented a homophobic slur


     1
        The mother's appeal from the decision entered January 6,
2014 must be dismissed, as a decision is not an appealable paper
(see CPLR 5512 [a]; Matter of Clary v McIntosh, 117 AD3d 1285,
1285 n [2014]).
                              -4-                518717

that she applied to him. The evidence established that these
unfounded reports caused the children to be removed from their
classrooms in school in order to be interviewed regarding the
allegations. The investigation particularly caused stress for
the daughter, who indicated that she was upset for being singled
out and because of the inaccuracy of the CPS reports.

      Further evidence established that the mother had cancelled
visitation with the children on short notice and sometimes for
inadequate reasons. In addition, the mother engaged in
inappropriate conversation in front of the children during
visitation, including sharing her theories that respondent
Cortland County Department of Social Services (hereinafter DSS)
was corrupt and that it would soon remove the stepmother's
biological children from the stepmother's care. Further evidence
showed that, while the mother visited with the children, she had
made numerous derogatory remarks in front of them regarding the
father and the stepmother. On some occasions, the children
refused to go to the visits with the mother. Notably, in terms
of the effect that such turmoil had on the children, the daughter
overturned and destroyed items in her bedroom on the day before
the commencement of the fact-finding hearing and, on the day of
that hearing, the son was kicked out of school after instigating
a fight.

      Regarding the mother's fitness as a parent, the evidence
established that the mother had been diagnosed with major
depressive disorder, panic disorder without agoraphobia,
posttraumatic stress disorder and borderline personality
disorder. Although there was evidence introduced that the mother
had made certain progress in therapy regarding these mental
health issues, other evidence established that she continued to
evince an unwillingness to accept her prior neglect of the
children. For example, the mother admitted that she had recently
signed a petition on a social media website requesting the
Governor to have local DSS employees arrested, declaring in her
comment, along with such signature, that DSS had stolen her
children.

      Although the mother disputed some of the aforementioned
evidence, Family Court found the mother's testimony as to such
                              -5-                518717

denials to be incredible. Otherwise, the evidence supports
Family Court's conclusion that, due to the mother's mental health
issues and her potentially related hostility toward relevant
child welfare authorities, the father and the stepmother,
supervised visitation was unlikely to succeed in mitigating or
eliminating the mother's infliction of emotional and
psychological harm upon the children. Further, despite the lack
of any other evidence that reasonably supports the mother's
contention, she openly maintained the position that, among other
things, the father had sexually abused the daughter and that both
he and the stepmother had used homophobic and racist slurs to
refer to the son. Considering this evidence, and granting
appropriate deference to Family Court's credibility assessment,
there is a sound and substantial basis in the record for Family
Court's determination that there was a change in circumstance
that warranted suspending the mother's visitation because such
visitation would be harmful to the children and, therefore, not
in their best interests (see Matter of Ildefonso v Brooker, 94
AD3d 1344, 1345 [2012]; Matter of Jones v McMore, 37 AD3d 1031,
1032 [2007]).

      Further, we are not persuaded that consideration of the
mother's violation petition regarding the 2012 order merits any
different result. "'[T]he mother was required to show that the
father's [and/or the stepmother's] actions or failure to act
defeated, impaired, impeded or prejudiced a right of the mother
and that [such] alleged violation[s] [were] willful'" (Matter of
Cobane v Cobane, 119 AD3d 995, 996 [2014], quoting Matter of
Constantine v Hopkins, 101 AD3d 1190, 1191 [2012]). Although the
evidence bore out the mother's factual allegation that the
children had been unsuccessfully discharged from counseling, the
stepmother explained that such discharge was the result of a
change in the children's health insurance coverage and that, as a
result, she and the father could no longer financially afford to
provide such counseling. Family Court explicitly credited the
stepmother's account and concluded that the discharge from
counseling was not willful. Giving deference to that credibility
determination, Supreme Court did not err in its dismissal of the
mother's violation petition (see Matter of Cobane v Cobane, 119
AD3d at 996).
                              -6-                  518717

      Finally, the mother's contention that Family Court's bias
permeated the proceedings, depriving her of due process, is
unpreserved given that she did not object on these grounds or
move for Family Court's recusal (see Matter of Bowe v Bowe, 124
AD3d 645, 646 [2015]; Matter of Kimberly Z. [Jason Z.], 88 AD3d
1181, 1184 [2011]). The mother's remaining contentions are
unpreserved and/or without merit.

     Lahtinen, J.P., Garry and Rose, JJ., concur.



      ORDERED that the appeal from the decision entered January
6, 2014 is dismissed, without costs.

      ORDERED that the order entered March 21, 2014 is affirmed,
without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
