                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     514149
____________________________________

In the Matter of DIANE C.,
                    Appellant,
      v

RICHARD B., Also Known as
   ALLEN D.,
                    Respondent,
                    et al.,
                    Respondent.

(Proceeding No. 1.)
______________________________________

In the Matter of ALLEN D.,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
DIANE C.,
                      Appellant.

(Proceeding No. 2.)

(And Three Other Related Proceedings.)
______________________________________

In the Matter of DAVID B.,
   Alleged to be a Neglected
   Child.

CHENANGO COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Respondent;

DIANE C.,
                      Appellant.

(Proceeding No. 6.)
____________________________________


Calendar Date:   June 4, 2014
                                -2-                514149

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

                             __________


        Abbie Goldbas, Utica, for appellant.

      Sarah C. Fitzpatrick, Chenango County Department of Social
Services, Norwich, for Chenango County Department of Social
Services, respondent.

        Paul R. Corradini, Elmira, for Allen D., respondent.

        Patrick Flanagan, Norwich, attorney for the child.

                             __________


Clark, J.

      Appeals (1) from an order of the Family Court of Chenango
County (Campbell, J.), entered February 23, 2012, which granted
petitioner's application, in proceeding No. 6 pursuant to Family
Ct Act article 10, to adjudicate David B. to be a neglected
child, and (2) from an order of said court, entered March 1,
2012, which, among other things, granted petitioner's
application, in proceeding No. 2 pursuant to Family Ct Act
article 6, to modify a prior order of custody.

      Richard B., also known as Allen D. (hereinafter the
father),1 and respondent Cheryl E. (hereinafter the mother) are
the parents of the subject child (born in 2004). Diane C.
(hereinafter the grandmother) is the child's paternal
grandmother. In 2005, when the father was incarcerated and the
mother was allegedly homeless, the grandmother was awarded sole


    1
        The father's birth name was Richard B. However, the
father was purportedly adopted at some point and, at that time,
his name was changed to Allen D., which is the name he now goes
by.
                               -3-                514149

custody of the child. In November 2010, the father, who had been
released from incarceration, and the grandmother consented to
modify a prior order of custody so as to award the father a
schedule of unsupervised visitation with the child. Just one
month later, the grandmother commenced the first of these
proceedings, seeking to modify the November 2010 custody order by
suspending visitation with the father based upon an allegation
that he had sexually abused the child. Shortly thereafter, the
father commenced the second of these proceedings also seeking to
modify the November 2010 custody order by removing the child from
the grandmother's care.2 Following a court-ordered
investigation, it was determined that the sexual abuse allegation
was unfounded.

      In 2011, petitioner Chenango County Department of Social
Services (hereinafter DSS) commenced proceeding No. 6 against the
grandmother alleging, among other things, that she neglected the
child by failing to provide proper supervision and effectively
alienating him from the father. Following a prolonged fact-
finding hearing, Family Court granted that petition and
determined that the grandmother had neglected the child. Family
Court then proceeded to conduct a combined dispositional hearing
and hearing on the pending modification petitions. Thereafter,
the court entered an order in the neglect proceeding and a final
order in the custody proceedings that, among other things,
granted sole custody to the father and terminated visitations
between the child and the grandmother. The grandmother now
appeals from both orders.

      We affirm. The grandmother argues that DSS failed to prove
neglect by a preponderance of the evidence or, alternatively,
that, even if DSS properly proved the allegations of the
petition, Family Court's dispositional order was in error. "To
establish neglect, a petitioner must demonstrate, by a
preponderance of the evidence, that the child's physical, mental
or emotional condition has been impaired or is in imminent danger


     2
        Between them, the grandmother and the father subsequently
commenced three additional proceedings each seeking to modify
custody for various reasons.
                               -4-                514149

of becoming impaired due to the failure of the parent or
caretaker to exercise a minimum degree of care" (Matter of
Josephine BB. [Rosetta BB.], 114 AD3d 1096, 1097 [2014]; see
Family Ct Act §§ 1012 [f] [i]; 1046 [b] [i]; Nicholson v
Scoppetta, 3 NY3d 357, 368 [2004]). Determining "whether a
parent is exercising a minimum degree of care requires an
objective evaluation of the parent's behavior, in light of
whether a reasonable and prudent parent would have so acted, or
failed to act, under the circumstances" (Matter of Daniel X.
[Monica X.], 114 AD3d 1059, 1060 [2014]; see Nicholson v
Scoppetta, 3 NY3d at 370; Matter of Josephine BB. [Rosetta BB.],
114 AD3d at 1097). In reviewing a finding of neglect, "we accord
deference to the court's credibility and factual determinations,
in view of its ability to observe the testimony, particularly
that of the [parties]" (Matter of Perry v Surplus, 112 AD3d 1077,
1080 [2013]; see Matter of Josephine BB. [Rosetta BB.], 114 AD3d
at 1100), and its finding will not be disturbed so long as it is
supported by a sound and substantial basis in the record
(see Matter of Josephine BB. [Rosetta BB.], 114 AD3d at 1097;
Matter of Daniel X. [Monica X.], 114 AD3d at 1061).

      In our view, there is a sound and substantial basis in the
record before us to support Family Court's determination that the
grandmother's longstanding pattern of behavior constituted
neglect. Specifically, proof in the form of the testimony of
numerous witnesses, including the grandmother herself, adequately
supports Family Court's finding. For example, Linda Lee-Smith, a
DSS employee, testified that she became involved in the child's
case in 2005, when his paternal aunt, Daralynn B. – one of the
grandmother's daughters – petitioned for visitation. While
facilitating such visits, Lee-Smith repeatedly observed the
grandmother upsetting the child and then taking photos once he
began crying. Lee-Smith also testified that the grandmother
alleged that the child was mistreated and abused during his
visits with Daralynn.3 Daralynn explained that, within a short


     3
        The grandmother alleged that the child was losing weight
during his visits with Daralynn and began having the child
weighed at the pediatrician's office before and after every
visitation. When the child's doctor did not confirm the
                              -5-                514149

time of being awarded visitation with the child, the grandmother
commenced three proceedings against her to restrict those visits
based upon false allegations. Jamie B., another of the
grandmother's daughters, testified at the fact-finding hearing
that, since approximately 2009, she has visited the grandmother's
house regularly and observed the grandmother and the child
interact. Jamie testified to numerous alarming conversations
between the grandmother and the child, during which the
grandmother told the child to say that the father was touching
him in a sexual way or was physically abusing him. According to
Jamie, the grandmother would threaten the child that, if he did
not make these allegations against the father, he would have his
legs "chopped off" and be "in a wheelchair."

      Crystal Cornell, a former child protective services
caseworker, testified that, between March 2011 and October 2011,
she investigated eight child protective reports regarding the
father, all of which originated with the grandmother. In this
regard, Cornell explained that the grandmother was intentionally
seeking out mandatory reporters to tell them about alleged sexual
abuse and, to that end, had brought the child to the emergency
room 14 times over a nine-month period seeking to substantiate
her allegations of abuse against the father. Notably, Cornell
emphasized that all of her investigations ultimately exonerated
the father and, instead, indicated misconduct on behalf of the
grandmother. Kelly O'Connor, a child protective worker employed
by DSS, also testified that in November 2011, when investigating
yet another allegation of sexual abuse against the father, the
child disclosed that the grandmother had told him to say that the
father had inappropriately touched him. Likewise, Debra Kman, a
psychotherapist who supervised visits between the father and the
child, testified that, in late 2011, the child disclosed to her
that the grandmother had told him to say that the father had
inappropriately touched him and had burned him with a cigarette.



grandmother's suspicions of abuse, she changed his pediatrician.
The grandmother explained that she switched doctors because she
felt that the original pediatrician was being influenced by child
protective services.
                              -6-                514149

      Further, Isabella Rauh-Ivers, the court-appointed forensic
psychologist, testified that the child was "very clear and very
consistent" that he had never been sexually or physically abused,
and admitted that he had lied about the abuse. After
interviewing the grandmother, Rauh-Ivers diagnosed her with
having "an obsessional, compulsive personality disorder . . .
with a variety of different features that include[] narcissistic
histrionics, schizotypal and dependent features," and testified
to the negative impact that the grandmother's behavior has had on
the child. Rauh-Ivers testified to the positive attributes
possessed by the father and explained that, despite his prior
involvement with the criminal justice system, there was no
indication that he is a pedophile or that he has ever molested a
child. Finally, while Vincent Monastra, a psychologist who
treated the child for a substantial period of time between 2008
and 2011, testified on behalf of the grandmother that her
behavior was not inappropriate, Monastra did acknowledge that the
child's reporting of abuse was not consistent over time and
changed depending on who was present during a particular session.
Moreover, the grandmother testified at length that she had
reported the allegations of abuse because she genuinely believed
that the father had abused the child, but Family Court properly
rejected that testimony as inconsistent with the facts.

      Viewing the grandmother's longstanding pattern of behavior
objectively (see Matter of Daniel X. [Monica X.], 114 AD3d at
1060), there is a sound and substantial basis for Family Court's
finding of neglect as a result of her failure to exercise a
minimum degree of care (see Matter of Julian K., 23 AD3d 717,
718-719 [2005]; Matter of Christine II., 13 AD3d 922, 923 [2004];
see also Matter of Josephine BB [Rosetta BB.], 114 AD3d at 1100).
Family Court carefully set forth each and every basis to support
its ultimate conclusion in a lengthy, thorough decision, and we
accord deference to the court's credibility determinations – its
finding that the grandmother's testimony was not credible, in
particular.

      We next reject the grandmother's assertion that Family
Court, in its dispositional order, should have allowed her to
maintain custody of the child and should not have terminated her
supervised visits with him. A "dispositional order must reflect
                              -7-                514149

a resolution consistent with the best interests of the child[]
after consideration of all relevant facts and circumstances"
(Matter of Alaina E., 33 AD3d 1084, 1087 [2006]; accord Matter of
Kaleb U. [Heather V.—Ryan U.], 77 AD3d 1097, 1099-1100 [2010]).
The appropriate inquiry in this regard "involves consideration of
the parent's [or caretaker's] ability to supervise the child and
any potential threat of future abuse or neglect" (Matter of
Kathleen OO., 232 AD2d 784, 786 [1996]; accord Matter of Victoria
XX. [Thomas XX.], 110 AD3d 1168, 1171 [2013]; Matter of Hobb Y.,
56 AD3d 998, 999 [2008]). Further, as is particularly relevant
here, "[t]he [s]tate may not deprive a parent of the custody of a
child absent surrender, abandonment, persisting neglect,
unfitness or other like extraordinary circumstances" (Matter of
Bennet v Jeffreys, 40 NY2d 543, 544 [1976]; accord Matter of Fynn
S., 56 AD3d 959, 961 [2008]).

      The record reflects that the best interests of the child
are served by awarding the father custody and terminating the
grandmother's visitation with him. At the dispositional hearing,
Kathryne Lavoie, a DSS employee who supervised visits between the
grandmother and the child during the pendency of the proceedings,
testified that she observed the grandmother violating visitation
rules and making inappropriate comments to the child that
resulted in the child crying. Likewise, Deborah Munyan, another
of DSS's caseworkers who supervised visits between the
grandmother and the child, stated that the grandmother disobeyed
visitation rules.

      The father's testimony established that he is employed full
time and lives in a three-bedroom apartment with his wife, her
twin sons, their child and the subject child. The father is
involved in the child's education, his counseling and his extra-
curricular activities and adamantly denies ever abusing the
child. While the father explained that he did not believe it was
in the child's best interests to visit with the grandmother, he
agreed to adhere to any court-ordered visitation.

      With regard to disposition, Rauh-Ivers testified that,
since residing with the father, the child has been able to
express a "liveliness or dimensionality" that was not present
when he was living with the grandmother. The child now refers to
                              -8-                  514149

the father as "daddy," he is doing very well in school, and he no
longer takes the anti-anxiety medication he was on when he lived
with the grandmother. Notably, Rauh-Ivers expressed her concern
that, if the child were placed in the grandmother's custody,
"there would be a substantial risk that he would essentially not
be permitted or afforded opportunities to maintain or sustain a
meaningful relationship with [the father]" and, therefore, the
best interests of the child would be served by placing him in the
custody of the father. While stating that, "in the best of all
worlds there should be some contact" between the grandmother and
the child in a monitored setting, Rauh-Ivers nonetheless
expressed her concern that the grandmother would influence or
undermine the child, even in a supervised setting. Accordingly,
we agree with Family Court that the best interests of the child
are best served by awarding the father sole custody and
terminating the grandmother's visitation with the child inasmuch
as visitation poses the likelihood of further emotional and
psychological harm to the child (see Matter of Trombley v
Trombley, 301 AD2d 890, 891-892 [2003]; see also Matter of
Victoria XX. [Thomas XX.], 110 AD3d at 1171-1172).

      The grandmother's remaining contentions, including those
raised in her pro se brief, are either unpreserved or without
merit.

     Stein, J.P., Rose and Egan Jr., JJ., concur.


     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
