Opinion
12-23-2016
In the Matter of Torrence P. CURRY, Petitioner–Respondent, v. Latoya D. REESE, Respondent–Appellant.
Elizabeth Ciambrone, Buffalo, for Respondent–Appellant. Alvin M. Greene, Attorney for the Child, Buffalo.
Elizabeth Ciambrone, Buffalo, for Respondent–Appellant.
Alvin M. Greene, Attorney for the Child, Buffalo.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.
MEMORANDUM:In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, awarded sole custody of the subject child to petitioner father. Initially, we agree with the mother that Family Court failed to state for the record that there was a sufficient change in circumstances to warrant a determination whether a change in the existing custody arrangement would be in the best interests of the child. Nevertheless, "this Court has the authority to independently review the record" to ascertain whether the requisite change in circumstances existed (Matter of Prefario v. Gladhill, 90 A.D.3d 1351, 1352, 935 N.Y.S.2d 671 ; see Matter of Bedard v. Baker, 40 A.D.3d 1164, 1165, 835 N.Y.S.2d 511 ; see generally Matter of Williams v. Tucker, 2 A.D.3d 1366, 1367, 770 N.Y.S.2d 229, lv. denied 2 N.Y.3d 705, 780 N.Y.S.2d 310, 812 N.E.2d 1260 ).
Here, the evidence in the record establishes that the Erie County Department of Social Services filed a neglect petition against the mother, and that the court entered a finding of neglect against the mother based on the conditions in her home. "[T]he adjudication of neglect constituted a change in circumstances that warranted a determination whether a modification of the custody arrangement set forth in the [prior] joint custody order was in the best interests of the child" (Matter of Christy S. v. Phonesavanh S., 108 A.D.3d 1207, 1208, 970 N.Y.S.2d 340 ; see Matter of Ze'Nya G. [Nina W.], 126 A.D.3d 566, 566, 3 N.Y.S.3d 577 ;
see also Matter of Palmatier v. Carman, 125 A.D.3d 1139, 1139–1140, 4 N.Y.S.3d 343 ). "In view of the foregoing, and despite the court's failure to articulate any specific findings to support [the conclusion] that a change in circumstances had been established, we find that the requisite change in circumstances has been shown" (Prefario, 90 A.D.3d at 1353, 935 N.Y.S.2d 671 ; see Matter of Eastman v. Eastman, 118 A.D.3d 1342, 1343, 987 N.Y.S.2d 752, lv. denied 24 N.Y.3d 910, 2014 WL 6643222 ; Matter of Casarotti v. Casarotti, 107 A.D.3d 1336, 1337–1339, 967 N.Y.S.2d 783, lv. denied 22 N.Y.3d 852, 2013 WL 5614329 ).
We reject the mother's further contention that the child's best interests are not served by awarding sole custody of the child to the father. Although "[t]his Court has held that sibling relationships should not be disrupted ‘unless there is some overwhelming need to do so’ " ( White v. White, 209 A.D.2d 949, 950, 619 N.Y.S.2d 428, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 324, 650 N.E.2d 1326 ; see Salerno v. Salerno, 273 A.D.2d 818, 819, 708 N.Y.S.2d 539 ), "this rule is not absolute and may be overcome where, as the record here shows, the best interest[s] of each child lie[ ] with a different parent" (Matter of Delafrange v. Delafrange, 24 A.D.3d 1044, 1046, 806 N.Y.S.2d 769, lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453 [internal quotation marks omitted] ). Here, the court properly concluded that it is in the child's best interests that she be separated from her siblings (see Matter of Lowe v. O'Brien, 81 A.D.3d 1093, 1095, 917 N.Y.S.2d 363, lv. denied 16 N.Y.3d 713, 2011 WL 1675393 ; Matter of Lightbody v. Lightbody, 42 A.D.3d 537, 538, 840 N.Y.S.2d 131, lv. denied 9 N.Y.3d 1017, 851 N.Y.S.2d 121, 881 N.E.2d 217 ; Matter of Seymour v. Seymour, 267 A.D.2d 1053, 1053, 701 N.Y.S.2d 568, lv. denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 ).
The mother further contends that the court was biased against her. "A party claiming court bias must preserve an objection and move for the court to recuse itself" (Matter of Baby Girl Z. [Yaroslava Z.], 140 A.D.3d 893, 894, 35 N.Y.S.3d 129 ; see Matter of Ashlyn Q. [Talia R.], 130 A.D.3d 1166, 1169, 13 N.Y.S.3d 630 ), and the mother failed to do so here. Therefore, her contention is not preserved for our review. In any event, "[t]he record does not establish that the court was biased or prejudiced against" the mother (Matter of Rasyn W., 270 A.D.2d 938, 938, 705 N.Y.S.2d 913, lv. denied 95 N.Y.2d 766, 716 N.Y.S.2d 641, 739 N.E.2d 1146 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.