Dainee A.
v.
O'Neil H. (In re Gabriel J.)

Supreme Court, Appellate Division, First Department, New York.Nov 29, 2012
955 N.Y.S.2d 18 (N.Y. App. Div. 2012)
955 N.Y.S.2d 18100 A.D.3d 5722012 N.Y. Slip Op. 8232

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2012-11-29

In re GABRIEL J., and Another, Dependent Children Under the Age of Eighteen Years, etc., Dainee A., Respondent–Appellant, O'Neil H., Respondent, Administration for Children's Services, Petitioner. In re Shawn J., Petitioner–Respondent, v. Dainee A., Respondent–Appellant.

Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.


Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, ROMÁN, GISCHE, JJ.


Order of disposition, Family Court, Bronx County (Jane Pearl, J.), entered on or about January 3, 2012, which, to the extent appealed from as limited by the briefs, granted the father's petition to modify a prior order of custody and the parents' 2008 agreement, and awarded the father sole legal and physical custody of the subject children, with supervised visitation to appellant mother, unanimously affirmed, without costs.

The court's determination that a “change of circumstances” had occurred warranting modification of the prior custody order, and that it would be in the children's best interests to award sole legal and physical custody to the father, has a sound and substantial basis in the record (Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004];see Matter of Carl T. v. Yajaira A.C., 95 A.D.3d 640, 641–642, 945 N.Y.S.2d 20 [1st Dept. 2012] ). Indeed, since the entry of the prior custody order, there has been a finding of neglect against the mother based on her failure to protect the children from the excessive corporal punishment inflicted on them by her former boyfriend. Despite this finding, the mother continued to assert that the children had lied about the abuse. Although the mother had completed a parenting skills program and participated in therapy, the record shows that she failed to improve her relationship with the children and did not have empathy for them. By contrast, the records shows that the children were comfortable with the father, were happy living with him, and were making progress under his care.

The court properly determined that supervision of the mother's visits is in the children's best interests ( see Matter of Arelis Carmen S. v. Daniel H., 78 A.D.3d 504, 911 N.Y.S.2d 49 [1st Dept. 2010],lv. denied16 N.Y.3d 707, 2011 WL 1120107 [2011] ), particularly given the evidence of her consistent pattern of destructive behavior toward the children, which continued even during supervised visits ( see Matter of Carl T., 95 A.D.3d at 642, 945 N.Y.S.2d 20).