SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
252
CAF 14-00048
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
IN THE MATTER OF GREGORY O. BRANDON, SR.,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
BOBBIE L. KING, RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR RESPONDENT-APPELLANT.
Appeal from an order of the Supreme Court, Monroe County (Gail A.
Donofrio, J.), entered December 12, 2013 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, modified a prior
consent order by directing that the mother have limited supervised
visitation with the parties’ child, and otherwise continued joint
custody and primary physical residence with petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order that, inter alia,
modified a prior consent order by directing that the mother have
limited supervised visitation with the parties’ child, and otherwise
continued joint custody and primary physical residence with petitioner
father. The mother does not challenge Supreme Court’s determination
that there was a significant change in circumstances, and thus we
address only the issue whether the court’s custody and visitation
determination is in the child’s best interests (see Matter of Van
Court v Wadsworth, 122 AD3d 1339, 1340, lv denied 24 NY3d 916).
Although the court “erred in failing ‘to set forth those facts
essential to its decision’ . . . , ‘the record is sufficiently
complete for us to make our own findings of fact in the interests of
judicial economy and the well-being of the child[ ]’ ” (Matter of
Williams v Tucker, 2 AD3d 1366, 1367, lv denied 2 NY3d 705; see Matter
of Mathewson v Sessler, 94 AD3d 1487, 1489, lv denied 19 NY3d 815).
Upon our review of the relevant factors (see generally Eschbach v
Eschbach, 56 NY2d 167, 171-174; Fox v Fox, 177 AD2d 209, 210), we
conclude that it is in the child’s best interests that the father
retain primary physical residence and that the mother have limited
supervised visitation.
Here, the mother admitted that she had been on probation
following a conviction of endangering the welfare of a child for
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CAF 14-00048
leaving the child unattended, that she smoked marihuana while on
probation, and that she was arrested for possessing marihuana after
the police responded to a disturbance that occurred when the mother
went to the father’s residence in violation of an order of protection.
The mother also admitted that she pleaded guilty to harassment
following a “road rage” incident that resulted in a physical
altercation outside the vehicle while the child was in the back seat.
In addition, the record establishes that the mother was unable to
maintain a stable and safe home environment inasmuch as she moved
frequently, and she resorted to heating an apartment with an open
oven. Moreover, although the mother often volunteered in the child’s
preschool classroom and visited him during lunch, school staff members
testified that the mother was disruptive and argumentative during some
of the visits, and that there were instances of inappropriate
treatment of the child. The record establishes that the father also
engaged in various forms of improper conduct, often involving
mistreatment of the mother, but we nevertheless conclude that the
mother’s behavior consistently placed the child at risk, whereas the
father has provided a more stable home environment and is better able
to provide for the child’s emotional and intellectual development (see
generally Matter of St. Pierre v Burrows, 14 AD3d 889, 891-892).
With respect to the mother’s contention that she was denied
effective assistance of counsel, we note that, “ ‘because the
potential consequences are so drastic, the Family Court Act affords
protections equivalent to the constitutional standard of effective
assistance of counsel afforded defendants in criminal proceedings’ ”
(Matter of Brown v Gandy, 125 AD3d 1389, 1390). We are unable to
review the mother’s contention to the extent that it involves matters
outside the record on appeal (see Matter of Chamas v Carino, 119 AD3d
564, 565). To the extent that the record permits review of her
contention, we conclude that the mother did not “ ‘demonstrate the
absence of strategic or other legitimate explanations’ for counsel’s
alleged shortcomings” (People v Benevento, 91 NY2d 708, 712; see
Brown, 125 AD3d at 1390-1391).
Finally, the mother’s contention that the court violated her
constitutional rights is not preserved for our review (see Matter of
Beebe v Beebe, 298 AD2d 843, 843-844) and, in any event, it lacks
merit.
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court