Opinion
V-xxxxx-16
11-22-2016
In the Matter of a Custody/Visitation Proceeding Under Article 6 of the Family Court Act, Kevin S., Jr., Petitioner, v. Carima S. and Administration for Children Services (ACS) — Kings County, Respondents. Carima S., Petitioner, v. Kevin S., Jr. and ACS-Kings County, Respondents.
For the Father: Brian J. Zimmerman, Esq. For the Mother: Brooklyn Defenders, by Nila Natarajan, Esq. For the Child: Legal Aid Society, by Kelly Ballinger, Esq.
For the Father: Brian J. Zimmerman, Esq. For the Mother: Brooklyn Defenders, by Nila Natarajan, Esq. For the Child: Legal Aid Society, by Kelly Ballinger, Esq. Javier E. Vargas, J.
Papers Numbered Petitions, Affidavits & Exhibits Annexed 1 MHS Clinical Report & Exhibits in Evidence 2 Court Transcripts of Proceedings 3
This Court, having presided over the instant full evidentiary custody hearing spanning four days, having heard the witnesses who testified at trial, having examined the Petitions and exhibits in evidence comprising hundreds of pages, and having listened to counsel's arguments, hereby makes the following findings of fact deemed established by the evidence and reaches these conclusions of law.
I.
On August 6, 2009, Respondent-Mother Carima S. (hereinafter "Mother") gave birth out- of-wedlock to the subject Child of these proceedings in Riverdale, Clayton County, State of Georgia, and Petitioner-Father Kevin S., Jr. (hereinafter "Father") immediately executed the equivalent to an Acknowledgement of Paternity in Georgia to appear on her Birth Certificate. Father and Mother were married on January 11, 2010, in Clayton, Georgia. Shortly thereafter, on January 20, 2010, Father enlisted with the U.S. Army reportedly in order to take advantage of a free education for himself as well as health care, life insurance and better opportunities for his family. The family lived together in Virginia for the next twelve months, and then moved to El Paso, Texas, where he was stationed.
Marital difficulties apparently ensued around 2012. On June 18, 2013, Mother filed a report with the Texas Department of Family and Protective Services accusing Father of sexually abusing the Child by "eating her vagina." After an investigation by that Department, Mother's allegations against Father were "ruled out" and disposed as unfounded, and no further protective service involvement was deemed necessary, as evidenced by a Texas' Request for Removal of Role Information dated June 18, 2013, submitted into evidence. In August 2013, Mother was diagnosed with depression and prescribed the well-known medication, Wellbutrin, but she discontinued its use. Around September 2014, the parties physically separated because Father was deployed to a military base in the Country of Germany, but Mother and the Child preferred to remain in Texas. This separation and ensuing talk of divorce appeared to have deeply affected and was "taking a toll" on Mother.
Because of concerns about her mental well-being, in September 2015, Mother's brother, Abdul B., came to get her and the Child to relocate with his family to Atlanta, Georgia, apparently unbeknownst to Father. Tensions eventually arose between Mr. B.'s family and Mother. On June 6, 2016, Mother and the Child were prompted to move to Brooklyn, New York, where the Maternal Aunt, Zahirah B., and other relatives currently live. According to reports, Ms. B. was also concerned about Mother's "decompensating" mental state. Mother became unemployed and moved with the Child to a homeless shelter in East New York, Brooklyn, despite receiving a monthly basic allowance of $1,200 from Father's military pay.
At least as early as 2015, Father became concerned about his family because he was unable to locate or contact Mother, other than repeatedly and unsuccessfully emailing her requesting her and the Child's address. On February 17, 2016, he wrote to Mother expressing his concerns for their safety and warning that his next step given her silence would be "to contact the local authorities in Texas and Georgia with [their] full names and filling a missing persons case. I hope everything is ok." On February 18, 2016, Mother finally answered Father's emails stating that they were safe, but that he should increase her maintenance allotment of $1,200 per month. Father answered Mother's email by declining to increase their allowance and telling her that he was filing for divorce in Texas, her last known address, and was going to ask for custody of the Child given Mother's prior behavior. Mother perplexedly answered in an email as follows:
Full custody of female children by a male parents [sic] is a gay right move and if you send that corny paperwork to Texas knowing I don't live there, it'll be opened up by someone, they are going to track you down and use your address to stalk you and blame you so don't forget the return address
In September 2016, Respondent New York City Administration for Children Services ("ACS") became involved with Mother as a result of a report concerning her poor guardianship of the Child and her many school absences. Specifically, on September 16, 2016, ACS Child Protective Specialist Regine Boutin went to gather information and interview Mother, who complained that everybody was bothering her at the shelter and that Father was not helping her or providing any support for her family in order to have sufficient money for clothes or food. The CP Specialist wrote in her ACS Intake Reports and testified that Mother was observed talking to herself and laughing, leaving the Child unsupervised, and lacking food at the home. The CP Specialist continued making biweekly visits to check on the Mother, during which times she complained that "ACS is making [her] crazy," that the shelter people were not giving her and the Child any food despite all the money made by the shelter, and that it was ACS's fault that she did not have food at home because they will eat her food.
According to CP Specialist Boutin, Mother would engage in unexpectedly "bizarre" and "off the wall" conversations when confronted about the issues, such as: saying that the CP Specialist was the "devil;" accusing her of having an affair and sleeping with Father, who was in Germany at the time; asking her when her "last pap smear" test was and whether she was having a "yeast infection;" and stating that she had a degree as a vocational nurse and was only dressing down at the shelter because other people dressed like that.
With respect to the Child's school absences, the CP Specialist wrote in her Report and testified that Mother confirmed that the Child was absent from school for six days of the first eleven days of school, and was two hours late to school on the days she attended, allegedly because the Child would not wake up, took a long time to get ready and did not own a uniform. According to the school authorities, the Child had missed preparatory testing and was failing academically as a result of her continuous absences. On another occasion when the Child was absent from school, CP Specialist Boutin testified that she went to the shelter where she found Mother sleeping with the Child without providing a good reason for her staying at home, instead stating that she needed food stamps and that the Child was being bullied and doing poorly in school academically.
To the contrary, the CP Specialist wrote and testified that the Child denied Mother's statements of being bullied and instead reported loving the school and the shelter, because of all the new friends and constant company. Since their days in Georgia, the Child confirmed that Mother had "acted weird" sometimes speaking to herself daily, having outbursts of laughter, not having food at home, and that once she did not eat all day, but that her neighbors would give her food on the occasions she was hungry. The Child said to the CP Specialist that sometimes she has to shake her Mother and yell "mommy" for her to hear or pay attention to the Child. Throughout the ensuing weeks, ACS arranged for the provision of services to Mother to deal with each of their concerns, including weekly mental health referrals, school uniforms and books for the Child, help applying for public assistance, and even offered to go groceries shopping with her. However, the CP Specialist and the Shelter Caseworker testified that Mother failed to avail herself of those services, while continuing to keep the Child from her schooling. They warned Mother that if these issues continued unabated, ACS would ask for the Child's removal from the home.
As a result, by Neglect Petition dated October 13, 2016, the ACS Commissioner commenced a neglect proceeding against Mother, alleging that the Child's physical, mental and emotional condition have been impaired as a result of Mother failing "to exercise a minimum degree of care" by not providing: (1) an adequate education for the Child by failing to take her to school several days or bringing her two hours late every day she attended school, and picking her up an hour to an hour-and-a-half after classes had been dismissed, as result of which the Child was currently failing in school; and (2) proper supervision and guardianship to the Child in that Mother behaves in a bizarre manner by laughing and talking to herself, failing to have sufficient clothing and food in the home for the Child on repeated occasions. Among other allegations, the Petition also alleged that Mother had been diagnosed with major depression in July 2016, and was referred to meet with a therapist on a weekly basis, but that she had failed to keep her sessions, stating that "she is not going to participate in therapy until someone gives her food and finds her a job." The Petition further related that, on September 15, 2016, Mother admitted to ACS "that she threw out all her food in the home because she ran out of dishwashing liquid and could not wash any dishes."
Following an emergency application by ACS to remove the Child's from Mother's custody, Kings County Family Court Judge Elizabeth Barnett conducted a preliminary imminent risk hearing pursuant to Family Court Act § 1027, concluding that continuation of the Child's residence with Mother "would be contrary to the welfare and best interests of the Child, and that temporary removal" is necessary to avoid imminent risk to her life and health. By Order dated October 14, 2016, the Court (Barnett, J.) ordered the Child placed in the custody of ACS, finding that "reasonable efforts to prevent or eliminate the need for removal were made," in that in the past month, Mother has exhibited increasingly bizarre behavior, failed to feed the Child, "was referred to mental health services and offer[s] w[ere] made to provide groceries, but she declined [all preventive services]."
Upon executing the Removal Order, CP Specialist Boutin related that Mother was very belligerent, tried to attack her and accused her of being the "devil" and "having a yeast infection." Although the Child was initially upset after the removal, the CP Specialist testified that the Child confided to her in the ACS van that she was happy to be away because she "can finally get a break" from taking care of Mother and that her Mother "needed help." The Child was also excited that ACS provided her with toys and food. The Court then directed the Child to remain at ACS Children's Center until the home of the Maternal Aunt was explored and cleared as an appropriate resource for her. Father was notified in Germany of the Child's removal by the CP Specialist. Immediately upon learning of ACS's assumption of custody of the Child, Father obtained a military leave from his German base station and traveled to New York on October 14, 2016. The Court permitted him to have liberal unsupervised visitation with the Child that weekend, and by Order (Barnett, J.) dated October 17, 2016, the Child was temporary released to the care of Father under the neglect proceeding.
Contemporaneously, by Petition dated October 17, 2016, Father commenced the instant proceeding against ACS and Mother pursuant to Family Court Act Article 6, seeking an award of sole legal and physical custody of the Child, alleging that he is her biological father, loves the Child, "is better suited to provide her with a nurturing, loving, stable home" and "can attend to all decisions that affect the well-being of the Child, including educational, medical, religious and everyday needs of the child. [He] maintains a safe, loving and stable home for his Child to reside and grow in." By Order dated October 18, 2016, the Court (Barnett, J.) dismissed the Neglect Petition against Mother based on ACS's withdrawal of the proceeding, and referred the custody determination to the Undersigned for an expedited hearing, given Father's imminent return to Germany.
Subsequently, by Petition dated October 18, 2016, Mother also filed for custody of the Child, stating in toto, as reflected on her handwritten supporting notes, that:
"She is the biological Mother and they are almost an identical pair, and carry the same affect and that she is very apt to the subject Child's needs as the subject Child is very intuitive about their emotional responses and needs. * * * She and the subject Child take care of each other as eternal "amigas," and it would be best if they stay in the same home as they continue to develop their intriguing characteristics while contributing to the human race. (On a side note, we are also concerned about molestation, rape and domestic violence) as she fears that [Father] has molested the subject child and is concerned for her safety."More baffling are her allegations in a Family Offense Petition filed concurrently, which reads:
[Mother] has gotten psychiatric treatment to keep [Father] from using coercive fear tactics to maintain a hostile environment and the subject Child can't maintain composure or grace around [Father], as she becomes forgetful and hesitant. [Mother] states that [he] bought a gun when they lived in El Paso, Texas, which caused a more hostile environment. [She] states that [Father] filed for Full Custody of the subject Child, while she looks identical to [Mother], and it makes [her] feel like she is seeing herself being dragged off and raped all over again."Faced with the bizarre allegations, no Temporary Order of Protection was issued against Father in favor of the Child or Mother. Despite this Court's entreaties on behalf of the Child, no settlement was reached by the parties. II.
On October 26, 2016, the Undersigned presided over a full evidentiary custody hearing which spanned over four days where Father, Mother, the Maternal Aunt, CP Specialist Boutin and the Shelter Caseworker testified. The Court also made available to the parties the Director and Chief Psychologist of the NYC Health & Hospital Corporation's Family Court Mental Health Services ("MHS"), Dr. Adam Bloom, who had co-authored a Clinical Report, ordered to be expeditiously completed by the undersigned given the undisputed mental health issues of Mother (see Matter of Sanchez v Russo, 124 AD3d 904, 906 [2nd Dept. 2015]). Faced with the Clinical Report's conclusions, the Court offered the appointment of a Guardian ad Litem for Mother, but her counsel declined, stating that Mother was sufficiently competent and lucid.
In addition to the abovementioned testimony by CP Specialist Boutin, the Case Manager of Mother's homeless shelter, Ms. Johary Garbey testified that she acts as a caseworker helping the shelter inhabitants with their Public Assistance cases, finding them employment, meeting weekly and inspecting the units and the families. She was tasked with investigating why the Child was not going to school and, upon interviewing Mother, she discovered that the Child was in fact absent several days from school and that food "was scarce" at her home. She provided them with some emergency food and assisted Mother with her public assistance application, which eventually amounted to $200 monthly benefits. From time to time, Ms. Garbey testified that she would offer Mother food from the shelter's pantry, but that she would "reject it as not good enough." Ms. Garbey also arranged for the Mother to have uniforms for the Child from the school authorities, and an alarm clock to help her get up to take the Child to school, but Mother's behavior continued unchanged.
Ms. Garbey further testified that she was concerned about Mother's "decompensating" mental state given her "confusing" statements, conduct and problems with the Child. On several occasions, she testified — consistent with the CP Specialist — that Mother will answer her inquiries about why the Child was not going to school with "incongruent" and "random conversations," such as that she dressed poorly because other people at the shelter were jealous of her; that she will be wealthy upon the issuance of her divorce from Father; and that she did not like to be offered cranberry juice at the shelter because that was used to "treat yeast infection," which she did not have.
Next to testify was Father, who in addition to some of the factual recitation above, testified that the family went to live to Virginia for twelve months after his enlistment and then to Korea, prior to settling in El Paso, Texas, from where he was deployed to Germany. He stated that Mother disappeared for a while in 2015, during which time he stopped sending her the monthly allowance, but that he created a Facebook page and was constantly looking for her and the Child until he learned of their Brooklyn residence in September 2015. However, he credibly testified that he was unaware of Mother's problems until receiving CP Specialist Boutin's telephone call in early October 2016 while stationed in Germany. He testified that Ms. Boutin told him that the child was in danger of being in foster care because of Mother's decompensating behavior, which he witnessed when he heard Mother yelling and accusing the CP Specialist of "sleeping with her husband." He subsequently had an alarming conversation with Mother during which she was making "bizarre statements" and would "not stay in topic." At the same time, he was also puzzled about Mother's residence at a shelter given her numerous relatives and his monthly allowance. Because of his concerns about the Child, Father was granted an emergency military leave and immediately came to the U.S. to stay for several weeks.
Prior to his departure from Germany, Father testified that he explored the family options existing at the German base where he is stationed until September 2017, and visited its family housing, schools and medical facilities. He was making plans to live at one of the family units with the Child and spoke to the teachers and principal, got school supplies and characterized the atmosphere and children attending there as a "normal American school." According to Father, single and married parents have children living at the base, are treated well and enjoy several activities throughout the year, like Christmas parties, Easter egg hunts, gym games, running teams and other fun activities for children.
Furthermore, Father credibly testified to having the financial means to care for Mother and the Child, to be willing to foster the Child's relationship with Mother, making sure that if he is given custody the Child will use Skype video or any other forms of electronic communication to maintain contact, and that he will come to U.S. during vacations to enable Mother to see and visit with the Child. Indeed, Father testified that, despite their history, he will welcome Mother to live in Germany with him, and get the medical and other help she needs at the base. The Child, according to Father, has been very happy living with him for these last weeks because she eats every day, wants to go to school and be with him and new friends. All these statements are fully corroborated by the Child's conversations with the Attorney for the Child.
On cross examination, Father acknowledged that the parties separated in 2012 and that he has not lived with the Child as a family since 2014. Other than these last weeks, Father has never been the Child's sole caretaker, never found a pediatrician or school for the Child or made her meals. However, Father strongly expressed his desire to take the Child to Germany to improve her future and provide for all her needs. He was staying at the Maternal Aunt's home with the Child, but left to stay at a hotel because Mother kept showing up uninvited, disrupting his custodial arrangements and questioning his intentions.
On further cross examination, the Attorney for the Child elicited Father's testimony to the effect that the Child is in excellent health, that he has already purchased clothing and all her favorite foods for the Child, learning that she loves Popeye's and Subway Sandwiches. Father explained that he only stopped sending Mother money for the Child in 2015 because he did not know her address. He has already spoken to the Child about the schools in Germany and related that she was excited and wants to take guitar lessons there. According to Father, the Child had repeatedly expressed her concerns that Mother gets the help that she needs and wants to continue in contact with her.
Those concerns are similarly reflected in the MHS Clinical Report of Mother, who is described as exhibiting "symptoms of mania, including grandiosity, pressured speech, and a flight of ideas. Her thought processes also impressed as psychotic. She spoke tangentially and some of her thoughts impressed as odd, bizarre and nonsensical at times." In relevant part, the Report concluded that:
[Mother] appears to lack insight into her mental illness and "decompensating" mental health, and does not appear to appreciate its impact on her parenting ability. [The Child] has been removed form [Mother]'s care due to concerns about her ability to care for her. [Mother] acknowledged that she did not take [the Child] to school regularly because she was "frustrated" by the schooling and "disturbed" that the teacher gave out homework during the Jewish High Holidays (though [Mother] is not Jewish), which appears related to [Mother]'s distorted thought process. She stated that in 2013 she was once purposely physically aggressive toward [the Child], by grabbing her by her shirt and shaking her so that [the Child] would "know [her] dad is mimicking aggressive behavior" after he returned home on military leave. She was also concerned that [the Child] "had an evil spirit that got at her" and noted that she wanted to "hurt" [the Child] to show her that she needed to pay close attention to [her], so that she would not get "defiled" by a "sex offender" (these explanations impressed as nonsensical to this examiner). Also of concern is that [Mother] indicated that she has given [the Child] alcohol on occasion, approximately a half-ounce of wine, so that she does not feel left out when [Mother] drinks.
After Father rested his case with the admission of the MHS Clinical Report, only Mother and her sister, Ms. Beyah, testified on her behalf. This is telling because Mother's counsel had previously offered a medical expert report by Dr. Jackson, Mother's therapist from the Metropolitan Hospital, but she declined to submit the same. In her testimony in chief, Mother testified that the Child has always lived with her since birth and prior to the removal. Mother describer her relationship with the Child as loving, that they "hang out" and get along like best friends or "amigas," getting manicures and pedicures, going swimming together, coloring books, "do[ing] each other's hairs," reading and writing paragraphs on their journals. She recognized that she is dependent on Father's monthly payments as well as public assistance and food stamps, but that the assistance is never enough. She applied for a New York City Housing Authority (NYCHA) apartment, which after an interview she was assured that she will get in three weeks.
With respect to the Child's schooling, she testified to enrolling the Child in a Brooklyn school at the insistence of the shelter in June 2016. "They forced me to put [the Child] in school," according to Mother, but that she wants to enroll the Child in a gifted and talented program, maybe in Queens, where she wants to get better housing. According to Mother, during the last weeks, she has been trying to get the Child to school in time, but has been unsuccessful because she "has not been sleeping" well over concerns about whether the Child should attend the assigned school or not. She additionally explained that the Child takes a long time to get ready for school, getting her hair done, blow-drying her hair, getting her clothes ready and deciding whether to eat breakfast at home or to go out for breakfast. Then she testified that Dr. Jackson, her psychologist, has already gotten some blood tests, vaccines and HIV testing for the Child's school year.
Mother further testified that she "mostly communicates" instead of punishing the Child when she misbehaves, because she wants to "facilitate her understanding" of what she did wrong; she does not discipline, but tries to "work out the kinks with her." After the removal, Mother testified that she went to "hang out with her sister" during a supervised visit with the Child at the Maternal Aunt's house, but that because the Child was "a little distant," Mother "dozed off" and fell asleep during the visitation. Mother stated that she has not seen the Child for one week and does not know how she is doing and whether she is eating "potato chips." As such, Mother has come uninvited to Father's house to bring "potato chips, cookies, egg salad" for the Child, but that Father has declined her food offerings. Although she claims that there is no internet access at the shelter, she acknowledged going to the library "to test internet services" and establish some access.
On cross examination, Mother acknowledged that she has many family members who have internet access and can facilitate her electronic communications with the Child, should the need arises. Then she went on a tangent testifying that she does not know who her real father is, but that she has sometimes asked "her father," Anthony Mitchell, for money. Mother acknowledged that the Child was absent six out of the first eleven days of school because she was not excited about nor liked the school, so she "didn't dress pretty." Mother said that she has been "home schooling" the Child, who has "not been missing that much time" in school. She further stated that she had a "weed plant" and have given wine to her seven-year-old Child. Calling Father "that creature," she accused him of giving beer to the Child.
The Attorney for the Child cross-examined Mother about her own mother and admitted that she had suffered from Schizophrenia when Mother was a child. However, Mother denied having any mental health issues or needing any treatment or medication herself. She testified to never having been medicated for mental issues, but believes that she is suffering from harassment from Father and him "getting on her nerves" because of the instant custody proceedings. The Maternal Aunt was the last to testify, stating that the Child loves her, gets "really happy" upon seeing her and that Mother had visited with the Child at her home three times since the removal. She characterized the visits as "normal." Father stayed with the Maternal Aunt and the Child for one week, but then went to a hotel. It should be noted that no documentary evidence whatsoever was introduced by Mother, who then rested. III.
At the conclusion of the trial, Father summed up contending that he should be granted custody of the Child given, inter alia, his sincerity, maturity, the stability of his environment and future plans for the Child. He argued that Mother has mental health issues and has repeatedly attempted to interfere with his ability to maintain a normal relationship with the Child by, for instance, falsely accusing him of sexually abusing her and refusing to reveal their address for several months. Although he will be in Germany until September 2017, Father promises to foster the Child's relationship with Mother and offered to give her all school vacation periods as visitation with her in New York. In opposition, Mother argued for the first time after trial that the Court should only issue a temporary order awarding her custody of the Child as she has been the continuous de facto custodian for almost three years and courts usually favor the status quo unless the advantages of a change greatly outweigh continuity and stability. For her part, the Attorney for the Child asked the Court to issue a final order of custody of the Child in Father's favor as not only legally supported, but as the expressed desire of the Child. Under the extant circumstances, this Court agrees with Father and the Attorney for the Child.
When called upon to make an initial custody and visitation determination, trial courts must determine the best interest of the child by reviewing "the totality of the circumstances" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]; see Eschbach v Eschbach, 56 NY2d 167, 174 [1982]). The court's determination "depends to a great extent upon the character, temperament, and sincerity of the parents" (Blanco v Corbett, 8 AD3d 374 [2nd Dept. 2004]), as well as their mental health (see Matter of Defayette v Defayette, 28 AD3d 820, 821 [3rd Dept. 2006]; Matter of Kamholtz v Kovary, 210 AD2d 813, 814 [3rd Dept. 1994]). Other factors to be carefully considered in making a custody determination include: the quality of the home environment; the ability of each parent to provide for the child's emotional and intellectual development; the financial status and stability of each parent to care for the child; the child's wishes; the relative fitness of the respective parents (see Matter of Anson v Anson, 20 AD3d 603, 604 [3rd Dept. 2005], lv denied 5 NY3d 711 [2005]); and their ability to affirmatively foster a meaningful relationship with the other parent (see Fauntelroy v Mercado, 5 AD3d 482 [2nd Dept. 2004]; Barbato v Barbato, 264 AD2d 792 [2nd Dept. 1999]).
Applying the foregoing legal principles to the matter at bar, the Court finds that the best interests of the Child will be served by granting custody to Father at this time. It is apparent that both parents care and love the Child and are concerned for her welfare in their own ways. However, it was Father who testified in a credible, lucid and mature manner, who traveled from a distant location demonstrating a willingness to put the Child's interests ahead of his, and who showed true concern for her well-being and provided concrete plans for her future. Although Mother was the primary caregiver of the Child during the marriage and separation, she has recently shown a history of poor decision-making, including her frequently-changing employment, residence and living arrangements, her incrementally bizarre behavior and — more important to this Court — her failure to assure the Child's well-being, education and alimentation. Her statements and conduct have demonstrated a basic misapprehension of the role of a parent of a seven year-old as opposed to a friend or "amiga" — as she repeatedly characterized her relationship with the Child. This Courts feels that Mother selfishly places more importance in hanging out or sharing a manicure and pedicure with the Child than in her proper guardianship and education. These are some of the most basic needs of a Child, which Mother is flunking.
In stark contrast, Father has always maintained a stable employment with the military, has financially provided for the Mother and Child, and has previously planned for the family's well-being and future. Even before arriving to New York, he sensibly explored the family facilities at the base and made plans to create suitable living and schooling arrangements for the Child and Mother in Germany. Particularly since acquiring court-ordered physical custody in October 2016, Father has demonstrated a firm and mature commitment to the Child's welfare, fostering visitation with Mother and insuring that the Child obtains all necessary medical checkups, prepares for any new school and obtains a passport. Moreover, according to the Attorney for the Child, the Child is happy, thriving and loving being with Father, as she does not feel responsible to care for Mother anymore and can enjoy her childhood.
That is the overarching concern of this proceeding: Mother's undisputed mental issues and their effect on the seven-year-old Child, who has acted essentially as "the leader" of their relationship. The instant decision is not merely a comparative fitness evaluation of two similarly situated parents. The unchallenged testimonial and documentary evidence demonstrate that Mother has not adequately dealt or knows how to cope with her depression, which was detected as early as August 2013. Although she denied being diagnosed at that time, she conceded being prescribed Wellbutrin for her "depression." Not only the CP Specialist, Shelter Case Manager and Father, but also the Maternal Aunt and Uncle, all have acknowledged and expressed concerns at one time or another about Mother's "bizarre behavior," "off the wall" comments and her recent and incremental decompensation. The ACS Intake Reports provide a picture of almost daily, incrementally decompensating behavior by Mother, which was further documented by the undisputed MHS Clinical Report submitted in evidence to the Court. While her counsel studiously avoided dwelling upon Mother's mental health issues, she utterly failed to submit any rebuttal in the form of medical or psychological testimony or any evidence whatsoever. Not even the Maternal Aunt was questioned about the Mother's mental issues, or about her previously expressed and recorded concerns about Mother.
Nevertheless, this Court itself had the opportunity to witness Mother throughout the proceedings, hear her testimony and carefully observe her demeanor. Her affect, statements and thinking — albeit calmed and composed — sometimes seemed incoherent and disjointed. For instance, she always came to court wheeling a small suitcase, which on one occasion she inexplicably emptied on the defense table to reveal several small bags of cookies, potato chips and miscellaneous things; she displayed an obsession with "yeast infection" and "potato chips" by mentioning them several times to different witnesses; and appeared to assert that no school was good enough for her Child, despite no proof whatsoever that she is in fact gifted or otherwise exceptional. No evidence was submitted to support her conclusory statements that she will be shortly getting a NYCHA apartment, that she will move to Queens or that the Child had been accepted to a gifted and talented school program. They seemed like daydreams made out of whole cloth by Mother, without any basis in reality, expressed merely to impress her listeners.
Although proof of mental illness by itself will not deprive someone of custody or support a finding of neglect (see Matter of Alexis S.G. [Shanese B.], 107 AD3d 799 [2nd Dept.]), Mother appears to not only be suffering from mental issues, but has failed to recognize the effects such untreated condition is actually having on her parenting. As reflected on the record, Mother has been behaving erratically, speaks and laughs by herself, leaves the Child unsupervised after school hours, and has failed to ensure her daily feeding and regular attendance to school. This Court is persuaded from the record that Mother is neither a stable nor responsible parent, and it cannot - and will not - stand idly passively watching while the Child faces genuine threats to her physical, mental and emotional well-being, as the Mother continues to decompensate before our eyes. Nor will this Court merely make a temporary custody determination, as Mother's counsel unexpectedly claimed at the conclusion of the trial.
At that time, Mother's counsel argued that the court presiding over the Neglect Petition referred the matter to the Undersigned only for an expedited hearing and temporary custody determination. Both Father and the Attorney for the Child disagreed with that characterization, convincingly arguing that there was no such conditional referral. Nor is that view, following a full evidentiary hearing, supported by precedent. It is well-settled law that "[c]ustody of children should be established on a long-term basis, whenever possible; children should not be shuttle back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustments, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian (Matter of Lang v Lang, 9 AD2d 401, 409 [1st Dept. 1959], affd 7 NY2d 1029)" (Obey v Degling, 37 NY2d 768, 770 [1975]).
Here, given its presiding over a lengthy proceeding and hearing testimony from several witnesses, this Court would be remiss were it to make a temporary custody determination which may not only be legally suspect, but more importantly not in the Child's best interests. Unlike in matrimonial actions where temporary orders of custody are de rigor given the long pendency of determinations of equitable distribution, business valuations, maintenance and other ancillary issues, the Family Court is primarily concerned with making a long-lasting custody determination that is in the best interests of the Child. This is a fortiori given Mother's decompensating behavior, damage already caused to the Child by the lack of regular meals, missing formative classes and taking care of a sick parent. In any event, Mother has not pointed out to this Court what additional witnesses or information would be provided in the foreseeable future in order to make a more complete and final determination.
In accordance with the foregoing, the Court finds that the best interests of the Child will be better served by awarding Father a final order of sole physical and legal custody of the Child and permitting him to take her to Germany. It should be stressed that this departure out of the country is not a permanent relocation, since Father will be stationed there only until September 2017, so there is no necessity for a full relocation examination (see Matter of Troppea v Troppea, 87 NY2d 727 [1996]). Nonetheless, this Court is not unsympathetic to Mother's plight in experiencing the Child's parting, even if temporarily, but safeguarding the Child's best interests is paramount to the Undersigned. Significantly, the award of primary custody to Father is in accord with the position advocated by the Attorney for the Child and the Child's own wishes (see Matter of Gregio v Rifenburg, 3 AD3d 830, 832 [3rd Dept. 2004]; Matter of Gonya v Gonya, 298 AD2d 636, 637 [3rd Dept. 2002]).
In light of Mother's untreated mental health issues, she is hereby granted supervised visitation with the Child, to be supervised by either Father, the Maternal Aunt or any other mutually agreed upon resource (see Moor v Moor, 75 AD3d 675 [3rd Dept. 2010]; Berham v Vessia, 63 AD3d 1155 [2nd Dept. 2009]). Mother is also permitted to communicate with the Child without interference or monitoring by telephone, email, Skype and any other available electronic communication methods during reasonable hours. Father shall arrange for Mother to be given access to information about the Child's schooling, medical information and records, religious education, extracurricular activities and the name and contact information of physicians and/or therapists. Mother shall also have any additional supervised visitation as agreed upon between the parties, including visitation with the Child during school vacations in New York as arranged upon by the parties. As suggested by Father, Mother shall be always free to visit with the Child in Germany as arranged by them.
Having conducted a full custody hearing, the Court will retain "exclusive, continuing jurisdiction" under the Uniform Child Custody, Jurisdiction and Enforcement Act (UCCJEA) as the "more convenient forum" for making any modifications of this Order as requested by Mother or Father should the best interests of the Child so require (Domestic Relations Law § 76—b[1]; see Stocker v Sheehan, 13 AD3d 1, 6 [1st Dept. 2004]). IV.
In accordance with the foregoing, Father's Petition is granted and he is awarded sole physical and legal custody of the Child, subject to Mother's supervised visitation as enumerated hereinabove. Mother's Petition for Custody is denied and hereby dismissed. This constitutes the memorandum decision and order of the Court, concluding this matter. E N T E R: Dated: November 22, 2016 Brooklyn, New York Hon. Javier E. Vargas J.F.C. NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.