Opinion
1059 CAF 17–01440
10-05-2018
In the Matter of Jose M. VALENTIN, Petitioner–Appellant, v. Neyda R. MENDEZ, Respondent–Respondent.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR PETITIONER–APPELLANT. MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–RESPONDENT. CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR PETITIONER–APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–RESPONDENT.
CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following memorandum: Petitioner father appeals from an order modifying the parties' existing custody arrangement by awarding sole legal custody of the subject child to respondent mother and directing that the father's visitation with the child be supervised.
We reject the father's contention that Family Court erred in permitting the testimony of a nurse with respect to the cause of the child's injuries. "It is well established that [t]he determination whether to permit expert testimony is a mixed question of law and fact addressed primarily to the discretion of the trial court" ( Likos v. Niagara Frontier Tr. Metro Sys., Inc. , 149 A.D.3d 1474, 1475, 53 N.Y.S.3d 739 [4th Dept. 2017] [internal quotation marks omitted] ). Here, the nurse testified that she was licensed as a registered nurse and was certified as a sexual assault nurse examiner. She further testified that she had performed between 30 and 40 sexual assault examinations on children since receiving her certification and had also been training other nurses to be sexual assault nurse examiners. Consequently, we conclude that the court did not abuse its discretion in determining that the nurse was qualified to render a medical opinion (see Matter of Deseante L.R. [Femi R.] , 159 A.D.3d 1534, 1535, 72 N.Y.S.3d 713 [4th Dept. 2018] ; People v. Johnson , 153 A.D.3d 1606, 1606, 62 N.Y.S.3d 658 [4th Dept. 2017], lv denied 30 N.Y.3d 1020, 70 N.Y.S.3d 452, 93 N.E.3d 1216 [2017] ; Matter of April WW. [Kimberly WW.] , 133 A.D.3d 1113, 1116, 21 N.Y.S.3d 379 [3d Dept. 2015] ). To the extent that the father contends that the methods used to identify the causes of the child's injuries are not generally accepted within the scientific community, we conclude that his contention is not preserved for our review (see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
With respect to the court's award of sole legal custody to the mother, we conclude that the court failed to set forth " ‘those facts upon which the rights and liabilities of the parties depend’ " ( Matter of Russell v. Banfield , 12 A.D.3d 1081, 1081, 784 N.Y.S.2d 446 [4th Dept. 2004] ), specifically its "analysis of those factors that traditionally affect the best interests of a child" ( Matter of Graci v. Graci , 187 A.D.2d 970, 971, 590 N.Y.S.2d 377 [4th Dept. 1992] ). "[E]ffective appellate review ... requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses" ( Matter of Langdon v. Langdon , 137 A.D.3d 1580, 1581, 27 N.Y.S.3d 750 [4th Dept. 2016] [internal quotation marks omitted]; see Russell , 12 A.D.3d at 1081, 784 N.Y.S.2d 446 ; Graci , 187 A.D.2d at 971–972, 590 N.Y.S.2d 377 ). We therefore hold the case, reserve decision and remit the matter to Family Court to set forth its factual findings.