IN RE: KYLE I. (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Delaware County (Gary A. Rosa, J.), entered March 30, 2023, which, among other things, granted petitioners' application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject child.

Petitioner Kyle I. (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of the subject child (born in 2020).  On November 20, 2020 – when the child was approximately one month old – the father and petitioner June J. (hereinafter the paternal grandmother) filed a petition seeking joint legal and physical custody.  The petition alleged that the mother had untreated mental health issues posing a risk to the child, had physically assaulted the father in the child's presence and was abusing prescription drugs.  That same day, Family Court (Northrup Jr., J.) issued a temporary order awarding petitioners joint legal and physical custody of the child pending further proceedings and granted the mother parenting time “as the parties may agree.”

In October 2021, the mother's application for a set parenting time schedule was denied.  During the course of the ensuing fact-finding hearing, a consent order was issued in October 2022, granting the mother supervised parenting time at the paternal grandmother's home pursuant to a set schedule.  Family Court also ordered a Family Ct Act § 1034 investigation at the request of the attorney for the child (hereinafter AFC), which culminated in an indicated report against the mother.  At the conclusion of the fact-finding hearing in March 2023, Family Court awarded the father sole legal and physical custody of the child ¹ and granted the mother a graduated parenting time schedule culminating in alternate Saturdays from 10:00 a.m. to 6:00 p.m. “in either a public or private place” and as further agreed by the parties.  The mother appeals.

Initially, the mother's arguments directed at the temporary orders are moot, for these orders were superseded by the March 2023 final custody order (see Matter of Lisa F. v. Thomas E., 211 A.D.3d 1367, 1368, 180 N.Y.S.3d 398 [3d Dept. 2022]).  Turning to the merits, “[t]he dispositive inquiry in an initial custody determination is the best interests of the child” (Matter of Megan UU. v. Phillip UU., 193 A.D.3d 1287, 1288, 147 N.Y.S.3d 719 [3d Dept. 2021];  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982];  Matter of Kody O. v. Maya P., 227 A.D.3d 1196, 1196, 210 N.Y.S.3d 364 [3d Dept. 2024]), which requires an evaluation of factors such as “maintaining stability in the child's life, the quality of the respective home environments, the length of time the present custody arrangement has been in place and each party's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development” (Matter of Barrett LL. v. Melissa MM., 224 A.D.3d 942, 943, 205 N.Y.S.3d 223 [3d Dept. 2024] [internal quotation marks and citations omitted], lv denied 42 N.Y.3d 905, 2024 WL 4507691 [2024]).  “This Court accords great deference to Family Court's factual findings and credibility determinations ․ and will not disturb its custodial determination if supported by a sound and substantial basis in the record” (Matter of Daniel XX. v. Heather WW., 180 A.D.3d 1166, 1167, 120 N.Y.S.3d 469 [3d Dept. 2020] [internal quotation marks, brackets and citations omitted]).

Deferring to Family Court's credibility determinations, we conclude that the award of sole legal and physical custody to the father is supported by a sound and substantial basis in the record.²  The evidence established that the father has been the child's primary custodian for virtually all of her life, has provided a stable and loving home environment, has attended to the child's needs, is employed and has the significant support of the paternal grandmother (see Matter of Anthony JJ. v. Joanna KK., 182 A.D.3d 743, 745, 122 N.Y.S.3d 725 [3d Dept. 2020]).  Correspondingly, there was testimony suggesting that the mother had seen the child only once since the commencement of this proceeding in November 2020 – a fact Family Court understandably found “[m]ost distressing” – was less equipped to provide a stable home environment and had engaged in violent behavior in the presence of her infant child (see id.).

Given the hearing evidence regarding the mother's minimal involvement in the child's life and ongoing concerns about the supervision of the older children in her care, we conclude that the parenting time schedule fashioned by Family Court – which does not provide for overnight parenting time – has a sound and substantial basis in the record (see Matter of Autumn B. v. Jasmine A., 220 A.D.3d 1073, 1077, 198 N.Y.S.3d 252 [3d Dept. 2023], lv. denied 41 N.Y.3d 901, 2024 WL 629849 [2024];  Matter of David v. Roseline W., 217 A.D.3d at 1114, 191 N.Y.S.3d 504;  Matter of Anthony JJ. v. Joanna KK., 182 A.D.3d at 745, 122 N.Y.S.3d 725;  Matter of Troy SS. v. Judy UU., 69 A.D.3d 1128, 1133, 894 N.Y.S.2d 186 [3d Dept. 2010], lv dismissed & denied 14 N.Y.3d 912, 904 N.Y.S.2d 690, 930 N.E.2d 764 [2010]).  In light of the passage of time and the lack of a record regarding any posthearing developments, the mother's requests for further modifications of the parenting time schedule are more appropriately raised in a petition filed in Family Court (see generally Matter of Steven OO. v. Amber PP., 227 A.D.3d 1154, 1158, 211 N.Y.S.3d 546 [3d Dept. 2024]).

We also find the mother's ineffective assistance of counsel claim to be unavailing.³  “To successfully maintain an ineffective assistance of counsel claim, a party must demonstrate that he or she was deprived of meaningful representation as a result of his or her lawyer's deficiencies” (Matter of Audreanna VV. v. Nancy WW., 158 A.D.3d 1007, 1010, 71 N.Y.S.3d 683 [3d Dept. 2018] [internal quotation marks and citations omitted];  accord Matter of Jacklyn PP. v. Jonathan QQ., 221 A.D.3d 1293, 1298, 201 N.Y.S.3d 300 [3d Dept. 2023]).  “Counsel's representation need not be perfect and, as it is not the role of this Court to second-guess counsel's trial strategy or tactics, a party seeking to prevail on an ineffective assistance of counsel claim must do something more than engage in hindsight speculation as to the viability of counsel's strategy” (Matter of Audreanna VV. v. Nancy WW., 158 A.D.3d at 1010–1011, 71 N.Y.S.3d 683 [internal quotation marks and citations omitted]).

Along with other asserted deficiencies, the mother faults counsel for allegedly failing to obtain documentation to support her claims that she had contacted the father about exercising her parenting time and missed certain visits with the child due to extenuating circumstances.  She also claims that counsel was deficient for failing to obtain documentation from her mental health providers and from the child protective services caseworkers involved in the child welfare proceeding pertaining to her older children.  The mother's assertion that such records would have been beneficial to her case is speculative (see Matter of Jacklyn PP. v. Jonathan QQ., 221 A.D.3d at 1298, 201 N.Y.S.3d 300;  Matter of Troy SS. v. Judy UU., 69 A.D.3d at 1134, 894 N.Y.S.2d 186).  “In the absence of sufficient proof to the contrary, the [alleged] failure to [obtain] these records may well have been a tactical decision” (Matter of Audreanna VV. v. Nancy WW., 158 A.D.3d at 1011, 71 N.Y.S.3d 683 [citations omitted]).  Although counsel did not make an opening or closing statement and did not call any witnesses on the mother's behalf, he cross-examined the father and the paternal grandmother, engaged in motion practice, and offered into evidence the February 23, 2022 order issued by Family Court in Broome County awarding the mother joint custody of her two older children, as well as photographs of her apartment.  On this record, we cannot conclude that the mother was deprived of meaningful representation (see Matter of Jacklyn PP. v. Jonathan QQ., 221 A.D.3d at 1298, 201 N.Y.S.3d 300).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Although the petition sought an order naming the paternal grandmother as the primary residential custodian, the father's attorney confirmed during the fact-finding hearing that he was actually seeking primary physical custody and the paternal grandmother supported this request.

2.   The AFC supports the award of custody in the father's favor (see Matter of David V. v. Roseline W., 217 A.D.3d 1112, 1113 n, 191 N.Y.S.3d 504 [3d Dept. 2023], lv denied 40 N.Y.3d 905, 2023 WL 6885682 [2023]).

3.   In January 2023, the mother wrote a letter to Family Court requesting new counsel, claiming that her attorney was not returning her calls.  Family Court denied her request that same day.

Lynch, J.

Garry, P.J., Egan Jr., Aarons and Ceresia, JJ., concur.