Brown v. Simon

• Decision Date: 16 June 2021
• Docket Number: Docket Nos. V–9936–12/12A,12B,12C, 12/18P,Q, , V–9937–12/12A, 12/18J,K,L, V–4633–14, 14/18B,C ,2019–05934, V–2634–16, O–9733–15
• Citation: 151 N.Y.S.3d 71,195 A.D.3d 806
• Parties: In the Matter of Matthew BROWN, appellant-respondent, v. Shanna SIMON, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 806
151 N.Y.S.3d 71

In the Matter of Matthew BROWN, appellant-respondent,
v.
Shanna SIMON, respondent-appellant.

2019–05934
Docket Nos. V–9936–12/12A,12B,12C, 12/18P,Q,
V–9937–12/12A, 12/18J,K,L
V–4633–14, 14/18B,C
V–2634–16, O–9733–15

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 13, 2020
June 16, 2021

151 N.Y.S.3d 74

Lisa Colin, White Plains, NY, for appellant-respondent.

Gretchen Mullins Kim, P.C., Yonkers, NY, for respondent-appellant.

Eve Bunting–Smith, White Plains, NY, attorney for the child.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In related proceedings, inter alia, pursuant to Family Court Act article 6, the father appeals, and the mother cross-appeals, from an order of the Family Court, Westchester County (Arlene Katz, J.), dated April 30, 2019. The order, insofar as appealed from, after a hearing, (1) denied that branch of the father's petition dated September 6, 2012, which was, in effect, to modify a prior order of the same court entered August 14, 2012, on consent of the parties, so as to award him sole legal custody of the subject child, and (2) granted the mother's petitions, in effect, to modify the order dated August 14, 2012, to the extent of awarding her a minimum of eight hours per week of supervised, therapeutic parental access with the subject child, and directing the father to pay 80% of the cost of that supervised, therapeutic parental access. The order dated April 30, 2019, insofar as cross-appealed from, after the hearing, (1) granted that branch of the father's petition which was, in effect, to

151 N.Y.S.3d 75

modify the order dated August 14, 2012, so as to award him sole physical custody of the subject child, and (2) granted the mother's petitions, in effect, to modify the order dated August 14, 2012, only to the extent of awarding her a minimum of eight hours per week of supervised, therapeutic parental access with the subject child, and directing the father to pay 80% of the cost of that supervised, therapeutic parental access.

ORDERED that the order dated April 30, 2019, is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof granting the mother's petitions, in effect, to modify the order dated August 14, 2012, only to the extent of awarding her a minimum of eight hours per week of supervised, therapeutic parental access with the subject child, and directing the father to pay 80% of the cost of that supervised, therapeutic parental access, and substituting therefor a provision granting the mother's petitions, in effect, to modify the order dated August 14, 2012, to the extent that (a) the mother is awarded liberal, unsupervised parental access, which may be exercised, in whole or in part, in the mother's sole discretion and without prejudice to her, in a supervised, therapeutic setting; (b) the father is directed to pay 100% of the mother's parental access expenses, including travel expenses and expenses incurred in connection with any supervised, therapeutic parental access between the mother and the child; (c) the father is directed to engage the subject child in weekly reunification therapy or other professional counseling with the goal of rebuilding the relationship between the mother and the subject child; (d) the father is directed to pay 100% of the expenses associated with the weekly reunification therapy or other professional counseling directed herein; and (e) the parties are prohibited from making derogatory or denigrating statements concerning each other in the subject child's presence or in the presence of those who have contact with the child; as so modified, the order dated April 30, 2019, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, the order dated August 14, 2012, is modified accordingly, and the matter is remitted to the Family Court, Westchester County, for a hearing to be held with all convenient speed to establish an appropriate liberal unsupervised parental access schedule for the mother, and to arrange and supervise professional counseling for the subject child, consistent herewith.

The parties are the parents of the subject child (hereinafter the child), who was born in September 2010. Shortly before the child's birth, the mother moved into the father's home with her then-eight-year-old daughter from another relationship (hereinafter the child's older sister or the older sister).

In March 2012, the mother informed the children's daycare provider that the child's older sister had been sexually assaulted by a family member. The mother and the children moved out of the father's home in June 2012, and they moved in with the children's maternal grandmother.

Thereafter, on August 14, 2012, the parties entered into an agreement to share joint legal custody of the child, with the mother to have sole residential custody and the father to have liberal parental access with the child. That agreement was embodied in an order entered on consent of the parties on August 14, 2012 (hereinafter the so-ordered stipulation).

Sometime in August 2012, the father told the child's pediatrician, Georgina Lester, that the child was crying and fussing when her diaper was being changed by her daycare provider. Lester, after being told

151 N.Y.S.3d 76

that the child's older sister had been sexually assaulted, advised the child's daycare provider to make a report to Child Protective Services (hereinafter CPS).

On September 4, 2012, the father filed a petition to enforce the so-ordered stipulation. On September 6, 2012, he filed a petition to modify the so-ordered stipulation so as to award him sole physical and legal custody of the child. The father alleged that the child had been sexually abused by her older sister while the child was in the mother's care. In support of these allegations, the father cited to the fact that the child's daycare provider reported that the then-two-year-old child was not allowing herself to be cleaned when her diaper was being changed. The father also alleged that the child told him that her older sister "did it." In response to these allegations, the mother filed a petition in which she sought sole custody of the child.

Before a hearing on the petitions could be held, the attorney for the child, based solely on certain out-of-court statements attributed to the daycare provider, made an application for the father to be awarded temporary custody of the child. The attorney for the child later acknowledged that he made this application before he had conducted a complete investigation into the father's allegations.

The Family Court, relying on the disputed hearsay allegations which had been proffered by the attorney for the child, granted the application and awarded the father temporary custody of the child, who was then two years old, pending a determination of the petitions. In directing the transfer of custody, the court relied on the father's accusation that the child had been sexually assaulted by her older sister while they were in the mother's care. The court awarded the mother parental access with the child, but prohibited any contact between the child and her older sister.

At a subsequent hearing on the merits of the petitions, the Family Court permitted the father to testify that the child, who was two years old at the time, told him that her older sister "did it." That hearsay statement was the only evidence presented to support the father's allegation that the child had been sexually assaulted by her older sister.

In addition to the father's hearsay testimony, the Family Court permitted, over the mother's objection, testimony from a physician who had treated the child's older sister. The physician's testimony was used by the father and the attorney for the child to support their argument that the child's older sister was "seriously disturbed" ( Matter of Brown v. Simon, 123 A.D.3d 1120, 1122, 1 N.Y.S.3d 238 ).

Both CPS and the Administration for Children's Services (hereinafter ACS) investigated the allegations of sexual abuse and concluded that the allegations were unfounded. A nurse practitioner, who performs medical examinations of children who are suspected to have been abused or neglected, and who was qualified as an expert in the area of child abuse, testified that she had examined the child in the context of one of the investigations and concluded that there was no evidence that the child had been physically or sexually abused. She also testified that a two-year-old's resistance to having her diaper changed was not an indication that the child was being sexually abused.

After the hearing was concluded, in an order entered January 14, 2014, the Family Court determined that it was in the best interest of the child for the father to be awarded sole legal and physical custody of her. Accordingly, the court, among other things, granted the father's petition to modify the so-ordered stipulation so as to

151 N.Y.S.3d 77

grant him sole legal and physical custody of the child. The court awarded the mother liberal parental access and prohibited her from leaving the child alone...