Velez v. White

• Decision Date: 25 February 2016
• Citation: 25 N.Y.S.3d 733,136 A.D.3d 1235
• Parties: In the Matter of Diane VELEZ, Appellant, v. John R. WHITE et al., Respondents, et al., Respondents. (Proceeding No. 1.) In the Matter of Diane Velez, Appellant, v. Polly White et al., Respondents. (Proceeding No. 2.).
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1235

25 N.Y.S.3d 733

In the Matter of Diane VELEZ, Appellant,

v.John R. WHITE et al., Respondents, et al., Respondents. (Proceeding No. 1.)

In the Matter of Diane Velez, Appellant,

v.Polly White et al., Respondents. (Proceeding No. 2.).

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

Feb. 25, 2016.

Dennis B. Laughlin, Cherry Valley, for appellant.

Guttman & Reiter, Ithaca (Charles Guttman of counsel), for respondents.

Robin Abrahamson Masson, Ithaca, attorney for the child.

Before: PETERS, P.J., GARRY, ROSE and LYNCH, JJ.

GARRY, J.

Appeal from an order of the Family Court of Schuyler County (Morris, J.), entered January 23, 2015, which, among other things, dismissed petitioner's application, in proceeding No. 2 pursuant to Family Ct. Act article 6, for visitation with the subject child.

Petitioner (hereinafter the grandmother) is the maternal grandmother of a child (born in 2006) whose parents are respondent Joseph D. White (hereinafter the father) and respondent Hillary Anne Sepulveda–Taylor (hereinafter the mother). The grandmother had de facto physical custody of the child for approximately two years, until child protective authorities removed the child in May 2013. Thereafter, neglect proceedings were commenced against the grandmother. Family Court granted temporary custody pursuant to Family Ct. Act article 10 to the child's paternal grandparents, respondent John R. White and respondent Polly White, and issued a temporary order of protection directing the grandmother to stay away from the child and refrain from communication or contact with her. In December 2013, the court issued an order of fact-finding and disposition that, among other things, adjudicated the child to be neglected, granted supervised visitation to the grandmother and otherwise continued the order of protection. Apparently, little or no visitation occurred, as the parties were not able to agree upon an appropriate supervisor.

In February 2014, the grandmother commenced the first of these proceedings seeking custody of the child. Shortly thereafter, in a separate proceeding pursuant to Family Ct. Act article 6 to which the grandmother was not a party, Family Court awarded custody of the child to the paternal grandparents upon the consent of the mother and father. The grandmother filed an amended petition seeking visitation, and then clarified that she was no longer seeking custody. Following a hearing, the court dismissed the grandmother's petitions, and she appeals.

In determining whether to award visitation to a grandparent over the objections of a child's parents or custodians, a court must first determine whether the grandparent has standing, and, if so, then must decide whether visitation is in the child's best interests (see Domestic Relations Law § 72 [1] ; Matter of E.S. v. P.D., 8 N.Y.3d 150, 156–157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007] ; Matter of Rubel v. Wilson, 111 A.D.3d 1065, 1067, 975 N.Y.S.2d 230 [2013] ). Here, the threshold determination that the grandmother had standing, based upon the two-year period in which she had de facto custody of the child, is not in dispute. The grandmother contends that Family Court erred in the second step of the analysis, in determining that visitation was not in the child's best interests. We find no error, and affirm.

The most significant consideration in rendering this determination is the nature and quality of the relationship between the grandparent and the child (see Matter of Burton v. Barrett, 104 A.D.3d 1084, 1087, 961 N.Y.S.2d 610 [2013] ; Matter of Stellone v. Kelly, 45 A.D.3d 1202, 1204, 846 N.Y.S.2d 723 [2007] ). Other important factors include the grandparent's ability to nurture the child, his or her attitude towards the child's custodians, the reasons for the objections to visitation, the child's preference and the position taken by the attorney for the child (see Matter of Articolo v. Grasso, 132 A.D.3d 1193, 1194, 18 N.Y.S.3d 767 [2015] ; Matter of Layton v. Grace, 129 A.D.3d 1147, 1149, 10 N.Y.S.3d 680 [2015] ).

Here, as to the relationship between the child and the grandmother, the record supports Family Court's conclusions that the child had unresolved mental health issues related to the grandmother and that visitation posed a threat of emotional harm to the child. Specifically, the child's therapist testified that she diagnosed the child with posttraumatic stress disorder

arising from traumatic events that occurred while the child was residing with the grandmother, including repeated exposure to domestic violence as well as possible incidents of inappropriate sexual conduct in the child's presence. The therapist testified that the child was further traumatized by dolls in the grandmother's home that, according to the child, were "evil" and were used to frighten the child. The therapist said the child remained irrationally fearful of dolls, so that the therapist had to hide dolls in her office during the child's counseling sessions. She stated that the child was showing improvement in therapy and recommended that no visitation occur until after the child had progressed further. Other witnesses,...