In re Shayna R.

Matter of Shayna R. v Cherisse C.

2008 NY Slip Op 09644

Decided on December 9, 2008

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 9, 2008

Tom, J.P., Gonzalez, Nardelli, Moskowitz, Renwick, JJ.

4756 4756A

[*1]In re Shayna R., and Others Dependent Children under the Age of Eighteen Years, etc.,

and

Cherisse C., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.

In re Victor B., Petitioner,

and

Cherisse C., Respondent-Appellant, Administration for Children's Services, Respondent-Respondent.

George E. Reed, Jr., White Plains, for appellant.

Michael A. Cardozo, Corporation Counsel, New York

(Mordecai Newman of counsel), for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Claire

V. Merkine of counsel), Law Guardian.

Order of disposition, Family Court, New York County (Sara P. Schechter, J.), entered on or about July 6, 2007, which, insofar as appealed from, upon a fact-finding determination that respondent mother neglected the subject children, directed the release of the children Britney D. and Shayna R. to the mother under supervision of the Administration for Children's Services, and directed the release of the child Brandon B. to the custody of his father, and order, same court and Judge, entered on or about July 6, 2007, which granted petitioner father's petition for custody of Brandon and awarded the mother weekend visitation three times per month, unanimously affirmed, without costs.

The finding of neglect was supported by a preponderance of the evidence (Family Court Act § 1046[b][i]), including the cross-corroborating statements of the children Brandon and [*2]Shayna that the mother routinely left them and their younger sister alone in the apartment, sometimes in the middle of the night (see Matter of Nicole V., 71 NY2d 112, 124 [1987]). There exists no basis upon which to disturb the court's credibility determinations (see Matter of Frantrae W., 45 AD3d 412 [2007], lv denied 10 NY3d 705 [2008]).

The totality of the circumstances establish that the award of custody of Brandon to his father was in the best interests of the child and has a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167 [1982]). The record shows that in addition to the finding of neglect, the mother exposed Brandon to violence in the home by being involved in abusive personal relationships, failed to tend to his educational needs as evidenced by Brandon's school records showing excessive lateness and absences, behaved erratically, and failed to avail herself of the services offered by ACS to help her deal with what appeared to be an untreated mental condition, whereas the father was able to provide Brandon with stability, a suitable home, emotional and intellectual support, and was involved with his education. Although the award separates Brandon from his siblings, the father has expressed a willingness to ensure that Brandon would have frequent contact with his sisters (see Matter of Olimpia M. v Steven M., 228 AD2d 270 [1996]).

We have considered appellant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 9, 2008

CLERK

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