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In re James U.

Supreme Court of New York, Third Department

June 15, 2017

In the Matter of JAMES U., Respondent,
v.
CATALINA., Appellant. (Proceeding No. 1.) In the Matter of CATALINA V., Appellant,
v.
JAMES U., Respondent. (Proceeding No. 2.) (And Another Related Proceeding.)

          Calendar Date: February 14, 2017

          Jane M. Bloom, Monticello for appellant.

          Ivy Schildkraut, Monticello, for respondent.

          Marcia Heller, Rock Hill, attorney for the children.

          Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.

          MEMORANDUM AND ORDER

          EGAN JR., J.

         Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered July 24, 2014, which, among other things, in proceeding No. 2 pursuant to Family Ct Act article 6, established a visitation schedule for respondent and imposed certain restrictions upon petitioner's travel with the subject children.

         The underlying facts are more fully set forth in our decision in Matter of Lee-Ann W. (James U.) (___ A.D.3d ___ [decided herewith]). Briefly, Catalina V. (hereinafter the mother) and James U. (hereinafter the father) are the parents of a daughter (born in 2008) and a son (born in 2012). Following the deterioration of the parties' relationship, the mother left their shared home in March 2013 to visit family in Puerto Rico and, when it became apparent that the parties' difficulties could not be resolved, the father commenced proceeding No. 1 in May 2013 seeking custody of the children. The mother was served with the petition in Puerto Rico in June 2013, appeared telephonically and was directed by Family Court to return to New York. When she did so in July 2013, the mother cross-petitioned for custody (giving rise to proceeding No. 2), filed a family offense petition against the father and made a hotline report alleging that the father had sexually abused the daughter - resulting in the commencement of a Family Ct Act article 10 proceeding by the Sullivan County Department of Family Services.

         Following a lengthy combined hearing on all of the petitions, Family Court, in the context of the Family Ct Act article 10 proceeding, adjudicated the daughter to be an abused and neglected child and made a derivative finding of neglect as to the son. The father appealed, contending that there was insufficient evidence to corroborate the daughter's statements to investigators and, as such, the findings of abuse and/or neglect could not stand. Upon appeal, we agreed that the allegations of abuse were not sufficiently corroborated but, finding that the father's own testimony corroborated the allegations of neglect, upheld that portion of Family Court's determination finding that the father had neglected the daughter and had derivatively neglected the son (Matter of Lee-Ann W. [James U.], supra).

         As for the related Family Ct Act articles 6 and 8 proceedings, Family Court, among other things, awarded the mother sole legal and physical custody of the children, sustained the family offense petition, established a visitation schedule for the father and precluded the mother from traveling with the children outside of the continental United States without the father's permission. The mother now appeals, taking issue with the visitation schedule fashioned for the father and the travel restrictions imposed upon her and, further, contending that Family Court exhibited bias against her and abused its discretion in discontinuing the services of her court-appointed interpreter.

         Beginning with the issue of the interpreter, Family Court is required to appoint an interpreter for "an interested parent

... of a minor party in a Family Court proceeding" if the court determines that such parent "is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings" (22 NYCRR 217.1 [a]). "The determination [as to] whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive [an individual] of his or her constitutional rights" (Matter of Edwin N., 51 A.D.3d 928, 928 [2008] [internal quotation marks and citation omitted], lv denied 11 N.Y.3d 705');">11 N.Y.3d 705 [2008]; accord Matter of Ejoel M., 34 A.D.3d 678, 679 [2006]).

         Here, Family Court initially indicated that it would appoint an interpreter if the mother was more comfortable conversing in Spanish and, throughout the majority of the ensuing hearings, an interpreter was present for the proceedings. However, after many months of observing and interacting with the mother, listening to her testimony (during which she often responded in English) and ascertaining that she had taken college-level courses in the United States and passed real estate licensing examinations that were written in English, Family Court determined that a court-appointed interpreter no longer was necessary. While the mother may have "had an imperfect grasp of the [English] language" (People v Avery, 80 A.D.3d 982, 984 [2011], lv denied 17 N.Y.3d 791 [2011]), our review of the record confirms that her answers to the questions posed to her were responsive. More to the point, even accepting that the record contains conflicting proof as to the mother's proficiency in English, Family Court - having had ample opportunity to assess the mother's capabilities first hand - was in the best position to ascertain the need for an interpreter, and we do not find that Family Court abused its discretion in discontinuing the services of the court-appointed interpreter [1]. The mother's related claim - that Family Court exhibited bias against her - is unpreserved for our review (see Matter of Patrick EE. V Brenda DD., 129 A.D.3d 1235, 1238 [2015], lv denied 26 N.Y.3d 908 [2015]) and, in any event, is unsupported by the record. To the contrary, Family Court's identification and/or criticism of the mother's and the father's respective parental shortcomings was quite evenhanded.

         Turning to the travel restrictions imposed upon the mother, Family Court is vested with the discretion to place reasonable travel restrictions upon a parent - including geographical limitations - and, so long as the limitations put in place are supported by a sound and substantial basis in the record, Family Court's findings on this point will not be disturbed (see generally Matter of O'Neil v O'Neil, 132 A.D.3d 680, 681 [2015]; Matter of Rosetta BB. v Joseph DD., 125 A.D.3d 1205, 1206-1207 [2015]). Here, the record reflects that the mother has substantial family ties to Puerto Rico, and the father testified - without contradiction - that the mother had a history of leaving New York on short notice, for extended periods of time and with only vague or indefinite plans to return. Additionally, the evaluating psychologist expressed concerns regarding the mother's tendency towards "gatekeeping, " i.e., using her status as the custodial parent to keep the children away from the father. Given such proof, and in light of the mother's precipitous departure to Puerto Rico in March 2013, her subsequent attempt to commence a custody proceeding there and her corresponding ...


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