Matter of Leighann W. v. Thomas X. , 34 N.Y.S.3d 771 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 519867
521755
_________________________________
In the Matter of LEIGHANN W.,
Respondent,
v MEMORANDUM AND ORDER
THOMAS X.,
Appellant.
(And Another Related Proceeding.)
_________________________________
Calendar Date: June 2, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.
__________
Teresa C. Mulliken, Harpersfield, for appellant.
Jehed Diamond, Delhi, for respondent.
Linden D. Summers III, Milford, attorney for the child.
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Devine, J.
Appeals (1) from an order of the Family Court of Delaware
County (Becker, J.), entered August 20, 2014, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 8, for an order of protection, (2) from an order of
said court, entered August 25, 2014, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody and visitation, and (3) from
an order of said court, entered July 21, 2015, which denied
respondent's motion to vacate the prior orders.
The parties are the parents of a daughter (born in 2005),
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and a 2009 order awarded petitioner (hereinafter the mother) sole
custody of the child and granted respondent (hereinafter the
father) parenting time in this state. In March 2013, after the
child made allegations that the father had sexually abused her,
the mother commenced a family offense petition against the father
and also petitioned to modify the custodial arrangement to end
his right to visitation. Family Court found that the claimed
sexual abuse had occurred following a fact-finding hearing and,
as such, determined that the father committed a family offense,
issued a two-year order of protection in favor of the mother and
the child and modified the 2009 custody order to terminate the
father's visitation. The father appeals from the custody order
and the order of protection, as well as from the denial of his
subsequent motion to vacate those orders.
Initially, while the order of protection and custody order
were ostensibly entered on the father's default, our review of
the record reveals that no such default occurred. The father
appeared for the first part of the fact-finding hearing and,
while he was absent for the final day of the hearing, his counsel
was in attendance. His counsel declined Family Court's offer for
him to refrain from participating and render the father's absence
a "pure default," and then engaged fully by, among other things,
cross-examining a witness. The orders that ensued were therefore
not issued upon default, and the father was free to appeal from
them (see Matter of Corey UU. [Donna UU.], 85 AD3d 1255, 1256 n 1
[2011], lv denied 17 NY3d 708 [2011]; Matter of Konard M., 257
AD2d 919, 920 [1999]; Matter of Jennifer DD., 227 AD2d 675, 676
[1996]; compare CPLR 5511; Matter of Myasia QQ. [Mahalia QQ.],
133 AD3d 1055, 1056 [2015]).
Turning to the merits of those appeals, we reverse. With
regard to the modification petition, the mother was obliged to
demonstrate a change in circumstances that, once shown, would
then warrant an inquiry into the best interests of the child (see
Matter of Ryan v Lewis, 135 AD3d 1135, 1136 [2016]). The
critical determination here was whether the father sexually
abused the child, as proof of abuse "would clearly establish a
change in circumstances such that it would be contrary to the
child's best interest to continue to have unrestricted contact
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with the father" (Matter of Kimberly CC. v Gerry CC., 86 AD3d
728, 729 [2011]; see Matter of Lori DD. v Shawn EE., 100 AD3d
1305, 1306 [2012]).
Evidence of the abuse came in the form of the child's out-
of-court statements and, inasmuch as "the evidentiary standards
established in Family Ct Act article 10" were applicable under
these circumstances, the question became whether her statements
were "sufficiently corroborated" so as to be admissible (Matter
of Lori DD. v Shawn EE., 100 AD3d at 1306; see Family Ct Act
§ 1046 [a] [vi]; Matter of Rawich v Amanda K., 90 AD3d 1085, 1087
[2011]). The mother testified that the child stated that the
father had touched her, then acted out an incident of sexual
abuse. The child also told her therapist that the father had
touched her, but the therapist testified that the child declined
to give details about the incident and did not opine that the
child's behavior was indicative of sexual assault or that there
was reason to believe that her statements were truthful. The
therapist expressly declined to offer such an opinion in her
testimony, in fact, making clear that she would not say whether
the child's claims were "true or untrue." The child herself did
not testify, and Family Court rejected the belated requests of
counsel for the father and the child for a Lincoln hearing.
The corroboration requirement is not demanding and may be
"satisfied by any other evidence tending to support the
reliability of the [child's] previous statements" (Matter of
Columbia County Dept. of Social Servs. v Kristin M., 92 AD3d
1101, 1103 [2012]), but mere "repetition of an accusation" will
not suffice (Matter of Cobane v Cobane, 57 AD3d 1320, 1321
[2008], lv denied 12 NY3d 706 [2009]; see Matter of Nicole V., 71
NY2d 112, 124 [1987]). The proof here did not rise above
repetition to include additional evidence such as expert
testimony that the child's behavior or her statements were
consistent with abuse, physical evidence of abuse, or the sworn
testimony or in camera statements of the child herself (see
Matter of Katrina CC. [Andrew CC.], 118 AD3d 1064, 1065-1066
[2014]; Matter of Dezarae T. [Lee V.], 110 AD3d 1396, 1398
[2013]; Matter of Rawich v Amanda K., 90 AD3d at 1086).
Therefore, while we are mindful that the issue of corroboration
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"in a particular case is a fine judgment entrusted in the first
instance to the [t]rial [j]udges who hear and see the witnesses,"
there is simply nothing in the record before us to permit a
finding of corroboration (Matter of Christina F., 74 NY2d 532,
536 [1989]; see e.g. Matter of Katrina CC. [Andrew CC.], 118 AD3d
at 1065-1066; Matter of Dezarae T. [Lee V.], 110 AD3d at
1397-1398; Matter of Suzanne EE. v Christopher FF., 66 AD3d 1198,
1199-1200 [2009]). The child's hearsay statements should not
have been considered as a result and, without them, the mother
failed to establish a change in circumstances sufficient to
warrant revisiting the 2009 custody order. This is true even
though Family Court could have "draw[n] the strongest inference
against [the father due to his failure to testify] that the
opposing evidence in the record permits," as the evidence
submitted by the mother did not meet her initial burden of proof
(Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d
137, 141 [1983]; see Matter of McGovern v McGovern, 58 AD3d 911,
915 [2009]).
Lastly, even assuming that hearsay claims of abuse may
constitute "competent, material and relevant evidence" in a
family offense petition if corroborated (Family Ct Act § 834; but
see Matter of Khan-Soleil v Rashad, 108 AD3d 544, 546 [2013];
Matter of Belinda YY. v Lee ZZ., 74 AD3d 1394, 1395 [2010]),
there was not "a fair preponderance of the evidence" to establish
a family offense without them (Family Ct Act § 832). In light of
the foregoing, the appeal from Family Court's denial of the
father's motion to vacate the modification order and order of
protection has been rendered moot (see Matter of Audra Z. v Lina
Y., 135 AD3d 1197, 1198 [2016]; Matter of Sarah A., 63 AD3d 1592,
1592 [2009]).
McCarthy, J.P., Garry, Lynch and Aarons, JJ., concur.
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ORDERED that the orders entered August 20, 2014 and August
25, 2014 are reversed, on the law, without costs, and petitions
dismissed.
ORDERED that the appeal from the order entered July 21,
2015 is dismissed, as moot, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court