Matter of Mary BB. v. George CC. , 34 N.Y.S.3d 736 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 7, 2016 520917
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In the Matter of MARY BB.,
Appellant,
v MEMORANDUM AND ORDER
GEORGE CC.,
Respondent.
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Calendar Date: May 24, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.
__________
James P. Curran, Hebron, for appellant.
Cheryl L. Sovern, Clifton Park, for respondent.
Timothy M. Bulger, Greenwich, attorney for the child.
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Garry, J.
Appeal from an order of the Family Court of Washington
County (Michelini, J.), entered February 9, 2015, which, in a
proceeding pursuant to Family Ct Act article 6, dismissed the
petition at the close of petitioner's proof.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of four children (born
in 2005, 2006, 2007 and 2008). In September 2011, the parties
consented to an order that maintained joint legal custody of the
children, granted the father physical custody and awarded the
mother visitation on the weekends and as the parties agreed. The
mother commenced this proceeding in August 2014, alleging
inappropriate physical discipline by the father and seeking
primary physical custody of the children. Family Court (Wait,
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J.) ordered a home study and, in November 2014, granted the
mother temporary physical custody, with visitation to the father
every other weekend. At a fact-finding hearing in February 2015,
the father moved to dismiss the mother's petition at the
conclusion of the mother's proof. Family Court (Michelini, J.)
granted this motion on the ground that the mother had failed to
establish a change in circumstances. The mother appeals.
"To survive a motion to dismiss, the mother was required to
establish a change in circumstances warranting an inquiry into
whether the best interests of the children would be served by
modifying the existing custody arrangement" (Matter of Caswell v
Caswell, 134 AD3d 1175, 1176 [2015] [citations omitted]; see
Matter of Tara AA. v Matthew BB., 139 AD3d 1136, 1137 [2016];
Matter of Schlegel v Kropf, 132 AD3d 1181, 1182 [2015]). "In
determining the father's motion to dismiss, Family Court was
required to accept the mother's evidence as true, afford her the
benefit of every favorable inference and resolve all credibility
questions in her favor" (Matter of Caswell v Caswell, 134 AD3d at
1176 [internal quotation marks and citations omitted]; see CPLR
4401; Family Ct Act § 165 [a]; Matter of David WW. v Laureen QQ.,
42 AD3d 685, 686 [2007]). Notably, "[a] custody order entered
upon consent is afforded less weight than an order resulting from
a judicial determination after a hearing" (Matter of Schlegel v
Kropf, 132 AD3d at 1182 [internal quotation marks and citation
omitted]; Matter of Tara AA. v Matthew BB., 139 AD3d at 1137).
Here, in support of her allegations, the mother submitted
several photographs of the children showing some bruising
allegedly caused by the father. She also testified regarding
statements allegedly made by the children, most of which related
to these photographs. The mother also proffered the testimony of
her husband and the children's maternal grandmother regarding
observations of discipline in the father's household, in which
some of the children were "grabbed" and "shoved." The mother
further testified at the fact-finding hearing that since the
September 2011 custody order, she had moved out of an abusive
household where she felt that she could not appropriately care
for the children and, after a transitional period, she had then
developed a new, supportive relationship and a stable household.
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The attorney for the children did not appeal from the
determination, but argues in support of the mother's position
upon her appeal, asserting that Family Court erred by declining
to proceed with a scheduled Lincoln hearing and, thus, deprived
him of an opportunity to advocate for his clients (see generally
Matter of Christopher B. v Patricia B., 75 AD3d 871, 873 [2010];
Matter of Figueroa v Lopez, 48 AD3d 906, 907-908 [2008]).
However, the record reveals that the attorney for the child did
not clearly object to dismissal on this ground during the
hearing, but rather was equivocal as to whether the proposed
Lincoln hearing would be helpful to the court. Further, although
such hearings are well favored in the law, it bears noting that a
Lincoln hearing is not the sole means available to advocate for
children. Rather, an attorney for the child is expected and
empowered to fully participate and advocate by all available
means in presenting evidence on behalf of his or her client, and
is fully vested with the responsibility to present any witness
testimony and evidence as may be helpful in fulfilling the role
of advocating for the child (see Family Ct Act § 241; 22 NYCRR
7.2 [d]; Matter of Krieger v Krieger, 65 AD3d 1350, 1351-1352
[2009]; Matter of White v White, 267 AD2d 888, 890 [1999]; see
generally Matter of Jamie TT., 191 AD2d 132, 135-137 [1993]).
Viewed as a whole and accepted as true for this purpose,
despite the existence of some apparent contrary evidence, the
mother's proof regarding physical discipline in the father's
household, together with the alleged improvement and
stabilization of the mother's living situation, constituted a
change in circumstances sufficient to overcome a motion to
dismiss (see Matter of Caswell v Caswell, 134 AD3d at 1176-1177).
The mother thus satisfied her initial burden, and a further and
more complete inquiry as to whether a modification of custody is
in the best interests of the children is warranted (see Matter of
Dykstra v Bain, 127 AD3d 1516, 1517 [2015]; Matter of Colwell v
Parks, 44 AD3d 1134, 1136 [2007]).1 Accordingly, we find that
1
Family Court discussed some facts that are the proper
subject of such an inquiry in its bench decision, including the
absence of an indicated report following a child protective
investigation of the mother's allegations; nonetheless, the
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Family Court erred in granting the father's motion to dismiss on
this ground.
Lahtinen, J.P., McCarthy, Clark and Mulvey, JJ., concur.
ORDERED that order is reversed, on the law, without costs,
and matter remitted to the Family Court of Washington County for
further proceedings not inconsistent with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court
improper standard was applied and remittal is required for
further development of the record.