Opinion
916 CAF 18–02286
11-08-2019
In the Matter of Rafael ADORNO, Petitioner–Respondent, v. Yaimel VAILLANT, Respondent–Appellant.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT–APPELLANT. EMILY A. VELLA, SPRINGVILLE, ATTORNEY FOR THE CHILD.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT–APPELLANT.
EMILY A. VELLA, SPRINGVILLE, ATTORNEY FOR THE CHILD.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, granted after a hearing the petition of petitioner father seeking to modify a prior stipulated order of joint custody by designating him as the primary residential parent of the subject child.
The mother contends that Family Court improperly admitted and relied on inadmissible hearsay evidence that a bump on the child's forehead was caused by the mother striking the child with a hairbrush, that the child was falling behind in school and not completing her homework assignments, and that the child exhibited poor hygiene. Initially, we note that the mother failed to preserve that contention for our review inasmuch as she did not object to the admission of such testimony (see Matter of Nicole J.R. v. Jason M.R. , 81 A.D.3d 1450, 1452, 917 N.Y.S.2d 495 [4th Dept. 2011], lv denied 17 N.Y.3d 701, 2011 WL 2183839 [2011] ). In any event, the hearsay statement of the child that the mother struck her with a hairbrush was corroborated by observations of the child by the principal of the child's school, who testified at the hearing and was deemed by the court to be credible (see Matter of Derek J. , 56 A.D.3d 558, 558–559, 867 N.Y.S.2d 507 [2d Dept. 2008] ; Matter of Bartlett v. Jackson , 47 A.D.3d 1076, 1077–1078, 849 N.Y.S.2d 704 [3d Dept. 2008], lv denied 10 N.Y.3d 707, 859 N.Y.S.2d 392, 889 N.E.2d 79 [2008] ). Thus, that statement was admissible pursuant to Family Court Act § 1046(a)(vi) (see Matter of Montalbano v. Babcock , 155 A.D.3d 1636, 1637, 65 N.Y.S.3d 396 [4th Dept. 2017], lv denied 31 N.Y.3d 912, 81 N.Y.S.3d 372, 106 N.E.3d 755 [2018] ). The testimony of the principal that the child was falling behind in school and failing to complete her homework assignments was corroborated by school records, and we therefore conclude that any error in admitting such testimony is harmless because the result reached by the court would have been the same even had such testimony been excluded (see Matter of Cyle F. [Alexander F.] , 155 A.D.3d 1626, 1626–1627, 64 N.Y.S.3d 842 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487 [2018] ; Matter of Clark v. Hawkins , 140 A.D.3d 1753, 1754–1755, 33 N.Y.S.3d 646 [4th Dept. 2016] ). Finally, with respect to the alleged hearsay testimony concerning the child's poor hygiene, "[t]here is no indication that the court considered, credited, or relied upon [that testimony] in reaching its determination" ( Matter of Merle C.C. , 222 A.D.2d 1061, 1062, 636 N.Y.S.2d 519 [4th Dept. 1995], lv denied 88 N.Y.2d 802, 644 N.Y.S.2d 689, 667 N.E.2d 339 [1996] ; see Matter of Liza C. v. Noel C. , 207 A.D.2d 974, 974, 616 N.Y.S.2d 819 [4th Dept. 1994] ).
We further conclude, for reasons stated in the decision at Family Court, that the court properly granted the father's petition.