Opinion
959 CAF 18–00436
10-04-2019
In the Matter of Sunny B. POROMON, Petitioner–Respondent, v. Monique T. EVANS, Respondent–Appellant, and Evelyn Adams, Now Known as Evans, Respondent.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT. HANDELMAN, WITKOWICZ & LEVITSKY, LLP, ROCHESTER (STEVEN M. WITKOWICZ OF COUNSEL), FOR PETITIONER–RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT.
HANDELMAN, WITKOWICZ & LEVITSKY, LLP, ROCHESTER (STEVEN M. WITKOWICZ OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that modified the prior order of custody and visitation by, inter alia, granting petitioner father sole legal custody of the subject child.
Contrary to the mother's contention, Family Court properly admitted in evidence hearsay statements during the fact-finding hearing to establish that the child had been sexually abused while under the mother's supervision by his half brother. It is well settled that " ‘[a] child's out-of-court statements may form the basis for a finding of [abuse] as long as they are sufficiently corroborated by [any] other evidence tending to support their reliability’ " ( Matter of Nicholas J.R. [Jamie L.R.], 83 A.D.3d 1490, 1490, 922 N.Y.S.2d 679 [4th Dept. 2011], lv denied 17 N.Y.3d 708, 2011 WL 4028757 [2011] ; see Family Ct. Act § 1046[a][vi] ; Matter of Mateo v. Tuttle, 26 A.D.3d 731, 732, 809 N.Y.S.2d 699 [4th Dept. 2006] ). Such statements, when corroborated, "are admissible in custody and visitation proceedings that are based in part upon allegations of abuse or neglect" ( 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] [internal quotation marks omitted]; see Matter of Cobane v. Cobane, 57 A.D.3d 1320, 1321, 870 N.Y.S.2d 569 [3d Dept. 2008], lv denied 12 N.Y.3d 706, 879 N.Y.S.2d 52, 906 N.E.2d 1086 [2009] ). Courts have " ‘considerable discretion in determining whether a child's out-of-court statements describing incidents of abuse have been reliably corroborated and whether the record as a whole supports a finding of abuse’ " ( Nicholas J.R., 83 A.D.3d at 1490, 922 N.Y.S.2d 679 ; see Matter of Nicole V., 71 N.Y.2d 112, 118, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987], rearg. denied 71 N.Y.2d 890, 527 N.Y.S.2d 772, 522 N.E.2d 1070 [1988] ). Here, we conclude that the child's out-of-court statements were sufficiently corroborated by, inter alia, an expert who did more than merely vouch for the child's credibility and, instead, "objectively validate[d] [the child's] account" of the alleged abuse (Matter of Dezarae T. [Lee V.], 110 A.D.3d 1396, 1398, 974 N.Y.S.2d 615 [3d Dept. 2013] ; see Matter of Nikita W. [Michael W.], 77 A.D.3d 1209, 1210, 910 N.Y.S.2d 202 [3d Dept. 2010] ; Matter of Randy A., 248 A.D.2d 838, 839, 670 N.Y.S.2d 225 [3d Dept. 1998] ).
In any event, even assuming, arguendo, that the court erred in admitting the child's hearsay statements, we conclude that any error is harmless because there was otherwise a sound and substantial basis in the record to support the court's determination to award the father sole legal custody (see Matter of Jones v. Jones, 160 A.D.3d 1428, 1429, 75 N.Y.S.3d 400 [4th Dept. 2018] ; Matter of Isobella A. [Anna W.], 136 A.D.3d 1317, 1319–1320, 25 N.Y.S.3d 465 [4th Dept. 2016] ).
The father established a sufficient change in circumstances to warrant an inquiry into the best interests of the child through evidence of the mother's criminal conviction, the breakdown in the parents' ability to cooperate, and mother's admitted failure to provide the child with necessary medication (see Matter of Nathaniel V. v. Kristina W., 173 A.D.3d 1308, 1310, 102 N.Y.S.3d 746 [3d Dept. 2019] ; Matter of Mattice v. Palmisano, 159 A.D.3d 1407, 1408, 72 N.Y.S.3d 681 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2921144 [2018] ; see generally Matter of Moore v. MacRae, 177 A.D.2d 1012, 1012–1013, 578 N.Y.S.2d 314 [4th Dept. 1991] ). Moreover, the evidence adduced at the hearing amply established that the award of sole legal custody to the father was in the child's best interest given the mother's incarceration, her failure to exercise visitation or telephonic rights with the child, and the child's own stated wishes (see generally Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037, 1039–1040, 68 N.Y.S.3d 581 [3d Dept. 2018] ; Matter of Aronica v. Aronica, 151 A.D.3d 1605, 1606, 56 N.Y.S.3d 701 [4th Dept. 2017] ).