Opinion
526366
10-17-2019
In the Matter of AARON OO., Appellant, v. AMBER PP., Respondent.
Todd G. Monahan, Schenectady, for appellant. Timothy S. Brennan, Schenectady, for respondent. Veronica Reed, Schenectady, attorney for the children.
Todd G. Monahan, Schenectady, for appellant.
Timothy S. Brennan, Schenectady, for respondent.
Veronica Reed, Schenectady, attorney for the children.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
Clark, J. Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of three children (born in 2006, 2009 and 2013). In 2017, when he was several years into a 40–year prison sentence, the father commenced the instant Family Ct Act article 8 proceeding seeking an order of protection against the mother on behalf of the children. The father asserted that the mother had committed various family offenses against the children, including disorderly conduct, harassment, aggravated harassment, assault, criminal mischief, coercion, menacing, reckless endangerment, attempted assault and sexual misconduct. The matter proceeded to a fact-finding hearing and, following the conclusion of the father's testimony on direct examination, the mother moved to dismiss the petition on the basis of insufficient proof. Family Court granted the motion, finding that the father had failed to support his allegations with sufficient competent proof, and issued an order dismissing the father's petition with prejudice. The father appeals.
The attorney for the children joined in the mother's motion to dismiss the petition.
--------
We agree with Family Court that the father did not satisfy his burden of proving – "by a fair preponderance of the evidence through the admission of ‘competent, material and relevant evidence’ " – that the mother committed a family offense against the children ( Matter of Patricia H. v. Richard H. , 78 A.D.3d 1435, 1436, 912 N.Y.S.2d 146 [2010], quoting Family Ct. Act § 834 ; see Family Ct. Act § 832 ). Nearly all of the father's "proof" consisted of hearsay statements made by the children or the father's relatives, which were inadmissible to prove the truth of the matters asserted (see Matter of Kristie GG. v. Sean GG. , 168 A.D.3d 25, 28–29, 91 N.Y.S.3d 292 [2018] ; Matter of Belinda YY. v. Lee ZZ. , 74 A.D.3d 1394, 1395, 903 N.Y.S.2d 568 [2010] ). The remaining proof presented by the father was insufficient to support any of the family offenses alleged to have been committed by the mother (see Matter of Leighann W. v. Thomas X. , 141 A.D.3d 876, 879, 34 N.Y.S.3d 771 [2016] ; Matter of Belinda YY. v. Lee ZZ. , 74 A.D.3d at 1395, 903 N.Y.S.2d 568 ). Further, Family Court properly denied the father's request for a Lincoln hearing, which, even if appropriate in a Family Ct Act article 8 proceeding (compare Matter of Joyesha J. v. Oscar S. , 135 A.D.3d 557, 558, 22 N.Y.S.3d 845 [2016], with Matter of Mauzy v. Mauzy , 40 A.D.3d 1147, 1148, 834 N.Y.S.2d 722 [2007], and Matter of Hanehan v. Hanehan , 8 A.D.3d 712, 714, 778 N.Y.S.2d 539 [2004] ), could not have cured the infirmities in the father's proof (see generally Matter of Shaver v. Bolster , 155 A.D.3d 1368, 1370, 65 N.Y.S.3d 344 [2017] ). Accordingly, we affirm Family Court's dismissal of the father's petition with prejudice.
Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur.
ORDERED that the order is affirmed, without costs.