Opinion
81 CAF 19-01009
03-19-2021
In the Matter of Matthew A. DIXON, Petitioner-Respondent, v. Taylor R. CROW, Respondent-Appellant.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (HEIDI W. FEINBERG OF COUNSEL), FOR RESPONDENT-APPELLANT. GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILDREN.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (HEIDI W. FEINBERG OF COUNSEL), FOR RESPONDENT-APPELLANT.
GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, 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, after a hearing, granted the petition of petitioner father to modify a prior order of custody and visitation by requiring that the mother's visitation with the subject children be supervised and occur in New York. We affirm.
The mother contends that Family Court erred in denying her request for an adjournment of the hearing until she could travel from out of state to appear in person. We reject that contention. "The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court,’ " and we conclude under the circumstances here that the court did not abuse its discretion ( Matter of Steven B. , 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006], quoting Matter of Anthony M. , 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447 [1984] ; cf. Matter of Sullivan v. Sullivan , 173 A.D.3d 1844, 1845, 105 N.Y.S.3d 669 [4th Dept. 2019] ). We note that the mother has failed to demonstrate that she suffered any prejudice as a result of not attending the hearing in person inasmuch as she appeared by telephone, she declined the opportunity to testify, and her attorney fully represented her interests at the hearing (cf. Sullivan , 173 A.D.3d at 1845, 105 N.Y.S.3d 669 ; see generally Matter of Anastasia E.M. [Niasia F.] , 146 A.D.3d 887, 889, 45 N.Y.S.3d 199 [2d Dept. 2017] ; Matter of Dakota H. [Danielle F.] , 126 A.D.3d 1313, 1315-1316, 5 N.Y.S.3d 742 [4th Dept. 2015], lv denied 25 N.Y.3d 909, 2015 WL 3605123 [2015] ). We also reject the mother's related contention that the court's refusal to grant the adjournment deprived her of effective assistance of counsel. Contrary to the mother's assertion, the record establishes that her attorney was fully familiar with the case and " ‘was both competent and zealous’ ..., as evidenced by the fact that [she] ... vigorously cross-examined [the father], ... made appropriate objections" and put forth a reasoned, albeit unsuccessful, motion to dismiss the petition ( Matter of Ballard v. Piston , 178 A.D.3d 1397, 1398-1399, 116 N.Y.S.3d 829 [4th Dept. 2019], lv denied 35 N.Y.3d 907, 2020 WL 3422345 [2020] ).
The mother further contends that the court erred in determining that there was reliable corroboration of the children's out-of-court statements describing certain mistreatment by the mother. We conclude that the mother's contention lacks merit. "It is well settled that there is ‘an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature's intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi) ’ ..., where ... the statements are corroborated" ( Matter of Mateo v. Tuttle , 26 A.D.3d 731, 732, 809 N.Y.S.2d 699 [4th Dept. 2006] ; see Matter of Ordona v. Campbell , 132 A.D.3d 1246, 1247, 17 N.Y.S.3d 803 [4th Dept. 2015] ). "Although the degree of corroboration [required] is low, a threshold of reliability must be met" ( Matter of East v. Giles , 134 A.D.3d 1409, 1411, 23 N.Y.S.3d 502 [4th Dept. 2015] [internal quotation marks omitted]). "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" ( Matter of Poromon v. Evans , 176 A.D.3d 1642, 1642, 112 N.Y.S.3d 366 [4th Dept. 2019] [internal quotation marks omitted]).
Here, each child's out-of-court statements were sufficiently corroborated, and cross-corroborated, by the testimony at their separate Lincoln hearings that, during an out-of-state summer visitation period, the mother subjected them to excessive and inappropriate corporal punishment by repeatedly striking them with a belt thereby leaving bruises, deprived them of indoor bathroom facilities and necessities, and engaged in other mistreatment and inappropriate conduct while ostensibly caring for them (see Matter of Gabriel R. [Jose R.] , 188 A.D.3d 501, 502, 134 N.Y.S.3d 346 [1st Dept. 2020] ; Matter of George A. v. Josephine D. , 165 A.D.3d 425, 425, 85 N.Y.S.3d 29 [1st Dept. 2018] ; Matter of Lowe v. O'Brien , 81 A.D.3d 1093, 1094, 917 N.Y.S.2d 363 [3d Dept. 2011], lv denied 16 N.Y.3d 713, 2011 WL 1675393 [2011] ). In addition, the children's reports of mistreatment and inappropriate conduct by the mother, and its detrimental effect on them, were partially corroborated by the testimony of the father (see Matter of Antonio S. [Antonio S., Sr.] , 154 A.D.3d 420, 420, 61 N.Y.S.3d 226 [1st Dept. 2017] ). Although the mother challenges the court's determination with respect to the father's credibility and the reliability of the corroborative evidence, we note that " ‘Family Court has considerable discretion in deciding whether a child's out-of-court statements alleging incidents of abuse have been reliably corroborated ..., and its findings must be accorded deference on appeal where ... the ... [c]ourt is primarily confronted with issues of credibility’ " ( East , 134 A.D.3d at 1411, 23 N.Y.S.3d 502 ). Here, "in view of its unique opportunity to observe the witnesses in the course of the fact-finding and Lincoln hearings, [the court's] credibility determinations are entitled to great deference" ( Matter of Eunice G. v. Michael G. , 85 A.D.3d 1339, 1340, 927 N.Y.S.2d 393 [3d Dept. 2011] ), and we conclude that there is no basis on this record to disturb those determinations.
Contrary to the mother's further contention, the father met his burden of establishing a change in circumstances sufficient to warrant an inquiry into whether a modification of the visitation arrangement is in the best interests of the children (see Matter of Morales v. Vaillant , 187 A.D.3d 1591, 1591, 129 N.Y.S.3d 874 [4th Dept. 2020] ). Here, the mother's mistreatment of the children during the summer visitation period, which included the infliction of excessive and inappropriate corporal punishment with a belt and the deprivation of adequate bathroom facilities and necessities, constituted the requisite change in circumstances (see Matter of DeJesus v. Gonzalez , 136 A.D.3d 1358, 1360, 24 N.Y.S.3d 825 [4th Dept. 2016], lv denied 27 N.Y.3d 906, 2016 WL 3084688 [2016] ; Matter of Samuel v. Samuel , 64 A.D.3d 920, 921, 881 N.Y.S.2d 729 [3d Dept. 2009] ; Matter of Hagans v. Harden , 12 A.D.3d 972, 973, 785 N.Y.S.2d 173 [3d Dept. 2004], lv denied 4 N.Y.3d 705, 794 N.Y.S.2d 300, 827 N.E.2d 284 [2005] ).
The mother also contends that the court erred in requiring that her visitation be supervised because the father failed to establish that such visitation is in the children's best interests. We conclude that the mother's contention lacks merit in light of the evidence of her mistreatment of the children. The determination whether visitation should be supervised "is a matter left to the sound discretion of the court and will not be disturbed where, as here, there is a sound and substantial basis in the record to support such visitation" ( Matter of Vieira v. Huff , 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684 [4th Dept. 2011] ; see Matter of Joseph G. v. Winifred G. , 104 A.D.3d 1067, 1068-1069, 962 N.Y.S.2d 467 [3d Dept. 2013], lv denied 21 N.Y.3d 858, 2013 WL 2476501 [2013] ; Matter of Boulerice v. Heaney , 45 A.D.3d 1217, 1218, 846 N.Y.S.2d 734 [3d Dept. 2007] ). Contrary to the mother's related contention, we discern no basis to disturb the court's determination that the supervised visitation must occur in New York (see Matter of LaRussa v. Williams , 114 A.D.3d 1052, 1055, 980 N.Y.S.2d 605 [3d Dept. 2014] ). Finally, we note that if, as the mother now suggests in her brief on appeal, visitation is being withheld because the parties are unable to agree on a "mutually acceptable supervisor" to facilitate the mother's supervised visitation with the children in New York pursuant to the order, she "may file a petition seeking to enforce or modify the order" ( Matter of Moore v. Kazacos , 89 A.D.3d 1546, 1547, 932 N.Y.S.2d 788 [4th Dept. 2011], lv denied 18 N.Y.3d 806, 2012 WL 446225 [2012] ; see Matter of Pierce v. Pierce , 151 A.D.3d 1610, 1611, 56 N.Y.S.3d 703 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4654065 [2017] ; Matter of Thomas v. Small , 142 A.D.3d 1345, 1346, 38 N.Y.S.3d 461 [4th Dept. 2016] ).