Opinion
512 CA 21-00160
07-08-2022
S.P., Plaintiff-Appellant, v. M.P., Defendant-Respondent.
S.P., PLAINTIFF-APPELLANT PRO SE. VERA A. VENKOVA, BUFFALO, ATTORNEY FOR THE CHILDREN.
S.P., PLAINTIFF-APPELLANT PRO SE.
VERA A. VENKOVA, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff mother appeals from an order denying her application to modify the parties’ existing custody and access agreement (CA agreement) by awarding her sole custody of the subject children. We reject the mother's contention that Supreme Court erred in denying her application. Assuming, arguendo, that the mother "met [her] threshold burden of demonstrating a change in circumstances sufficient to justify a best interests analysis" ( Matter of William F.G. v. Lisa M.B. , 169 A.D.3d 1428, 1430, 92 N.Y.S.3d 805 [4th Dept. 2019] ), we conclude that the court's determination that the existing custody arrangement is in the children's best interests is supported by a sound and substantial basis in the record (see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Janowsky v. Monte , 200 A.D.3d 1694, 1695, 155 N.Y.S.3d 896 [4th Dept. 2021] ; Matter of Common v. Pirro , 184 A.D.3d 1087, 1088, 123 N.Y.S.3d 871 [4th Dept. 2020] ).
We also reject the mother's contention that the court erred in refusing to allow her to present evidence in support of her allegations that defendant father abused the subject children. The court properly limited the proof to incidents that occurred after the parties entered into the CA agreement (see Matter of Hall v. Hawthorne , 99 A.D.3d 1237, 1238, 951 N.Y.S.2d 446 [4th Dept. 2012] ). Moreover, although there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child where the statements are corroborated, the mother failed to offer any evidence to corroborate the children's out-of-court statements and, therefore, the court's preclusion of those statements was proper (see id. ). In addition, the court properly precluded testimony of a child protective services caseworker and the admission in evidence of the related investigatory file because the mother failed to establish the applicability of a statutory provision allowing her to introduce the unfounded child protective service reports or testimony concerning those reports (see Matter of Brown v. Simon , 123 A.D.3d 1120, 1122, 1 N.Y.S.3d 238 [2d Dept. 2014], lv denied 25 N.Y.3d 902, 2015 WL 1471303 [2015] ; Matter of Brockington v. Alexander , 26 A.D.3d 884, 885, 809 N.Y.S.2d 349 [4th Dept. 2006] ; Matter of Humberstone v. Wheaton , 21 A.D.3d 1416, 1417, 801 N.Y.S.2d 868 [4th Dept. 2005] ).
Contrary to the mother's contention, the court properly denied her motions seeking to disqualify the Attorney for the Child (AFC) (see generally Matter of Giohna R. [John R.] , 179 A.D.3d 1508, 1509, 119 N.Y.S.3d 336 [4th Dept. 2020], lv dismissed in part and denied in part 35 N.Y.3d 1003, 125 N.Y.S.3d 680, 149 N.E.3d 441 [2020] ; Matter of Athoe v. Goodman , 170 A.D.3d 1532, 1533, 94 N.Y.S.3d 528 [4th Dept. 2019] ; Matter of Brooks v. Greene , 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ). The contentions raised by the mother for the first time in her reply brief are not properly before us (see Matter of Carroll v. Chugg , 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016] ; Cunningham v. Cunningham , 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016] ). We have considered the mother's remaining contentions and conclude that none warrants modification or reversal of the order.
The issues raised by the AFC are not properly before us inasmuch as the AFC did not file a notice of appeal (see Matter of Noble v. Gigon , 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019] ; Carroll , 141 A.D.3d at 1106, 34 N.Y.S.3d 848 ).