Felix A. v. Jennifer B.

209 A.D.3d 1131

175 N.Y.S.3d 785

In the Matter of FELIX A., Appellant,

v.JENNIFER B., Respondent.

533744

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 8, 2022

Decided and Entered: October 20, 2022

Carolyn Snyder Lemmon, Albany, for appellant.

Carl D. Birman, Albany, for respondent.

Alexandra G. Verrigni, Rexford, attorney for the child.

Before: Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Family Court of Schenectady County (Kevin A. Burke, J.), entered June 22, 2021, which, in a proceeding pursuant to Family Ct Act article 6, granted respondent's motion to dismiss the petition at the close of petitioner's proof.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a child (born in 2008). Pursuant to a September 2018 Family Court order on consent, the parties were awarded joint legal custody of the child, with the mother having primary physical custody and the father receiving scheduled parenting time. In November 2020, the father filed a family offense petition and a modification petition.¹ At the close of the father's proof on the modification petition, the mother and the attorney for the child moved to dismiss the petition. Family Court granted the motions and entered an order of dismissal finding no proof of a change in circumstances. The father appeals.

"Generally, in order to survive a motion to dismiss, the petitioner is required to establish a change in circumstances warranting an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement" ( Matter of Nathan PP. v. Angela PP., 205 A.D.3d 1082, 1083, 167 N.Y.S.3d 247 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; see Matter of Abigail Y. v. Jerry Z., 200 A.D.3d 1512, 1513, 161 N.Y.S.3d 439 [3d Dept. 2021] ). "When, as here, Family Court is tasked with deciding a motion to dismiss at the close of the petitioner's proof, the court must accept the petitioner's evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner's favor" ( Matter of Donald EE. v. Heidi FF., 198 A.D.3d 1118, 1119, 152 N.Y.S.3d 859 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Abigail Y. v. Jerry Z., 200 A.D.3d at 1513, 161 N.Y.S.3d 439 ).

Initially, the father contends that Family Court erred in precluding his testimony consisting of the child's out-of-court statements as an exception to hearsay pursuant to Family Ct Act § 1046(a)(vi). "A child's out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated" ( Matter of Hamilton v. Anderson, 143 A.D.3d 1086, 1087, 40 N.Y.S.3d 203 [3d Dept. 2016] [citations omitted]; see Matter of Kristie GG. v. Sean GG., 168 A.D.3d 25, 28, 91 N.Y.S.3d 292 [3d Dept. 2018] ). "The relatively low degree of required corroboration may be provided by any other evidence tending to support the reliability of the child's statements" ( Matter of Suzanne QQ. v. Ben RR., 161 A.D.3d 1223, 1224, 75 N.Y.S.3d 697 [3d Dept. 2018] [internal quotation marks, brackets and citations omitted]). Here, "there is simply nothing in the record before us to permit a finding of corroboration" ( Matter of Leighann W. v. Thomas X. , 141 A.D.3d 876, 878, 34 N.Y.S.3d 771 [3d Dept. 2016] ). The evidence presented at the hearing consisted solely of the father's testimony. The father failed to produce any photographs or documents, call other witnesses, or request that the child testify at a Lincoln hearing. Upon this record, we decline to disturb the court's determination (see Matter of Nicole R. v. Richard S., 184 A.D.3d 978, 982, 126 N.Y.S.3d 219 [3d Dept. 2020] ; Matter of Felicia N., 44 A.D.3d 1188, 1189, 843 N.Y.S.2d 859 [3d Dept. 2007] ).

The dismissal of the father's modification petition was supported by a sound and substantial basis in the record. Family Court properly precluded much of the father's testimony that either consisted of, or was based upon, uncorroborated statements by the child. The remainder of his testimony – that the child's grades had slipped at one point, but then...