State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 521452
________________________________
In the Matter of COREY D.
HAMILTON,
Respondent,
v MEMORANDUM AND ORDER
SHANNON M. ANDERSON,
Appellant.
________________________________
Calendar Date: September 7, 2016
Before: Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.
__________
Shaw & Murphy, PLLC, Ithaca (Natanya E. DeWeese of
counsel), for appellant.
Carman M. Garufi, Binghamton, attorney for the child.
__________
Garry, J.
Appeal from an order of the Family Court of Broome County
(Pines, J.), entered July 15, 2015, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son (born in 2003).
The parties had joint legal custody and the father had primary
physical custody of the child pursuant to a 2011 order that gave
parenting time to the mother on alternate weekends and one
-2- 521452
weekday evening.1 In December 2014, the father filed a
modification petition seeking sole custody of the child and
supervised parenting time for the mother premised upon her drug
abuse, arrest for prostitution and the removal of a younger child
from her home. Shortly thereafter, the father filed a second
petition requesting temporary supervised visitation.2 Following
fact-finding and Lincoln hearings, Family Court found a change in
circumstances, awarded sole legal and physical custody to the
father and provided supervised parenting time to the mother once
weekly for two hours at a public place, with additional parenting
time if the parties so agreed. The mother appeals.
Contrary to the mother's argument, Family Court did not err
by admitting hearsay evidence that the child had told his father
and a caseworker that he found and photographed hypodermic
needles on his bed in the mother's home. 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 (see Matter of Cobane v Cobane, 57 AD3d 1320, 1321
[2008], lv denied 12 NY3d 706 [2009]; Matter of Rosario WW. v
Ellen WW., 309 AD2d 984, 987 [2003]). The relatively low degree
of required corroboration may be provided by "[a]ny other
evidence tending to support the reliability of the [child's]
statements" (Family Ct Act § 1046 [a] [vi]; see Matter of
Kimberly CC. v Gerry CC., 86 AD3d 728, 730 [2011]). Here, the
mother admitted during her testimony that she was using heroin
during the time period when the child said that he saw the
1
The 2011 order had modified a prior order by which the
parties had joint legal custody and the mother had primary
physical custody. Both orders were affirmed in previous appeals
(Matter of Hamilton v Anderson, 99 AD3d 1077 [2012]; Matter of
Hamilton v Anderson, 31 AD3d 935 [2006]).
2
Family Court dismissed the first petition after
incorporating its allegations and requests for relief into the
second petition.
-3- 521452
needles in her home, and a caseworker who interviewed the mother
at that time testified that she saw needle tracks on the mother's
arms. We find no abuse of Family Court's considerable discretion
in its determination that the child's statement was adequately
corroborated (see Heather B. v Daniel B., 125 AD3d 1157, 1158
[2015]; Matter of Bartlett v Jackson, 47 AD3d 1076, 1077-1078
[2008], lv denied 10 NY3d 707 [2008]).
The mother next contends that Family Court improperly
refused her request for an adjournment to permit her caseworker
to testify about her progress in drug rehabilitation, although
the court allowed the father to offer other postpetition
evidence. As the mother acknowledges, postpetition evidence is
irrelevant in determining whether a change in circumstances
exists, but may be considered as part of the analysis of a
child's best interests (see Matter of Hayward v Campbell, 104
AD3d 1000, 1001 n [2013]; Matter of Klee v Schill, 95 AD3d 1599,
1601 n 4 [2012]). Here, the court's denial of an adjournment was
not based upon a refusal to consider postpetition evidence; on
the contrary, the court permitted the mother to testify about her
postpetition involvement and progress in drug rehabilitation,
accepted and credited this testimony, and referenced it in the
custody decision. The adjournment was instead denied because the
mother's testimony provided sufficient evidence upon this issue,
and the court found the additional testimony to be unnecessary.
This determination was not an abuse of discretion (see Matter of
Rosalyn YY. v Otsego County Dept. of Social Servs., 101 AD3d
1401, 1403 [2012]; Matter of Braswell v Braswell, 80 AD3d 827,
829 [2011]).
Family Court did not err in awarding sole legal custody to
the father. "In any modification proceeding, the threshold issue
is whether there has been a change in circumstances since the
prior custody order significant enough to warrant a review of the
issue of custody to ensure the continued best interests of the
child[]" (Matter of Patricia P. v Dana Q., 106 AD3d 1386, 1386
[2013] [citations omitted]; accord Matter of Tyrel v Tyrel, 132
-4- 521452
AD3d 1026, 1026 [2015]). Here, the mother's admitted substance
abuse, which had led to the removal of her younger child from her
care by child protective authorities, as well as the subject
child's discovery of hypodermic needles on his bed, was
sufficient to meet the father's burden to demonstrate a change in
circumstances (see Matter of Markey v Bederian, 274 AD2d 816,
817-818 [2000]; Matter of Weeden v Weeden, 256 AD2d 831, 832
[1998], lv denied 93 NY2d 804 [1999]).
As for Family Court's best interests analysis, we reject
the mother's contention that the court improperly relied upon
facts that were not in evidence. The court expressly based the
determination upon its findings that the mother had admittedly
abused heroin, that she had recently been adjudicated to have
neglected the younger child, that her home environment had been
"extremely unstable," that numerous people had been present in
her home and that she had been arrested for prostitution. These
findings are all supported by the record evidence, which
revealed, among other things, that the mother agreed to
participate in a drug rehabilitation program only after her drug
abuse led to neglect proceedings involving the younger child,
that she had not yet completed the program and that, by her own
admission, she had "slipp[ed]" once by using heroin after
entering the program.3
We agree with the mother that there was no basis in the
evidence for Family Court's remark that she was a "known
prostitute." The testimony established only that the mother had
been arrested and incarcerated upon charges that remained pending
3
Contrary to the mother's claim, Family Court did not find
that the mother had sold drugs in the presence of the children,
but instead declined to credit her testimony that she did not use
drugs in their presence, while noting in passing that sales had
also "possibly" occurred (emphasis added). Upon review, we do
not find that this comment was a basis for the custody
determination.
-5- 521452
and unresolved at the time of the fact-finding hearing.
Nevertheless, the remaining admissible evidence, including
testimony regarding the parties' mutual animosity and distrust as
well as various incidents revealing the mother's poor parental
judgment, provided the requisite sound and substantial basis for
the court's custody decision (see Matter of Hudson v Hudson, 279
AD2d 659, 660-661 [2001]; see also Matter of Bush v Bush, 104
AD3d 1069, 1071-1072 [2013]). Thus, we find this error to be
harmless (see Matter of Bartlett v Jackson, 47 AD3d at 1078;
Posporelis v Posporelis, 41 AD3d 986, 990 [2007]). The mother's
remaining contentions have been considered and found to be
without merit.
Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court