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