In the Matter of Kole Hh. And Another

• Decision Date: 12 May 2011
• Citation: 84 A.D.3d 1518,923 N.Y.S.2d 760,2011 N.Y. Slip Op. 03928
• Parties: In the Matter of KOLE HH. and Another, Alleged to be Neglected Children.Broome County Department of Social Services, Respondent;Thomas HH., Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1518

923 N.Y.S.2d 760

2011 N.Y. Slip Op. 03928

In the Matter of KOLE HH. and Another, Alleged to be Neglected Children.Broome County Department of Social Services, Respondent;Thomas HH., Appellant, et al., Respondent.

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

May 12, 2011.

Kelly M. Corbett, Fayetteville, for appellant.Philomena Stamato, Broome County Department of Social Services, Binghamton, for respondent.Susan B. Marris, Manlius, attorney for the children.Before: PETERS, J.P., SPAIN, KAVANAGH, STEIN and McCARTHY, JJ.KAVANAGH, J.

Appeals (1) from an order of the Family Court of Broome County (Charnetsky, J.), entered April 9, 2010, which, in a proceeding pursuant to Family Ct. Act article 10, denied a motion by respondent Thomas HH. to, among other things, vacate a prior order, (2) from an order of said court, entered July 21, 2010, which, among other things, placed respondent Thomas HH. under the supervision of petitioner, and (3) from orders of protection issued thereon.

Respondent Thomas HH. (hereinafter respondent) and respondent Linda QQ. ¹ (hereinafter the mother) are the parents of two sons, Kole HH. and Andrew HH. (born in 1999 and 2007, respectively). Petitioner commenced this Family Ct. Act article 10 proceeding claiming that, among other things, respondent had derivatively neglected the two children because he had sexually abused their nine-year-old relative (hereinafter the victim). After a fact-finding hearing, Family Court dismissed the petition. On appeal, however, this Court modified that order and issued a determination that respondent had derivatively neglected the children and remitted the matter to Family Court for further proceedings ( 61 A.D.3d 1049, 876 N.Y.S.2d 199 [2009], lv. dismissed 12 N.Y.3d 898, 884 N.Y.S.2d 679, 912 N.E.2d 1058 [2009] ).

After the dispositional proceedings had commenced, respondent sought, by order to show cause, to vacate the finding of derivative neglect and to hold a new fact-finding hearing ( see Family Ct. Act § 1061; CPLR 5015[a] ) because new evidence had been discovered indicating that the victim had recanted her claim that respondent had sexually abused her. After it denied this application and upon completion of the dispositional hearing, Family Court issued an order, entered July 21, 2010, that, among other things, placed respondent under petitioner's supervision, limited his access to the children to weekly telephone contact and two hours of visitation each week to be supervised by the mother and required respondent to cooperate with petitioner. Additionally, the court issued two orders of protection directing that respondent have no unauthorized contact with the children until each child reached the age of 18. Respondent now appeals from Family Court's refusal to vacate the finding of derivative neglect, the July 2010 dispositional order and the orders of protection regarding the two children.

In refusing to vacate the finding of derivative neglect, Family Court specifically found that the new evidence submitted by respondent lacked “any indicia of reliability” that would have produced a different result. While respondent's evidence included affidavits from himself, the mother and his own mother, we note that no corresponding affidavit was submitted from the victim recanting her testimony, nor is there any evidence from members of her immediate family that she, at any time, stated that respondent did not sexually abuse her. As such, we conclude that respondent failed to show “good cause” to vacate the prior neglect order (Family Ct. Act § 1061; see Matter of Gabriella R. [Mindyn S.], 68 A.D.3d 1487, 1488–1489, 891 N.Y.S.2d 539 [2009], lv. dismissed 14 N.Y.3d 812, 899 N.Y.S.2d 752, 926 N.E.2d 256 [2010] ), and that Family Court did not abuse its discretion in denying respondent's motion without a hearing ( see Family Ct. Act §§ 1061, 1064; Matter of Cadejah AA., 34 A.D.3d 1141, 1142, 825 N.Y.S.2d 313 [2006]; Matter of Carrie F. v. David PP., 34 A.D.3d 1108, 1109, 825 N.Y.S.2d 791 [2006] ). Moreover, we agree with Family Court's finding that this “newly-discovered evidence,” given its timing and its source, would not have made a difference at a hearing or have “produced a different result” (CPLR 5015[a][2]; see Matter of Troy SS. v. Judy UU., 69 A.D.3d 1128, 1134, 894 N.Y.S.2d 186 [2010], lv. dismissed and denied 14 N.Y.3d 912, 904 N.Y.S.2d 690, 930 N.E.2d 764 [2010] ).

Respondent also claims that Family Court's dispositional order lacked a sound and substantial basis in the record and was not in the children's best interests. Specifically, respondent takes issue with the time limits the order imposes on his supervised visits with the children and its provision that the only other person that can be present during these visits is the maternal grandmother. While the...