                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 31, 2016                    520246
_________________________________

In the Matter of JENNIFER
   MARIE SMITH,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
DEBBIE MARIE ANDERSON,
                    Respondent,
                    et al.,
                    Respondent.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   February 8, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


     Heather A. Clickner, Saratoga Springs, for appellant.

      Trinidad M. Martin, Glens Falls, for Debbie Marie Anderson
respondent.

      Elizabeth A. Donahue, Glens Falls, attorney for the
children.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Washington
County (Wait, J.), entered August 6, 2014, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.
                               -2-                520246

      Petitioner (hereinafter the mother) and respondent Shawn M.
Rock (hereinafter the father) are the parents of two daughters
(born in 2000 and 2001). In June 2003, the children's maternal
grandmother, respondent Debbie Marie Anderson (hereinafter the
grandmother), was awarded temporary custody of the girls pending
further proceedings. Following the filing of various petitions,
Family Court (Berke, J.) – in February 2004 – awarded the
grandmother sole legal and physical custody of the children; the
mother was granted supervised visitation, along with access to
the children's medical and school records.1 The mother
subsequently filed a modification petition and, in September
2009, Family Court (Pritzker, J.), upon stipulation of the
parties, awarded the mother unsupervised visitation with her
children at such times as she and the grandmother could mutually
agree.2

      In July 2013, the mother commenced the first of these
proceedings seeking to modify the September 2009 order and to
obtain sole legal and physical custody of her daughters.
Following service of an amended petition in March 2014, the
mother commenced the second of these proceedings in June 2014
seeking to enforce the terms of an unspecified Family Court order
that purportedly prohibited the grandmother from, among other
things, discussing the court proceedings with the children.3 On
July 21, 2014, two months after Family Court (Wait, J.) conducted
a Lincoln hearing, the parties appeared before the court for a
hearing on the mother's petitions – with Family Court hearing


     1
        The father apparently consented to the award of custody
to the grandmother.
     2
        The 2009 order indicated that the mother was seeking
modification of the June 2003 order – not the subsequently
entered February 2004 order.
     3
        Although the father was named as a respondent in the
mother's respective petitions, he did not file an answer and,
with the exception of a brief colloquy with Family Court (Wait,
J.) as to the issue of child support arrears, did not otherwise
appear or participate in these proceedings.
                              -3-                520246

testimony from the mother, her therapist and her sister. At the
conclusion of this first day of testimony, the mother indicated
that she had no additional witnesses and rested. Family Court
then inquired as to the number of witnesses that the grandmother
anticipated calling, in response to which counsel stated,
"Probably just my client, [J]udge." After consulting with
counsel regarding the amount of time that would be needed to
complete this testimony, Family Court scheduled the matter for a
continuation of the hearing on August 11, 2014. However, on
August 6, 2014, Family Court issued a written decision and order
dismissing the mother's modification and enforcement petitions
finding, among other things, that the grandmother had established
extraordinary circumstances and, further, that it would be in the
children's best interests to remain in her custody. The mother
now appeals.

      "[T]here is no question that modification of a Family Ct
Act article 6 custody order requires a full and comprehensive
hearing at which a parent is to be afforded a full and fair
opportunity to be heard" (Matter of Damian D. [Patricia WW.], 126
AD3d 12, 16 [2015] [internal quotation marks and citations
omitted]; see Matter of Schroll v Wright, 135 AD3d 1028, 1029
[2016]; Matter of Richardson v Massey, 127 AD3d 1277, 1278
[2015]; Matter of Whiteford v Jones, 104 AD3d 995, 996 [2013], lv
dismissed 21 NY3d 974 [2013]; Matter of Jeffrey JJ. v Stephanie
KK., 88 AD3d 1083, 1084 [2011]). Generally speaking, a full and
fair opportunity to be heard includes the "opportunity to cross-
examine a key witness" and to present evidence on one's own
behalf (Matter of Middlemiss v Pratt, 86 AD3d 658, 659 [2011]).
Here, while the mother indeed was permitted to call witnesses and
to testify on her own behalf, we are not persuaded that she was
afforded a full and fair opportunity to be heard, nor are we
persuaded that Family Court's resolution of these matters is
supported by a sound and substantial basis in the record.

      We note at the outset that it was the grandmother who bore
the burden of proof relative to the mother's custody petition.4


    4
        Had there been a prior judicial finding of extraordinary
circumstances, the mother would have been required to demonstrate
                               -4-                520246

In this regard, even assuming – without deciding – that the
grandmother could rely upon the mother's own testimony, together
with the "extended disruption of custody" provisions of Domestic
Relations Law § 72, to establish the requisite extraordinary
circumstances (see generally Matter of Aida B. v Alfredo C., 114
AD3d 1046, 1048 [2014]), the fact remains that "Family Court's
abrupt termination of the proceedings" (Matter of Richardson v
Massey, 127 AD3d at 1278 [internal quotation marks and citation
omitted]) precluded a meaningful best interests analysis, leaving
the court – in our view – with insufficient information upon
which to reach a reasoned conclusion on this point.5 Notably, as


a sufficient change in circumstances since entry of the prior
custody order and, if such a showing was made, that modification
of the prior order was warranted to ensure the children's
continued best interests (see Matter of Ray v Eastman, 117 AD3d
1114, 1114 [2014]; Matter of Cusano v Milewski, 68 AD3d 1272,
1273 [2009]). Absent such a finding, however, the mother was
"not required to prove a change in circumstances as a threshold
matter" (Matter of Dumond v Ingraham, 129 AD3d 1131, 1132-1133
[2015]; see Matter of McBride v Springsteen-El, 106 AD3d 1402,
1404 [2013]). Here, nothing on the face of the record provided
to this Court indicates that a prior finding of extraordinary
circumstances was in fact made. Further, despite some apparent
confusion on this point at the hearing, the grandmother has
acknowledged in her brief that, given the absence of such a
finding, she indeed was required to establish the existence of
extraordinary circumstances to warrant depriving the mother of
custody. Hence, despite the fact that the mother was the
petitioning party, it was the grandmother — as the nonparent –
who bore the initial burden of proof (see Matter of Rumpff v
Schorpp, 133 AD3d 1109, 1110 [2015]).
     5
        To the extent that the grandmother argues that this issue
is unpreserved for our review, we need note only that, given the
manner in which Family Court terminated the hearing, the mother
had no opportunity to object (see Matter of Richardson v Massey,
127 AD3d at 1278). Further, the mother's asserted failure to
subsequently move to reopen the proof cannot excuse Family
Court's failure to conduct a comprehensive hearing in the first
                              -5-                520246

it pertained to the grandmother, virtually no proof was adduced
with respect to any of the recognized best interests factors and,
absent such proof, Family Court could not properly assess and
weigh the parties' respective strengths and weaknesses, including
their "respective abilities to provide stable homes for the
children, their relationships with the children and ability to
guide and provide for them . . . and the parties' willingness to
foster a positive relationship between the children and the other
party" (Matter of Rumpff v Schorpp, 133 AD3d 1109, 1111 [2015]
[internal quotation marks, brackets and citation omitted]; see
Matter of Battisti v Battisti, 121 AD3d 1196, 1198 [2014]).
Again, even assuming that, based upon past performance, the
children were thriving in the grandmother's care, little to no
current information was provided to Family Court regarding, among
other things, the grandmother's health, home environment,
financial resources or relationship with the children.6

      More to the point, it is clear from the record that the
parties expected to return to court on August 11, 2014 for a
continuation of the hearing, at which the grandmother would
testify, and the absence of such testimony may well have impacted
the mother's presentation of her case, i.e., the mother
reasonably could have anticipated exploring certain issues on
cross-examination of the grandmother or offering additional
testimony to rebut the grandmother's proof. Under these
circumstances, and given the unexpected manner in which these
proceedings ended, it cannot be said that Family Court's
determination – dismissing both the mother's modification and
enforcement applications – was the product of a full and
comprehensive hearing conducted in accordance with basic
principles of due process. We are similarly unpersuaded that,
given the paucity of the proof adduced, Family Court's
determination is supported by a sound and substantial basis in


instance (compare Matter of Gary MM. [Girard MM.], 100 AD3d 1206,
1207 [2012]).
    6
        Indeed, the only testimony on this latter point came from
the mother, wherein she related that the grandmother was favoring
one child over the other.
                              -6-                  520246

the record. Accordingly, Family Court's order is reversed and
these matters are remitted for a new hearing.

      As a final matter, we do not find that Family Court abused
its discretion in failing to appoint separate attorneys for the
mother's children. While siblings' divergent interests may
warrant separate representation (see Matter of James I. [Jennifer
I.], 128 AD3d 1285, 1286 [2015]), the attorney for the children
here had represented their interests for a number of years, was
well acquainted with the parties' history, inquired of the
children as to their wishes and reported the children's
preferences to Family Court. Under these circumstances, we have
no quarrel with Family Court's decision to continue the joint
representation (see Barbara ZZ. v Daniel A., 64 AD3d 929, 933-934
[2009]; compare Corigliano v Corigliano, 297 AD2d 328, 329
[2002]).

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and matters remitted to the Family Court of Washington
County for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
