        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

75
CAF 14-02044
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


IN THE MATTER OF ROSE M. GIBSON,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

THOMAS W. MURTAUGH, JR.,
RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


TRACY L. PUGLIESE, CLINTON, FOR PETITIONER-APPELLANT.

JOHN J. RASPANTE, UTICA, FOR RESPONDENT-RESPONDENT.

PETER J. DIGIORGIO, JR., ATTORNEY FOR THE CHILDREN, UTICA.


     Appeal from an order of the Family Court, Herkimer County (John
J. Brennan, J.), entered October 16, 2014 in a proceeding pursuant to
Family Court Act article 8. The order dismissed the family offense
petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petition is
reinstated, and the matter is remitted to Family Court, Herkimer
County, for compliance with 22 NYCRR 202.44.

     Memorandum: In appeal No. 1, petitioner-respondent mother
appeals from an order that dismissed her family offense petition
brought pursuant to Family Court Act article 8 against
respondent-petitioner father. In appeal Nos. 2, 3, and 4, the mother
appeals from orders that, among other things, denied her petitions
brought pursuant to Family Court Act article 6 seeking custody of the
subject children, and granted the father’s petitions to modify a prior
order by directing that the mother’s visitation be supervised.

     We first address appeal Nos. 2, 3, and 4, which concern custody
and visitation. The mother failed to preserve for our review her
contention that the Judicial Hearing Officer (JHO) erred in admitting
in evidence medical records concerning her mental health. Contrary to
the mother’s further contention, the father established a sufficient
change in circumstances to warrant inquiry into whether the prior
order should be modified, and the JHO’s determination that it was in
the children’s best interests to impose supervised visitation is
supported by a sound and substantial basis in the record. The hearing
evidence established, among other things, that the mother’s mental
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                                                         CAF 14-02044

health issues resulted in several incidents of erratic behavior that
negatively affected the children and jeopardized their well-being, and
that the mother failed to adequately address those issues (see Matter
of Procopio v Procopio, 132 AD3d 1243, 1244, lv denied 26 NY3d 915;
Matter of Westfall v Westfall, 28 AD3d 1229, 1230, lv denied 7 NY3d
706).

     We reject the mother’s contention that the JHO abused his
discretion in denying her motion for recusal. “ ‘Where, as here,
there is no allegation that recusal is statutorily required . . . ,
the matter of recusal is addressed to the discretion and personal
conscience of the [JHO] whose recusal is sought’ ” (Matter of Herald v
Herald, 305 AD2d 1080, 1081; see Silber v Silber, 84 AD3d 931, 932).
The mother’s “allegations of bias are too speculative to warrant the
conclusion that the [JHO] abused [his] discretion in refusing to
recuse [himself] here” (Matter of Jason A.C. v Lisa A.C., 30 AD3d
1110, 1111 [internal quotation marks omitted]; see Matter of Owens v
Garner, 63 AD3d 1585, 1586).

     With respect to appeal No. 1, however, we agree with the mother
that Family Court erred in adopting the JHO’s report to dismiss the
family offense petition without providing the parties with notice of
the filing of the report and affording them an opportunity to object
to it (see 22 NYCRR 202.44 [a]; Matter of Witzigman v Witzigman, 132
AD3d 1426, 1427; Matter of Wilder v Wilder, 55 AD3d 1341, 1341). “The
record establishes that the [JHO] was authorized only to hear the
matter and issue a report inasmuch as the mother did not consent to
the referral to the [JHO] for a final determination on [her] petition”
(Witzigman, 132 AD3d at 1427). We therefore reverse the order in
appeal No. 1, reinstate the petition, and remit the matter to Family
Court for compliance with 22 NYCRR 202.44 (see id.).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
