IN RE: ATTORNEY FOR THE CHILD (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Franklin County (Craig P. Carriero, J.), entered April 7, 2022, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for an order of visitation.

Respondent John J. (hereinafter the father) and respondent Kaylalyn I. (hereinafter the mother) are the parents of a child (born in 2012);  nonparty Kelly L. is the child's former foster mother.¹  In August 2015, Family Court of St. Lawrence County (Richards, J.) entered an order on consent granting the father sole legal and primary physical custody of the child and, as relevant here, visitation with the former foster mother.  Five years later, in June 2020, the father commenced a proceeding to modify the August 2015 order by terminating the former foster mother's visitation.  Following a hearing, Family Court of Franklin County (Main Jr., J.) concluded that there was no legal authority to mandate such contact over the father's objection, and, by order entered in September 2021, terminated the child's visitation with the former foster mother (Matter of J.W. v. K. M., 73 Misc.3d 385, 391–392, 153 N.Y.S.3d 797 [Fam. Ct., Franklin County 2021]).

No appeal was taken from that order.  Then, in March 2022, petitioner, the attorney for the child,² commenced this Family Ct Act article 6 proceeding on behalf of the child seeking an order directing visitation with the former foster mother, asserting that the child has an independent, constitutionally protected liberty interest in maintaining contact with her.  Family Court (Carriero, J.) dismissed the petition without a hearing.  Petitioner appeals.

We affirm.  “In seeking to modify the visitation, it was petitioner's initial burden to demonstrate a change in circumstances sufficient to warrant a review of the [child's] best interests since the prior order and, if this burden was met, to next demonstrate that modification was in the [child's] best interests” (Matter of Attorney for the Children v. Barbara N., 152 A.D.3d 903, 903–904, 58 N.Y.S.3d 728 [3d Dept. 2017] [citations omitted]).  Although petitions seeking modifications of prior orders pursuant to Family Ct Act article 6 generally require a hearing, no hearing is required where the petitioner fails to “make a sufficient evidentiary showing demonstrating a real need for change” (Matter of Clinton v. Backus, 160 A.D.3d 1073, 1074, 73 N.Y.S.3d 294 [3d Dept. 2018];  see Matter of Nathan PP. v. Angela PP., 205 A.D.3d 1082, 1083–1084, 167 N.Y.S.3d 247 [3d Dept. 2022];  Matter of Sarah OO. v. Charles OO., 198 A.D.3d 1151, 1152, 156 N.Y.S.3d 488 [3d Dept. 2021]).  Here, petitioner failed to allege any change in circumstances since the entry of the September 2021 order;  as such, Family Court properly dismissed the petition without a hearing (see Matter of William O. v. John A., 148 A.D.3d 1258, 1259–1260, 49 N.Y.S.3d 192 [3d Dept. 2017], lv denied 29 N.Y.3d 908, 2017 WL 1843411 [2017];  Matter of Clinton v. Backus, 160 A.D.3d at 1075, 73 N.Y.S.3d 294;  Matter of Chittick v. Farver, 279 A.D.2d 673, 675–676, 719 N.Y.S.2d 305 [3d Dept. 2001]).

In light of our conclusion, petitioner's remaining contentions, including petitioner's constitutional challenge, have been rendered academic.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The mother has not filed a brief in this appeal.  The former foster mother was not named in the petition.

2.   The child is represented by a different attorney on this appeal.

Aarons, J.

Clark, J.P., Reynolds Fitzgerald, McShan and Mackey, JJ., concur.