IN RE: ASHLEE NN. (2026)

MEMORANDUM AND ORDER

Appeals (1) from an order of the Family Court of Chenango County (Diane Distefano, J.), entered July 31, 2025, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 8, for an order of protection, and (2) from an order of said court, entered July 31, 2025, which, in a proceeding pursuant to Family Ct Act article 8, granted respondent's motion to dismiss the petition at the close of petitioner's proof.

Petitioner and respondent were in a six-year relationship, during which time petitioner and her children lived in respondent's home.  After moving out of the home with her children due to allegedly abusive behavior by respondent, petitioner filed a family offense petition seeking an order of protection against respondent, and Family Court issued a temporary stay-away order of protection.  Shortly thereafter, petitioner filed a violation petition asserting that respondent had violated the temporary order of protection.  A combined fact-finding hearing was held, during which both parties testified.  At the close of petitioner's testimony, the court dismissed her violation petition, and at the close of all proof, the court dismissed her family offense petition.  Petitioner appeals.¹

Initially, petitioner argues that the portion of her family offense petition alleging harassment in the second degree and aggravated harassment in the second degree was improperly dismissed.  “In a family offense proceeding, the petitioner bears the burden of proving by a fair preponderance of the evidence that the respondent committed one of the family offenses enumerated within Family Ct Act § 821(1)(a).  In reviewing Family Court's determination, we pay deference to the court's factual findings and credibility determinations, and we will not disturb those assessments if they are supported by a sound and substantial basis” (Matter of Samah DD. v. Mark VV., 235 AD3d 1116, 1117–1118 [3d Dept 2025], lv denied 44 NY3d 901 [2025] [internal quotation marks, brackets, footnote and citations omitted];  see Matter of Robert Q. v. Miranda Q., 138 AD3d 1174, 1175 [3d Dept 2016] ).

Petitioner claims that various parts of her hearing testimony were sufficient to sustain the family offenses in question, but Family Court found petitioner's testimony not to be credible, noting that she was evasive when answering questions and appeared overly angry toward respondent in court, with the court having to admonish her about her disruptive behavior.  Nevertheless, petitioner also contends that, even disregarding her own testimony, respondent's testimony alone established these offenses due to his admission that he called petitioner on the telephone repeatedly one night.  We are unpersuaded.  It is true that respondent admitted to calling petitioner 11 times shortly after she moved out of his home, but there was no evidence concerning the context of this series of calls, what was discussed, how petitioner reacted or whether she indicated to him that she wanted him to stop calling (compare Matter of Samah DD. v. Mark VV., 235 AD3d at 1120).  Under these circumstances and deferring to Family Court's credibility determinations, we find a sound and substantial basis in the record for its conclusion that petitioner did not meet her burden of establishing harassment in the second degree or aggravated harassment in the second degree (see Matter of Boltz v. Geraci, 230 AD3d 1450, 1454 [3d Dept 2024] ).

We also discern no error in Family Court's decision to preclude petitioner's testimony about an incident wherein respondent allegedly “punched [a] bedroom door in half” in front of her children, as this allegation was not included in the petition (see id. at 1452 n 1;  Matter of Andreija N. [Michael N.-Tiffany O.], 206 AD3d 1081, 1084 [3d Dept 2022] ).  In any event, we note that respondent volunteered information about the incident, and petitioner's counsel was permitted to question him about it.  Petitioner's remaining contention regarding Family Court's purported failure to properly consider and weigh the evidence has been reviewed and found to be without merit.

ORDERED that the orders are affirmed, without costs.

FOOTNOTES

1.   Insofar as petitioner has advanced no contention concerning the dismissal of her violation petition, her appeal from that order is deemed abandoned (see Matter of Saleena E. [Anna F.-Marcus E.], 243 AD3d 1129, 1130 n 2 [3d Dept 2025] ).

Ceresia, J.

Clark, J.P., Pritzker, Mackey and Corcoran, JJ., concur.