NOTICE: Pursuant to Section 1113 of the Family Court Act, an appeal from this Order must be taken within 30 days of receipt of the Order by Appellant in Court, 35 days from the date of mailing of the Order to the Appellant by the Clerk of Court, or 30 days after service by a party upon the Appellant, whichever is earliest. ORDER FOLLOWING FACT-FINDING A petition under Article 8 of the Family Court Act having been filed, and Petitioner Shaquia Simmons (“petitioner”) having appeared with counsel Kellisia Hazelwood, Esq., and Respondent Earl Webber (“respondent”) having appeared pro se, and this matter having duly come on for a fact-finding hearing before this court, the court hereby makes the following findings of fact deemed established by the evidence and reaches its conclusions of law. Family Court Act §832 provides that a petitioner alleging the commission of a family offense must prove the allegations at a fact-finding hearing “by a fair preponderance of the evidence” for the purpose of obtaining an Order of Protection (Matter of Zhuo Hong Zheng v. Hsin Cheng, 144 AD3d 1166, 1167 [2nd Dept. 2016]; see Matter of Kiani v. Kiani, 134 AD3d 1036, 1037 [2d Dept. 2015]; see Matter of Tulshi v. Tulshi, 118 AD3d 716 [2d Dept. 2014]). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Crenshaw v. Thorpe- Crenshaw, 146 AD3d 951, 952 [2d Dept. 2017]; Matter of Konstatine v. Konstatine, 107 AD3d 994[2d Dept. 2013]). “Great deference is given to the Family Court’s credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear their testimony and observe their demeanor” (Matter of Ava A. [Steven A.], 179 AD3d 666, 669 [2d Dept. 2020]; see Matter of Magana v. Delph, 163 AD3d 673 [2d Dept. 2018]). Indeed, it has been said that the hearing court “has the best vantage point for evaluating the credibility of the witness[.]” (In re Everett C. v. Oneida P., 61 AD3d 489[1st Dept 2009]). Applying these legal principles to the matter at bar, the court notes that at trial in this matter, petitioner testified that petitioner has no biological relationship to respondent, a claim that is at odds with her signed petition. Notably, respondent reiterated during respondent’s testimony that he has no biological relationship to respondent. The Family Court is a court of limited jurisdiction and thus “cannot exercise powers beyond those granted to it by statute” (Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366 [2008]); see N.Y. Const., art. VI, §13; Family Ct. Act §115). Pursuant to Family Court Act §812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct. Act §812 [1]). Here, it is undisputed that petitioner and respondent are not legally married to one another (Family Court Act §812 [1][b]), nor were they ever married (Family Court Act §812 [1][c]). It is also undisputed that they do not have a child in common (Family Court Act §812 [1][d]). Moreover, petitioner and respondent are not related by consanguinity and affinity (Family Ct. Act §812 [1] [a]). Finally, it is conceded by both petitioner and respondent that they were never in a sexual relationship (see Sonia S., v. Pedro Antonio S., 139 AD3d 546 [1st Dept. 2016]). As such, the only basis to conclude that a qualifying relationship exists here is the Legislature expanded the definition of “members of the same family or household” (Family Ct. Act §812[1][e][emphasis added]). Given petitioner and respondent’s admitted infrequent and remote communications with one another, it is arguable that they do not have a qualifying relationship under Article 8 of the Family Court Act. Assuming, however, that they did have a qualifying relationship, petitioner testified that her mother met respondent when petitioner was five or six years old, and that petitioner’s relationship with respondent was subsequently chaotic and abusive. For instance, petitioner testified that she endured incidents of corporal punishment at the hands of respondent more than three decades ago. Petitioner conceded on cross-examination that several of those claims had been previously investigated, and that no action was taken against respondent. On cross-examination, petitioner further conceded that she has had no recent interactions with respondent, and that respondent does not pose an ongoing threat to petitioner. Indeed, petitioner testified that her last altercation with respondent was in 2001, over twenty years ago, when petitioner states that respondent allegedly struck her. Respondent did not deny striking petitioner. Rather respondent testified that he did so to prevent petitioner from harming petitioner’s twin sister. Under Family Court Act §812 (1), a petition cannot be dismissed “solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition,” but it can be dismissed if the events are not contemporaneous and there is a finding that the petition fails to “sufficiently plead conduct constituting a pattern of imminent and ongoing danger” (Latava P. v. Charles W., 171 AD3d 525 [1st Dept 2019]). Here, the events in question are several years removed from the present, and do not illustrate a continuing “pattern of imminent and ongoing danger” (id.). Indeed, petitioner conceded that respondent has not threatened petitioner in years, and that petitioner and respondent’s interactions over the last twenty years have been cordial. As such, petitioner’s petition must be dismissed. In total, the testimony elicited during the hearing revealed that respondent was at most a surrogate parental figure to petitioner decades ago, and occasionally instituted corporal punishment against petitioner. Said conduct was purportedly investigated thereafter and did not result in any corroborated reports of abuse or neglect. While respondent admitted to hitting petitioner more than twenty years ago, respondent claimed that he did so to prevent petitioner from attacking her sister. Since that time, petitioner agreed that her interactions with respondent have been friendly and pleasant. Indeed, petitioner even alluded to attending respondent’s birthday while her mother was alive. Nothing in this testimony reveals a pattern of ongoing threatening behavior sufficient to warrant the issuance of an Order of Protection against respondent. Beyond these observations, the court notes that much of petitioner’s testimony was incredible on its face insofar as petitioner exhibited a generally hostile demeanor and made repeated phantastic descriptions of the events in question. In contrast, respondent was poised and collected throughout his testimony. Indeed, respondent was trustworthy and believable, while petitioner exhibited a demeanor and cadence that was dishonest and that appeared to be premised on a general animus towards respondent rather than genuine fear spawned by respondent’s purported actions and continued risk to petitioner. Taken as a whole, petitioner fell short of meeting her necessary burden. Notably, even if this court had credited petitioner’s testimony, none of the conduct alleged by petitioner appears to have credibly shown the violation of any qualifying family offenses, particularly when one considers that the only arguably qualifying offenses occurred over two decades ago and do not speak to a “pattern of imminent and ongoing danger” (Latava P., 171 AD3d 525, supra). In accordance with the foregoing, the court denies petitioner’s petition against respondent, and dismisses the petition in its entirety. The Temporary Order of Protection is hereby vacated. The foregoing constitutes the decision and order of the court following a fact-finding. Dated: October 4, 2022
