1198 CAF 19-01571
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (HEIDI W. FEINBERG OF COUNSEL), FOR RESPONDENT-APPELLANT. WENDY S. SISSON, GENESEO, FOR PETITIONER-RESPONDENT. PAUL B. WATKINS, FAIRPORT, ATTORNEY FOR THE CHILDREN.
HAYDEN DADD, CONFLICT DEFENDER, GENESEO (HEIDI W. FEINBERG OF COUNSEL), FOR RESPONDENT-APPELLANT.
WENDY S. SISSON, GENESEO, FOR PETITIONER-RESPONDENT.
PAUL B. WATKINS, FAIRPORT, ATTORNEY FOR THE CHILDREN.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that granted petitioner mother's petition for modification of a prior stipulated custody and visitation order by awarding the mother sole custody of the two subject children and by suspending the father's visitation and communication with the children and any of their service providers. As a preliminary matter, it is undisputed on appeal that the father's incarceration upon his criminal conviction for sexually abusing an older sibling of the subject children constituted a sufficient change in circumstances to warrant an inquiry into whether modification of the stipulated custody and visitation order would be in the children's best interests (see Matter of Naquan V. v. Tia W. , 172 A.D.3d 1467, 1468, 99 N.Y.S.3d 491 [3d Dept. 2019] ; Matter of Knight v. Knight , 92 A.D.3d 1090, 1092, 940 N.Y.S.2d 325 [3d Dept. 2012] ; Matter of Cole v. Comfort , 63 A.D.3d 1234, 1235, 880 N.Y.S.2d 373 [3d Dept. 2009], lv denied 13 N.Y.3d 706, 915 N.E.2d 1181  ). Moreover, the father does not challenge Family Court's determination that, under the circumstances, granting the mother sole custody was in the children's best interests (see Matter of Poromon v. Evans , 176 A.D.3d 1642, 1643, 112 N.Y.S.3d 366 [4th Dept. 2019] ; Matter of Hares v. Walker , 8 A.D.3d 1019, 1020, 778 N.Y.S.2d 342 [4th Dept. 2004] ). Instead, the father contends that the court erred in determining that suspending all visitation and communication between himself and the children was in the children's best interests. We reject that contention for the reasons that follow.
Although visitation with a noncustodial parent is presumed to be in the best interests of the child, even when the parent seeking visitation is incarcerated (see Matter of Granger v. Misercola , 21 N.Y.3d 86, 90-91, 967 N.Y.S.2d 872, 990 N.E.2d 110  ), "the presumption may be rebutted when it is shown, ‘by a preponderance of the evidence, that visitation would be harmful to the child’ " ( Matter of Fewell v. Ratzel , 121 A.D.3d 1542, 1542, 993 N.Y.S.2d 608 [4th Dept. 2014], quoting Granger , 21 N.Y.3d at 92, 967 N.Y.S.2d 872, 990 N.E.2d 110 ). "[T]he propriety of visitation is generally left to the sound discretion of Family Court[,] whose findings are accorded deference by this Court and will remain undisturbed unless lacking a sound basis in the record" ( Matter of Brown v. Terwilliger , 108 A.D.3d 1047, 1048, 968 N.Y.S.2d 779 [4th Dept. 2013], lv denied 22 N.Y.3d 858, 981 N.Y.S.2d 368, 4 N.E.3d 380  [internal quotation marks omitted]).
Here, as a threshold matter on this issue, although the father failed to include in the record the transcript of the prior testimony of a school aide of which the court took judicial notice, we conclude that the unchallenged detailed review of that testimony elsewhere in the record, along with the full hearing testimony of all other witnesses, permits meaningful appellate review of the father's challenge to the court's suspension of all visitation and communication with the children (see Matter of Steven Glenn R. , 51 A.D.3d 802, 802-803, 859 N.Y.S.2d 197 [2d Dept. 2008] ). Nonetheless, to the extent that the father contends that the court erred in failing to afford him in-person visitation with the children at the correctional facility, that contention is not preserved for our review inasmuch as he never requested such visitation and, instead, requested only telephonic communication and written correspondence (cf. Matter of April L.S. v. Joshua F. , 173 A.D.3d 1675, 1677, 100 N.Y.S.3d 587 [4th Dept. 2019] ; see generally Matter of Anthony MM. v. Rena LL. , 34 A.D.3d 1171, 1172, 827 N.Y.S.2d 707 [3d Dept. 2006], lv denied 8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112  ).
With respect to the father's preserved contention, although the court did not expressly determine whether the presumption in favor of visitation with the father was rebutted, "the record is adequate to enable us to determine that the mother established by a preponderance of the evidence that, under all the circumstances, ‘visitation would be harmful to the child[ren's] welfare’ " ( Matter of Rulinsky v. West , 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [4th Dept. 2013], quoting Granger , 21 N.Y.3d at 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 ). The evidence, including the testimony of the mother and the school aide and the statements adduced at the Lincoln hearing with one of the subject children, established that the father was criminally convicted for sexually abusing the older sibling, that one of the subject children also disclosed sexual abuse by the father and exhibited behaviors indicative of such abuse, that prior telephone contact with the father was deeply disturbing to that child, and that the other subject child had not had contact with the father for years and feared him. Thus, although "visitation ‘need not always include contact visitation at the prison’ " ( Rulinsky , 107 A.D.3d at 1509, 969 N.Y.S.2d 268 ), we conclude that " ‘a sound and substantial basis exist[s] in the record for the court's determination that the visitation requested by [the father] would not be in the ... child[ren's] best interest[s] under the present circumstances’ " ( Matter of Bloom v. Mancuso , 175 A.D.3d 924, 926, 108 N.Y.S.3d 575 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 139 N.E.3d 392  ; see Matter of Newman v. Doolittle , 151 A.D.3d 1233, 1235, 56 N.Y.S.3d 385 [3d Dept. 2017] ; Matter of Kari CC. v. Martin DD. , 148 A.D.3d 1246, 1248, 49 N.Y.S.3d 189 [3d Dept. 2017] ).
The father failed to preserve for our review his further contention that the court's determination to suspend his communication with the children's service providers is based solely upon inadmissible hearsay (see Matter of Nicole J.R. v. Jason M.R. , 81 A.D.3d 1450, 1452, 917 N.Y.S.2d 495 [4th Dept. 2011], lv denied 17 N.Y.3d 701, 929 N.Y.S.2d 92, 952 N.E.2d 1087  ) and, in any event, we conclude that there is a sound and substantial basis in the record to support that determination (see generally Matter of Andrea C. v. David B. , 146 A.D.3d 1104, 1107, 46 N.Y.S.3d 676 [3d Dept. 2017] ).
The father also contends that reversal is required because the court did not advise him of his rights pursuant to Family Court Act § 262 (a) at the outset of the hearing. Here, the record reflects that the father already had assigned counsel by the time of the hearing and that the court, upon counsel's request, allowed the father, who appeared via telephone from his correctional facility, to confer privately with his counsel via telephone prior to proceeding with the hearing, at which his counsel appeared in person. Under such circumstances, we conclude that "there was no violation of the right to counsel or Family [Court] Act § 262" ( Matter of Holly J. v. Frederick X. , 95 A.D.3d 1595, 1597, 946 N.Y.S.2d 263 [3d Dept. 2012] ; see Matter of Delafrange v. Delafrange , 24 A.D.3d 1044, 1045-1046, 806 N.Y.S.2d 769 [3d Dept. 2005], lv denied 8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453  ). The father's related contention that the court should have granted an adjournment to provide him additional time to confer with counsel is not preserved for our review inasmuch as the father never requested an adjournment (see generally Matter of Madalynn W. [Shawn W.] , 185 A.D.3d 1458, 1459-1460, 128 N.Y.S.3d 392 [4th Dept. 2020] ; Matter of Jaydalee P. [Codilee R.] , 156 A.D.3d 1477, 1477, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 103 N.E.3d 781  ). Finally, to the extent that the father contends that he was denied effective assistance of counsel, we conclude that his contention lacks merit (see Matter of Ballard v. Piston , 178 A.D.3d 1397, 1398-1399, 116 N.Y.S.3d 829 [4th Dept. 2019], lv denied 35 N.Y.3d 907, 149 N.E.3d 67  ; Matter of Sullivan v. Sullivan , 90 A.D.3d 1172, 1175, 933 N.Y.S.2d 777 [3d Dept. 2011] ).