Opinion
8097 8097A
01-15-2019
In re JOSEPHINE F., Petitioner–Appellant, v. RODNEY W., Respondent–Respondent.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), attorney for the child.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), attorney for the child.
Sweeny, J.P., Richter, Kapnick, Gesmer, Kern, JJ.
"[T]here is a rebuttable presumption that visitation by a noncustodial parent is in the child's best interest and should be denied only in exceptional circumstances" ( Matter of Ronald C. v. Sherry B., 144 A.D.3d 545, 546, 42 N.Y.S.3d 2 [1st Dept. 2016], lv dismissed 29 N.Y.3d 965, 51 N.Y.S.3d 498, 73 N.E.3d 855 [2017] ). "Although denial of visitation is a drastic remedy, it is warranted where compelling reasons and substantial evidence show that visitation would be detrimental to the child" ( Matter of Harry S. v. Olivia S.A., 143 A.D.3d 531, 531, 39 N.Y.S.3d 24 [1st Dept. 2016], lv denied 28 N.Y.3d 910, 2016 WL 7236816 [2016] [internal quotation marks omitted] ).
The court's determination that visitation with petitioner would be detrimental to the child's emotional well-being has a sound and substantial basis in the record (see Matter of Brandy V. v. Michael P., 151 A.D.3d 618, 619, 54 N.Y.S.3d 294 [1st Dept. 2017] ). Prior orders of which the court took judicial notice demonstrate that petitioner has been found to have neglected her other nine children ( Matter of Rodney W. v. Josephine F., 126 A.D.3d 605, 606, 6 N.Y.S.3d 239 [1st Dept. 2015], lv dismissed 25 N.Y.3d 1187, 16 N.Y.S.3d 46, 37 N.E.3d 103 [2015] ), and that her parental rights to one child were terminated after she failed to visit the child and failed to cooperate with referrals for mental health services, individual counseling and parental skills training (see Matter of Starlaylah C. [Josephine F.], 132 A.D.3d 556, 19 N.Y.S.3d 41 [1st Dept. 2015], lv denied 26 N.Y.3d 916, 2016 WL 116200 [2016] ). The record supports the court's conclusion that petitioner is "in complete denial" and lacks insight into her own responsibility for her parenting failures.
Petitioner also raises evidentiary objections to the forensic's testimony. Rather than resolve those, we rely only on the other evidence in the record: the prior court orders, the testimony of respondent, and the testimony of petitioner, including her testimony that she completed a parenting program.
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Further, the father testified that caring for the child, who has serious developmental issues, is like caring for an infant. The child needs constant supervision, a strict routine, repetitive redirection and patience. Based on the evidence presented at the hearing, petitioner would be unable to provide the necessary stability to care for the child. Thus, considering the child's special needs, petitioner's prior history with her other children, and her failure to address her mental health issues, exceptional circumstances exist to support the court's decision to deny her visitation.
Petitioner's argument that the court abused its discretion in denying her counsel's request for an adjournment of one session of the hearing is unpreserved for appellate review (see Matter of Loretta C.W. v. Mark A.W., 77 A.D.3d 588, 909 N.Y.S.2d 361 [1st Dept. 2010] ). Were we to consider the argument, we would conclude that the court providently exercised its discretion in denying petitioner's request for an adjournment based on a claimed medical emergency (see Cohen v. Cohen, 120 A.D.3d 1060, 1063–1064, 993 N.Y.S.2d 4 [1st Dept. 2014], lv denied 24 N.Y.3d 909, 2014 WL 6475220 [2014] ).