Opinion
V-822-08/09B.
Decided January 8, 2010.
Paul H. Hadley, Esq., for Petitioner.
Abbie Goldbas, Esq., for Respondent.
Richard F. Marris, Esq., Law Guardian.
Julie A. Jones, Esq., Madison County Dept. of Social Services, Interested Party.
Petitioner is the father of "Wyatt P." (currently age 2) and respondent is Wyatt's mother. Petitioner seeks to have visitation with Wyatt at the Attica Correctional Facility where he is serving a determinate sentence of 23 years following his 2008 conviction for first degree manslaughter in connection with the death of respondent's 3-year old son (and Wyatt's half-brother), "Tyler G." The respondent opposes the petition.
On the evening of February 6, 2008, petitioner was at what was then the parties' apartment taking care of Tyler and Wyatt while the respondent was at work. Wyatt was then nine months old. Respondent and Tyler's father had a shared custody arrangement whereby Tyler would reside with each for one week at a time.
From the time of Wyatt's birth, each of the parties had tended to his needs, feeding him, changing him, bathing him, and the like. Respondent did not work outside the home until she secured employment sometime in January. Up to that time, she had been the primary caregiver but she concedes that petitioner was attentive to Bradley when he was not at work and shared in the responsibilities related to his rearing.
On that particular evening, after putting Wyatt down for the night, petitioner summoned paramedics to the apartment where Tyler was found to be non-responsive as the result of an apparent head injury. Tyler was transported by ambulance to a hospital in Syracuse where he underwent emergency surgery in an attempt to lessen the damage being caused by brain swelling. Despite those efforts, half of Tyler's brain infarcted some hours later, and the other half infarcted the following day leaving brain activity only in the brain stem. In due course, Tyler's family had to make the painful decision to withdraw artificial life support and, some weeks later on March 1, Tyler expired.
Petitioner was subsequently indicted and a week-long non-jury trial was held before me in County Court in September, 2008. Among the prosecution's witnesses was Tyler's attending physician who testified that the nature and severity of the child's injuries, including bilateral retinal hemorrhaging, were not, as petitioner testified, the result of the child being accidentally dropped from an approximate height of six feet onto a carpeted floor. Instead, they were what might be expected had Tyler been struck by a car or fallen from a third- or fourth-story window. That opinion was shared by the deputy medical examiner who performed the autopsy. He concluded that Tyler's injuries would have been caused by Tyler being hurled with great force or acceleration into some stationary object and that a simple fall onto a carpet as the petitioner had described it could not have resulted in so massive an injury.
Petitioner originally reported that Tyler had been injured when he fell down a flight of stairs. When the doctors treating Tyler expressed doubts that the injuries were caused in that manner, petitioner told police that he had been holding Tyler overhead and spinning him around in an effort to make him dizzy. At that point, petitioner testified, he lost his balance, fell, and dropped Tyler onto the carpeted floor.
While the criminal proceedings were pending, the Madison County Department of Social Services (DSS) commenced child abuse and neglect proceedings against petitioner on February 19, 2008. Following Tyler's death, an amended petition was filed alleging that petitioner was responsible for severely abusing Tyler and for derivatively neglecting Wyatt.
The amended petition further alleged that petitioner was responsible for the derivative neglect of his daughter, "Chloe P." Chloe, currently 6 years old, is the daughter of petitioner and "Linda F." Consequently, she was not related by blood or marriage to Tyler. She was not present in the apartment on the night of February 6, 2008. She did, however, have a significant relationship with petitioner prior to that night and her mother failed to appear in opposition to petitioner's request to have visitation with her at the Attica Correctional Facility. Because of the lack of opposition, Chloe's desire to see her father, and the lack of any restriction on contact contained in the Article 10 dispositional order, petitioner's application for visitation with Chloe has been approved.
A Family Court order was signed on June 18 allowing the petitioner to have visitation with Wyatt in the Madison County Jail twice a month to be supervised by either DSS or petitioner's mother.
The criminal trial ended on September 26 with a verdict convicting the petitioner of one count of first degree manslaughter. He was sentenced on November 21 to a determinate period of 23 years' incarceration.
The petitioner has never accepted any criminal responsibility for Tyler's death. Instead, he claimed prior to, during and after the criminal trial that the child died accidentally while the two of them were "rough-housing."
The Family Court proceedings were resolved on November 26, 2008 (five days after petitioner's sentencing in County Court and prior to his transfer from the Madison County Jail to the Department of Correctional Services) with an order adjudicating the petitioner to be responsible for child abuse and derivative neglect and directing, by way of disposition, that petitioner comply with an accompanying order of protection. The order of protection directed that the petitioner was to stay away from Wyatt, except that there could be supervised visitation only as arranged and approved by Wyatt's mother, the respondent herein. The order of protection remains in effect until Wyatt's eighteenth birthday. The Order of Fact-Finding and Disposition (hereafter, "the dispositional order") and the order of protection were each dated February 5, 2009 and entered on February 11, 2009 under Docket No. NA-649-08. No appeal has ever been taken.
Nothing in the dispositional order or the order of protection restricts the petitioner's contact with his daughter, Chloe.
The application now before this court states that petitioner seeks the modification of the June 18 visitation order. That order, being temporary in nature, is deemed to have been subsumed in the dispositional order. It is, thus, the latter order which the petitioner now seeks to modify. Although the petition is filed as if the application were in the nature of a proceeding under Article 6 of the Family Court Act, it is actually an application to modify an order made under Article 10 and, as such, it is subject to the "good cause shown" requirement contained in § 1061 of the Family Court Act. That requirement is an expression by the Legislature of the strong policy in this State that Family Court should have continuing jurisdiction in abuse and neglect proceedings in order to protect the subject child's ongoing best interests. Matter of Angelina AA, 222 AD2d 967 (3d Dept 1995).
Ordinarily, visitation between a child and the non-custodial parent is presumed to be in the child's best interest and, in a typical case, that presumption is not overcome simply by proof that the non-custodial parent is incarcerated. Matter of Perry v. Perry , 52 AD3d 906 (3d Dept 2008), lv. den. 11 NY3d 707 (2008); Matter of Cole v. Comfort , 63 AD3d 1234 (3d Dept 2009), lv. den. 13 NY3d 706 (2009). The presumption is rebutted only by proof of some exceptional circumstance demonstrating that visitation would be detrimental to the child ( Matter of Albanese v. Albanese , 44 AD3d 1117 [3d Dept 2007]; Matter of Goldsmith v. Goldsmith, ___ AD3d ___, 2009 NY Slip Op 08918, [3d Dept 12/3/09]) or that the petitioning parent had previously shown little or no interest in the child ( Matter of Dantzler v. McKane , 48 AD3d 937 [3d Dept 2008], lv. den. 10 NY3d 709).
Here, however, because of Family Court's finding that the petitioner derivatively neglected Wyatt, his right to visitation with Wyatt no longer flows from his status as Wyatt's natural parent but instead flows exclusively from Family Court's dispositional order. Matter of Angelina AA, supra, at 969. For that reason, the presumption that would otherwise govern this issue is inapplicable under these circumstances. Rather than being able to rely on the presumption, the petitioner is required to show good cause for the modification of the dispositional order.
The facts in Matter of Melissa "FF", 285 AD2d 682 (3d Dept 2001) are strikingly similar to those in the case at bar. There, a father was found in Family Court to have sexually abused two of his children and to have derivatively neglected his other three. The dispositional order directed that he was to have no contact with any of his children until he completed sex abuse counseling. An order of protection to that effect was entered. In the related criminal matter, the father was convicted and sentenced to probation supervision which he subsequently violated and was thereafter sentenced to incarceration. He then petitioned under Family Court Act Article 6 for visitation with his children. Family Court treated that application as if it had been brought under § 1061 and dismissed it without a hearing for want of any showing of good cause.
The Appellate Division affirmed the dismissal, finding that ". . . in support of his petition for visitation, (the father) offered nothing more than his conclusory assertion that such visitation would be in the children's best interests because he was their father and the children needed both a mother and a father in their lives." Matter of Melissa "FF", supra, at 683.
Here, Wyatt is not yet three years old. He has not resided with his father in nearly two years and he has had no contact with him since November, 2008. He was little more than nine months old when the petitioner was arrested and there is nothing in the record to demonstrate that Wyatt has any memory of his father or any relationship with him. Nothing in the record suggests that Wyatt is suffering in any respect from lack of contact with his father. The petitioner failed to allege in his petition or to offer any proof at the fact-finding hearing that Wyatt's best interests require the modification of the dispositional order.
Accordingly, his petition must be dismissed.
IT IS SO ORDERED.