Opinion
07-07-2016
In re DANIEL O. and Another, Children Under Eighteen Years of Age, etc., Commissioner of Administration for Children's Services of the City of New York, Petitioner–Appellant, Jaquan O., et al., Respondents–Respondents.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellant. The Bronx Defenders, Bronx (Saul Zipkin of counsel), for Jaquan O., respondent. Law Office of Elisa Barnes, New York (Elisa Barnes of counsel), for Sylvia F., respondent. Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellant.
The Bronx Defenders, Bronx (Saul Zipkin of counsel), for Jaquan O., respondent.
Law Office of Elisa Barnes, New York (Elisa Barnes of counsel), for Sylvia F., respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.
Orders, Family Court, Bronx County (Ruben A. Martino, J.), entered on or about April 8, 2016, which, to the extent appealed from, granted respondents' motion for unsupervised visitation of the subject children during the pendency of the abuse and neglect proceedings against them, unanimously reversed, on the law and in the exercise of discretion, without costs, and the motion denied.
Family Court's determination lacks a sound and substantial basis in the record, which shows that unsupervised visitation would not be in the children's best interests (see Family Ct. Act § 1030[c] ; Matter of Frank M. v. Donna W., 44 A.D.3d 495, 495–496, 844 N.Y.S.2d 22 [1st Dept.2007] ). The abuse and neglect petitions against respondents, the children's biological parents, are grounded in the life-threatening head injuries and rib fractures sustained by one of the children when he was only three months old and in respondents' exclusive care. Family Court granted unsupervised visitation even though a fact-finding hearing on the petitions had not yet been conducted. Given the serious allegations of abuse committed against the eldest child, it was an improvident exercise of discretion for Family Court, without the benefit of a full fact-finding hearing, to order unsupervised visitation (Matter of Frank M., 44 A.D.3d at 495, 844 N.Y.S.2d 22 ; Matter of Bree W. [Jennifer F.], 98 A.D.3d 522, 949 N.Y.S.2d 185 [2d Dept.2012] ). It would be in the children's best interests to continue with supervised visitation pending a full fact-finding hearing and final determination of the petitions (Matter of Bree W., 98 A.D.3d at 523, 949 N.Y.S.2d 185 ).
MAZZARELLI, J.P., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ., concur.