Opinion
727 CAF 19-00157
07-17-2020
In the MATTER OF MADALYNN W. Oswego County Department of Social Services, Petitioner-Respondent; Shawn W., Respondent-Appellant.
ROBERT J. GALLAMORE, OSWEGO, FOR RESPONDENT-APPELLANT. JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT. CATHERINE M. SULLIVAN, BALDWINSVILLE, ATTORNEY FOR THE CHILD.
ROBERT J. GALLAMORE, OSWEGO, FOR RESPONDENT-APPELLANT.
JEFFERY G. TOMPKINS, CAMDEN, FOR PETITIONER-RESPONDENT.
CATHERINE M. SULLIVAN, BALDWINSVILLE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, 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 10, respondent father appeals from an order that, inter alia, granted that part of petitioner's motion for summary judgment seeking a determination that the father derivatively abused the subject child, who was born after the father's underlying acts of severe abuse against another child. We affirm.
"In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists" ( Matter of Elijah L.J. [LaToya J.] , 173 A.D.3d 1184, 1185-1186, 105 N.Y.S.3d 470 [2d Dept. 2019] [internal quotation marks omitted]; see Matter of Dana T. [Anna D.] , 71 A.D.3d 1376, 1376, 896 N.Y.S.2d 545 [4th Dept. 2010] ; Matter of Seth G. , 50 A.D.3d 1530, 1531, 856 N.Y.S.2d 778 [4th Dept. 2008] ). "In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future" ( Elijah L.J. , 173 A.D.3d at 1186, 105 N.Y.S.3d 470 ). Here, petitioner established its entitlement to summary judgment by submitting, inter alia, evidence that the father had admitted to severely abusing the other child and evidence of the father's criminal conviction arising from that conduct. Under the circumstances of this case, the evidence of the father's conduct established that "the father had an impaired level of parental judgment so as to create a substantial risk of harm to any child residing in his care" ( Matter of Jovon J. , 51 A.D.3d 1395, 1396, 857 N.Y.S.2d 850 [4th Dept. 2008] [internal quotation marks omitted] ). The father failed to rebut the presumption that the impaired level of parental judgment that led to the underlying abuse continued to exist at the time petitioner initiated this proceeding (see Elijah L.J. , 173 A.D.3d at 1186, 105 N.Y.S.3d 470 ), especially inasmuch as approximately only two months elapsed between the father's underlying severe abuse of the other child and the commencement of this proceeding.
By failing to request an additional adjournment at the appearance at which Family Court heard petitioner's motion for summary judgment, the father failed to preserve for our review his contention that the court should have granted him an additional adjournment so that he could more fully respond to that motion (see generally 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, 2018 WL 1957464 [2018] ). The record belies the father's further contention that the court prevented him from presenting additional evidence in opposition to petitioner's motion. To the contrary, prior to deciding the motion, the court asked the father's counsel whether there was "anything else [counsel] want[ed] to add," and the father's counsel replied in the negative.
Lastly, we reject the father's contention that the court erred in denying his request for visitation with the child while the father is incarcerated. Although the rebuttable presumption in favor of visitation with a noncustodial parent applies even when the parent seeking visitation is incarcerated (see Granger v. Misercola , 21 N.Y.3d 86, 90-91, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ; Matter of Kelly v. Brown , 174 A.D.3d 1523, 1524, 108 N.Y.S.3d 258 [4th Dept. 2019], lv denied 34 N.Y.3d 907, 2020 WL 103976 [2020] ), that presumption was rebutted here by evidence that the child had no relationship with the father, that it would be difficult for the child to travel to see the father, and that, in light of the child's especially young age, visitation at the correctional facility would not serve the child's best interests (see Kelly , 174 A.D.3d at 1524, 108 N.Y.S.3d 258 ; Matter of Carroll v. Carroll , 125 A.D.3d 1485, 1486, 3 N.Y.S.3d 855 [4th Dept. 2015], lv denied 25 N.Y.3d 907, 2015 WL 2236985 [2015] ).