| Matter of Hobb Y. |
| 2008 NY Slip Op 09138 [56 AD3d 998] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Hobb Y. and Another, Neglected Children. BroomeCounty Department of Social Services, Respondent; Herbert Y.,Appellant. |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. Jehed Diamond, Law Guardian, Delhi.
Peters, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredJanuary 23, 2008, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 10, for modification of a prior order of disposition.
Respondent is the parent of two children, Marjorie (born in 1991) and Hobb (born in 1993).In the underlying Family Ct Act article 10 proceeding, the children were adjudicated to beneglected as a result of admissions by respondent that he, among other things, used excessivecorporal punishment upon the children, physically and verbally abused them, engaged inexcessive alcohol consumption and used illegal drugs in their presence. Family Court'sdispositional order placed the children in the custody of petitioner, directed respondent toparticipate in substance abuse, mental health and anger management counseling, and granted himvisitation with the children twice a month. Less than a month later, petitioner commenced theinstant proceeding seeking to modify the dispositional order by suspending visitation betweenrespondent and Marjorie, alleging that the child's visits with respondent had precipitatedself-[*2]mutilating behavior. Following a fact-finding hearing andan in camera hearing with both children, Family Court suspended respondent's visitation with thechildren. This appeal ensued.
Respondent argues that Family Court erred in denying him any visitation with the children.We begin by noting that "[w]hether visitation is appropriate is a matter left to Family Court'ssound discretion and its findings, to which deference is to be accorded, will not be disturbed onappeal unless they lack a sound basis in the record" (Matter of Shawn Y., 263 AD2d 687,688 [1999] [citation omitted]; see Matter of Shaun X., 300 AD2d 772, 773 [2002]).While "denial of visitation to a biological parent must be based on compelling reasons andsubstantial evidence that such visitation would be detrimental or harmful to the child's welfare[,]. . . the rights of a parent are subordinate to the policy of protecting a child from aparent who is incapable or unwilling to perform his or her parental responsibilities" (Matterof Sullivan County Dept. of Social Servs. v Richard C., 260 AD2d 680, 682 [1999], lvdismissed 93 NY2d 958 [1999] [citations omitted]; accord Matter of Victoria X., 34 AD3d 1117, 1118 [2006], lvdenied 8 NY3d 806 [2007]; see Matter of Shaun X., 300 AD2d at 773). Accordingly,the paramount issue in determining whether visitation should be permitted by a parent who hascommitted neglect is the best interests of the children (see Matter of Tanya T., 252 AD2d677, 679 [1998], lv denied 92 NY2d 812 [1998]), "and an inquiry into the child[ren's]best interest[s] involves consideration of the parent's ability to supervise the child[ren] and anypotential threat of future abuse or neglect" (Matter of Kathleen OO., 232 AD2d 784, 786[1996]; accord Matter of Victoria X., 34 AD3d at 1118).
We find ample support in the record for Family Court's denial of visitation to respondent. Atthe fact-finding hearing, petitioner's caseworker testified that she observed a deep cut onMarjorie's wrist following a visit with respondent and that Marjorie confided that it wasself-inflicted, that her visit with respondent had provoked it and that she no longer wished tocontinue visitation with respondent. Concerned about this revelation, the caseworker spoke toMarjorie's counselor at Crime Victim Assistance Center who, after a session with Marjorie,wrote a letter relating that Marjorie expressed that she engaged in self-mutilating behavior inorder to calm herself down when around respondent, and concluded that future visits withrespondent presented a continuing risk that she would harm herself. Further, the caseworkertestified that Hobb had been threatening to "blow up the place" and kill members of petitioner'sstaff and its residents and that, upon questioning him about this behavior, Hobb stated thatrespondent had instructed him to kill petitioner's staff and residents as well as how to do so.According to the caseworker, Hobb expressed his fear of respondent and the things he asked himto do, and no longer wished to visit with him. Although respondent contends that thecaseworker's testimony and the letter written by Marjorie's counselor constitute inadmissiblehearsay, he failed to preserve this issue by timely objection.
The children's in camera testimony, which Family Court found to be "extremely credible,compelling as well as extremely troubling," fully corroborated the caseworker's testimony andsubstantiated the damaging effects of ongoing visitation with respondent, as did a letter thatMarjorie herself wrote to the court in which she detailed respondent's threatening conduct, herfear of being physically harmed by him and her desire not to have contact with him in the future.While respondent argues that Marjorie's testimony and allegations against him are unworthy ofbelief, Family Court had the opportunity to observe her demeanor first hand as she testifiedduring the in camera hearing, and we accord great deference to its finding that she was credible(see Matter of Ida EE., 31 AD3d923, 925 [2006]; Matter of Nathaniel TT., 265 AD2d 611, 614 [1999], lvdenied 94 NY2d 757 [1999]). The record also contains evidence that both [*3]children suffer from mental health problems, that respondent lacksinsight into the severity of Hobb's emotional and mental difficulties and that respondentdisavowed engaging in conduct that he had expressly admitted to in the underlying neglectproceeding. Thus, Family Court's decision to suspend respondent's visitation with the childrenwas fully supported by the record and did not constitute an abuse of discretion (see Matter ofShaun X., 300 AD2d at 773; Matter of Ashley D., 268 AD2d 803, 806 [2000], lvdenied 94 NY2d 763 [2000]; Matter of Tanya T., 252 AD2d at 679-680).
Respondent's remaining contentions are unpreserved.
Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.