| Matter of Wise v Burks |
| 2009 NY Slip Op 02505 [61 AD3d 1058] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Che Wise, Appellant, v Opal Burks,Respondent. |
—[*1] Arlene Levinson, Public Defender, Hudson (Jessica Howser of counsel), for respondent. Kenneth Esrick, Law Guardian, Chatham.
Rose, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.), enteredJune 9, 2008, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for visitation with the parties' child.
The parties are the unmarried parents of a child who was born in 2004 while petitioner(hereinafter the father) was incarcerated. After his release on parole in 2006 and subsequentreturn to prison for a parole violation, the father petitioned for visitation with the child, andrespondent (hereinafter the mother) cross-petitioned for sole legal and physical custody.Following a hearing, Family Court dismissed the father's petition upon the Law Guardian'smotion for summary judgment and granted the mother sole custody. The father now appeals thedenial of visitation only.
In reviewing a denial of visitation, we defer to Family Court's credibility determinations and,where there exists a sound and substantial basis in the record, we generally do not disturb thecourt's findings (see Matter of Jones vMcMore, 37 AD3d 1031, 1031-1032 [2007]; Matter of Edward S. v Moon, 7 AD3d 834, 836 [2004]). Here,Family Court credited the mother's testimony that she had received threatening letters from thefather while he was in prison and the father had neither inquired as to the child's health orschooling nor attempted to contact or visit the child. In his testimony, the father admitted that hehad never called the mother and asked to [*2]see the child, and hehad never sent the child cards or presents or money for his care. Given the father's recurringcriminal activity and incarceration, the absence of any prior contact and his lack of efforts tohave a relationship with the child over a period of four years, Family Court did not err inconcluding that visitation was not in the child's best interests (see Matter of Conklin v Hernandez, 41AD3d 908, 910 [2007]).
As for to the father's contention that Family Court erred in admitting an uncertified drug testreport showing that he tested positive for cocaine three months earlier, we find the report'sadmission to be harmless error. While we agree that the report did not qualify for admissionunder CPLR 4518 (c), Family Court did not cite the test results or the father's use of cocaine as abasis for its decision. Accordingly, we conclude that the error played no significant role in thecourt's determination, which is fully supported by the properly admitted evidence (see Matter of Bartlett v Jackson, 47AD3d 1076, 1078 [2008], lv denied 10 NY3d 707 [2008]; Matter of Jelenic vJelenic, 262 AD2d 676, 678 [1999]).
Peters, J.P., Lahtinen, Kane and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.