| Matter of Secrist v Brown |
| 2011 NY Slip Op 02557 [83 AD3d 1399] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Robert D. Secrist, Appellant, v Krista Brown,Respondent. |
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Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.),entered February 24, 2010 in a proceeding pursuant to Family Court Act article 6. The orderdismissed the petition seeking visitation.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father, who is incarcerated, appeals from an order dismissing hispetition seeking visitation with the parties' children without a hearing. Although generally " '[a]determination of the [children's] best interests should only be made after a full evidentiaryhearing,' " no such hearing is required where " 'there is sufficient information before the court toenable it to undertake an independent comprehensive review of the [children's] best interests' "(Matter of Mills v Sweeting, 278 AD2d 943, 944 [2000]). Here, the father wasincarcerated for killing respondent mother's boyfriend, and the Attorney for the Child informedFamily Court at the initial appearance that there was an order of protection in effect prohibitingthe father from having contact with his children for a period of 100 years. The father wasrepresented by counsel, who did not dispute the existence of the order of protection. Under thecircumstances of this case, we conclude that the court properly dismissed the father's visitationpetition without a hearing (see Matter ofAmir J.-L., 57 AD3d 669 [2008], lv dismissed 12 NY3d 905 [2009], reargdenied 13 NY3d 769 [2009]). We reject the father's contention that he was denied effectiveassistance of counsel (see generallyMatter of Amanda T., 4 AD3d 846 [2004]). In light of the order of protection, there wasnothing counsel could have done to obtain visitation for the father unless the order of protectionwas vacated or modified in criminal court. Present—Smith, J.P., Peradotto, Lindley,Sconiers and Martoche, JJ.