| Matter of Kristian J.P. v Jeannette I.C. |
| 2011 NY Slip Op 06733 [87 AD3d 1337] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Kristian J.P. et al., Appellants, v JeannetteI.C. et al., Respondents. |
—[*1] Schavon R. Morgan, Machias, for petitioner-appellant Dorothy E.P. Dicerbo & Palumbo, Olean (Daniel R. Palumbo of counsel), for respondents-respondents. Carolyn Kellogg Jonas, Attorney for the Children, Wellsville, for Anthony R.C. and AlexisJ.C.
Appeals from an order of the Family Court, Cattaraugus County (Larry M. Himelein, J.),entered July 12, 2010 in a proceeding pursuant to Domestic Relations Law § 112-b. Theorder, inter alia, denied the petitions to enforce a postadoption contact agreement.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydirecting that the stay away provision is in effect until the 18th birthday of the youngest subjectchild, and as modified the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Domestic Relations Law § 112-b,petitioners appeal from an order denying their petitions to enforce a visitation provision in thepostadoption contact agreement with respect to two of their biological children who had beenadopted by respondents (see generally Social Services Law § 383-c [2] [b]).Contrary to petitioners' contention, Family Court applied the appropriate standard when makingits determination on the petitions. Pursuant to Domestic Relations Law § 112-b (4), "[t]hecourt shall not enforce an order [incorporating a postadoption contact agreement] unless it findsthat the enforcement is in the child[ren's] best interests." Here, petitioners were afforded a fulland fair evidentiary hearing, and the court's determination that continued visitation was not in thechildren's best interests has a sound and substantial basis in the record (see generally Matter of Heidi E. [TreseaF.—Phyllis G.], 68 AD3d 1174 [2009]). Moreover, petitioners were eachexpressly warned prior to signing the judicial surrenders with respect to those children that anypostadoption contact agreement was subject to modification based upon the best interests of thechildren.
We reject the further contention of petitioner Kristian J.P. (hereafter, biological father) thatthe court erred in granting respondents' cross petition seeking an order requiring the biologicalfather to stay away from and refrain from any contact with respondents and the subject [*2]children. Although the petitions were filed pursuant to DomesticRelations Law § 112-b, the nature of the instant proceeding is the determination ofvisitation rights. We therefore conclude that the court has the authority to issue an order ofprotection "set[ting] forth reasonable conditions of behavior to be observed for a specific time byany petitioner" pursuant to Family Court Act § 656. Inasmuch as the court's order did not"plainly state the date that [the stay-away provision] expires" (Family Ct Act § 154-c [1]),we modify the order by directing that the stay away provision is in effect until the 18th birthdayof the youngest subject child (seegenerally Matter of Thomas v Osborne, 51 AD3d 1064, 1068-1069 [2008]; Matter ofMorse v Brown, 298 AD2d 656, 657 [2002]). Finally, we reject the biological father'scontention that he was denied effective assistance of counsel, inasmuch as he failed todemonstrate that he was "deprived of meaningful representation and that counsel's deficienciescaused [him] to suffer actual prejudice" (Matter of Nicholas GG., 285 AD2d 678, 679[2001]). Present—Scudder, P.J., Peradotto, Carni, Gorski and Martoche, JJ.