| Matter of Holland v Holland |
| 2012 NY Slip Op 01158 [92 AD3d 1096] |
| February 16, 2012 |
| Appellate Division, Third Department |
| In the Matter of Shirley A. Holland, Respondent, v Jude J. Holland,Appellant, et al., Respondent (And Another Related Proceeding.). |
—[*1] Maureen C. McGaw, Canton, attorney for the child.
Lahtinen, J.P. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered September 3, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the subject child.
Respondent Jude Holland (hereinafter the father) and respondent Crystal McLear (hereinafterthe mother) are the parents of a child (born in 2004). A stipulated order in December 2007granted the parents joint legal custody, placed physical custody of the child with the father andprovided visitation by both the mother and maternal grandmother (who previously had custody).The father was arrested in 2010 for endangering the welfare of a child as a result of allegedlycausing extensive bruising to the child's buttocks when inflicting excessive corporal punishmentand, thereafter, the child began living with petitioner, his aunt. In July 2010, the aunt commencedthe current custody proceeding. The parties eventually stipulated to various issues, includingplacing custody of the child with the aunt. An order, based in part on the agreement of theparties, was entered September 3, 2010. The order also incorporated an order of protection issuedby Family Court providing that the father was not permitted unsupervised contact with the childuntil the child reached the age of 18. The father appeals.[*2]
There is merit to the father's contention that Family Courtimproperly delegated its authority to a mental health counselor. "[A] court cannot delegate to amental health professional its authority to determine issues involving the best interest of thechild" (Matter of Sullivan County Dept. of Social Servs. v Richard C., 260 AD2d 680,683 [1999], lv dismissed 93 NY2d 958 [1999]; see Gadomski v Gadomski, 256AD2d 675, 677 [1998]). The order permitted supervised visitation "at such time as the child'scounselor recommends contact with [the father]." This provision of the order is an improperdelegation (see Matter of Steven M.[Stephvon O.], 88 AD3d 1099, 1101 [2011]). As for the assertion by the attorney for thechild that the issue is "moot" because the order is based upon a stipulation, the record does notestablish that the father agreed to the visitation condition as set forth in the order. The provisionof the order delegating to a counselor the decision as to when supervised visitation can beginmust be removed from the order, and the matter remitted to Family Court for a properdetermination regarding the father's visitation (see Matter of Gaitor v Morrissey, 47 AD3d 975, 977 [2008],appeal dismissed 10 NY3d 890 [2008]; Matter of Covington v Coleman, 34 AD3d 1107, 1108 [2006];Matter of Battista v Battista, 294 AD2d 941 [2002]).
The order of protection precluding unsupervised contact by the father until the child reachesthe age of 18 must be vacated. The underlying order and the order of protection indicate that theterms are by agreement or consent. However, the record does not reveal any agreement orconsent to the terms of the order of protection. In fact, although the father acknowledged thatinitially visitation would be supervised, his counsel stated that the father hoped to move towardunsupervised visitation. Moreover, the record does not reveal that a permanent order ofprotection was being considered, there was no testimony regarding such issue and Family Courtdid not make any factual findings pertinent thereto (cf. Matter of Daniel v Pylinski, 61 AD3d 1291, 1292 [2009]; Matter of Thomas v Osborne, 51 AD3d1064, 1068-1069 [2008]).
The remaining arguments are either academic or unavailing.
Spain, Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as delegated to the child's counselor the decision asto when supervised visitation would be permitted, and by vacating the order of protection datedSeptember 3, 2010 that was incorporated by reference into the order; matter remitted to theFamily Court of St. Lawrence County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.