| Matter of Jacob P. (Sasha R.) |
| 2013 NY Slip Op 04007 [107 AD3d 719] |
| June 5, 2013 |
| Appellate Division, Second Department |
| In the Matter of Jacob P. Westchester County Departmentof Social Services, Respondent; Sasha R., Appellant. (Appeal No. 1.) In the Matter ofElaine W., Respondent, v Keith W., Sr., Respondent, Sasha R., Appellant, andWestchester County Department of Social Services, Respondent. (Appeal No.2.) |
—[*1] Robert F. Meehan, County Attorney, White Plains, N.Y. (Linda M. Trentacoste ofcounsel), for respondent in Appeal No. 1 and respondent-respondent in Appeal No. 2. Anne R. Mueller, West Harrison, N.Y., attorney for the children.
In related child custody and child protective proceedings pursuant to Family CourtAct articles 6 and 10, the mother appeals, (1) as limited by her brief and a stipulationdated February 27, 2013, from so much of an order of fact-finding and disposition of theFamily Court, Westchester County (Schauer, J.), dated July 27, 2011, as, after a hearing,found that the mother had derivatively neglected the child Jacob P., and, (2) as limited byher brief, from so much of an order of the same court dated September 15, 2011, as failedto provide her with visitation with the child Keith W.
Ordered that the order of fact-finding and disposition dated July 27, 2011, is affirmedinsofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated September 15, 2011, is reversed insofar as appealedfrom, on the facts and in the exercise of discretion, without costs or disbursements, andthe matter is remitted to the Family Court, Westchester County, for further proceedings inaccordance herewith.
In a child protective proceeding, the petitioner has the burden of proving neglect by apreponderance of the evidence (see Family Ct Act §§ 1012 [f] [i][B]; 1046 [b] [i]; Matter ofAmerriah S. [Kadiatou Y.], 100 AD3d 1006 [2012]; Matter of Yanni D. [Hope J.],95 AD3d 1313 [2012]). Here, contrary to the mother's contentions, the FamilyCourt's finding that she derivatively neglected the child Jacob P. is supported by apreponderance of the evidence. A caseworker and police officer testified [*2]at the fact-finding hearing that the mother admitted to themthat she struck Jacob P.'s sibling, the child Keith W., several times with a belt, and as totheir personal observations of Keith W.'s injuries (see Matter of Yanni D.[Hope J.], 95 AD3d at 1313; Matter of Adreanna M. [Kety M.], 95 AD3d 1213 [2012];Matter of Delehia J. [TamekaJ.], 93 AD3d 668 [2012]). Accordingly, the Family Court's determination thatthe mother derivatively neglected Jacob P., based upon her use of excessive corporalpunishment upon Keith W., was supported by the record (see Family Ct Act§ 1046 [a] [i]; Matter ofJoseph O'D. [Denise O'D.], 102 AD3d 874, 875 [2013], lv denied 20NY3d 863 [2013]; Matter of Yanni D. [Hope J.], 95 AD3d at 1313; Matter of Devontay M., 56AD3d 561, 562 [2008]).
Absent extraordinary circumstances, such as where visitation would be detrimental tothe child's well-being, a noncustodial parent has a right to reasonable visitation privileges(see Matter of Zwillman vKull, 90 AD3d 774, 775 [2011]; Pollack v Pollack, 56 AD3d 637 [2008]; Cervera v Bressler, 50 AD3d837 [2008]; Twersky v Twersky, 103 AD2d 775 [1984]). Here, the FamilyCourt improvidently exercised its discretion in failing to provide the mother with anyvisitation, either unsupervised or supervised, with Keith W., since there were noextraordinary circumstances justifying the denial of the mother's right to reasonablevisitation (cf. Matter of Dohertyv Doherty, 49 AD3d 641, 642 [2008]; see generally Pollack v Pollack,56 AD3d at 637; Cervera v Bressler, 50 AD3d at 837). Accordingly, we remit thematter to the Family Court, Westchester County, for further proceedings to determinewhether the mother's visitation with Keith W. should be supervised or unsupervised, andto establish an appropriate visitation schedule. Skelos, J.P., Dillon, Dickerson andChambers, JJ., concur.