| Matter of Brown v Terwilliger |
| 2013 NY Slip Op 05115 [108 AD3d 1047] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of Clarence R. Brown, Appellant, v ShannonTerwilliger et al., Respondents. In the Matter of Clarence R. Brown,Appellant, v Kelly Finnerty, Respondent. |
—[*1] Susan James, Attorney for the Children, Waterloo.
Appeal from an order of the Family Court, Cayuga County (Mark H. Fandrich, A.J.),entered April 27, 2012. The order, among other things, denied the petitions for visitation.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner, an inmate serving a 15-year determinate sentence,commenced these consolidated proceedings pursuant to article 6 of the Family Court Act,seeking visitation with three of his children, but he subsequently withdrew his request forvisitation with one of the children upon learning that she may suffer emotionally fromvisitation with him in prison. The mother and maternal grandmother of one of the tworemaining children (hereafter, daughter) are the respondents in one proceeding, and themother of the other child (hereafter, son) is the respondent in the other proceeding. At theconclusion of the joint fact-finding hearing, Family Court denied the petitions butallowed petitioner to communicate in writing with the two children. We affirm.
Although we recognize that the rebuttable presumption in favor of visitation applieswhen the parent seeking visitation is incarcerated (see Matter of Granger v Misercola, 21 NY3d 86, 91[2013]), we conclude that respondents rebutted the presumption by establishing by apreponderance of the evidence that visitation with petitioner would be harmful to thechildren (see id.). A parent's failure to seek visitation with a child for a prolongedperiod of time is a relevant factor when determining whether visitation is warranted(see Matter of Russell v Simmons, 88 AD3d [*2]1080, 1081 [2011]; Matter of Butler v Ewers, 78 AD3d 1667, 1667 [2010]),and, here, petitioner has never met the daughter or the son. In fact, before commencingthese proceedings, petitioner did not seek visitation with either child. Thus, petitioner is"essentially a stranger to the child[ren]" (Matter of Cole v Comfort, 63 AD3d 1234, 1236 [2009],lv denied 13 NY3d 706 [2009]).
In addition, the daughter's counselor testified in detail as to how visitation would bedetrimental to her welfare (seeMatter of Lando v Lando, 79 AD3d 1796, 1796 [2010], lv denied 16NY3d 709 [2011]; Matter ofFrank P. v Judith S., 34 AD3d 1324, 1324-1325 [2006]). Although there was nosimilar expert testimony regarding the effect of visitation on the son, such testimonyregarding the effect of visitation is not by itself determinative (see Lando, 79AD3d at 1796-1797; Matter ofMcCullough v Brown, 21 AD3d 1349, 1349-1350 [2005]), and there wassufficient other evidence to support the court's determination, such as testimony from theson's mother that he is afraid of seeing petitioner and has been placed in therapy since helearned of these proceedings.
In sum, "the propriety of visitation is generally left to the sound discretion of FamilyCourt[,] whose findings are accorded deference by this Court and will remainundisturbed unless lacking a sound basis in the record" (Matter of Conklin vHernandez, 41 AD3d 908, 910 [2007] [internal quotation marks omitted]), and,here, there is a sound and substantial basis in the record to support the court'sdetermination that visitation with petitioner is not in the children's best interests (see Matter of Robert AA. vColleen BB., 101 AD3d 1396, 1397-1399 [2012], lv denied 20 NY3d860 [2013]). Present—Scudder, P.J., Smith, Centra and Lindley, JJ.