| Matter of Alisia M. (Sean M.) |
| 2013 NY Slip Op 06755 [110 AD3d 1186] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Alisia M., a Child Alleged to be Neglected.Columbia County Department of Social Services, Respondent; Sean M.,Appellant. |
—[*1] Philip S. Meyer, Columbia County Department of Social Services, Hudson, forrespondent. Ira Halfond, Craryville, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Columbia County (Nichols,J.), entered June 28, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 10, to adjudicate respondent's child to be neglected.
Respondent is the father of Alisia M. (born in 1998). He had regular visitation withthe child on Tuesday evenings and every other weekend until June 2011, when the childreported to one of petitioner's caseworkers that, in April 2011, respondent had hit her inthe face with the back of his hand with enough force to cause her lip to bleed and swell.The child also reported that respondent had hit her approximately four times per month,and that she had observed respondent smoking marihuana during periods of visitation.Petitioner thereafter commenced this proceeding alleging that respondent had neglectedthe child based upon this conduct.
Family Court determined, following a fact-finding hearing, that respondent hadneglected the child based upon the incident of April 2011 and his abuse of marihuanawhile the [*2]child was in his care. Following thedispositional hearing, the court issued an order placing respondent under the supervisionof petitioner for one year and requiring him to, among other things, participate insubstance abuse counseling, anger management services and parenting classes.Additionally, the court issued an order of protection prohibiting contact betweenrespondent and the child for one year except "visitation as therapeutically recommendedor attendance at therapy with [the child] as recommended by a therapist after review by. . . Family Court." Respondent appeals.
In a neglect proceeding, the petitioner bears the burden of establishing, by apreponderance of the credible evidence, that the child's physical, mental or emotionalwell-being either has been impaired or is in imminent danger of becoming impaired, andthat the harm to the child is a result of the failure of the respondent to exercise aminimum degree of care in providing the child with proper guardianship (see Matter of Benjamin VV. [LarryVV.], 92 AD3d 1107, 1108 [2012]; Matter of Bianca QQ. [Kiyonna SS.], 75 AD3d 679, 680[2010]). Here, according deference to Family Court's credibility determinations, theevidence established that respondent hit the child's face, causing her lip to bleed andswell. It was further established that respondent regularly abused marihuana during therelevant time frame, was under the influence of marihuana during periods of visitationwith the child, and used marihuana in the child's presence. We find that there was asound and substantial basis for the finding of neglect (see Matter of Chassidy CC.[Andrew CC.], 84 AD3d 1448, 1449-1450 [2011]; Matter of Bianca QQ.[Kiyonna SS.], 75 AD3d at 680-681; Matter of Paolo W., 56 AD3d 966, 967-968 [2008], lvdismissed 12 NY3d 747 [2009]).
However, we find merit to respondent's argument that Family Court's orderprohibiting visitation except "as therapeutically recommended or attendance at therapywith [the child] as recommended by a therapist after review by . . . FamilyCourt" constitutes an improper delegation of the court's authority to make determinationson the issue of the best interests of the child (see Matter of Holland v Holland, 92 AD3d 1096, 1096[2012]; Matter of Sullivan County Dept. of Social Servs. v Richard C., 260AD2d 680, 683 [1999], lv dismissed 93 NY2d 958 [1999]). Although the recordcontains some indication that Family Court recognized and attempted to avoid thisdelegation, the order failed to require further review unless triggered by the therapist, anddid not direct the child to attend therapy with respondent unless recommended by thetherapist. As the order thus makes the recommendation of a therapist a prerequisite forany visitation, we find that there was an improper delegation of the court's authority, andthe matter is therefore remitted to Family Court for further proceedings regarding theissue of visitation (see Matter of Holland v Holland, 92 AD3d at 1096-1097; Matter of Steven M. [StephvonO.], 88 AD3d 1099, 1101-1102 [2011]).
Rose, J.P., Lahtinen and Spain, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as delegated to the child's therapist thedecision as to when supervised visitation would be permitted and by vacating the orderof protection dated April 13, 2012; matter remitted to the Family Court of ColumbiaCounty for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.