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In re Brown

Supreme Court of New York, Fourth Department

July 5, 2013

IN THE MATTER OF CLARENCE R. BROWN, PETITIONER-APPELLANT, SHANNON TERWILLIGER AND MARY ANN TERWILLIGER, RESPONDENTS-RESPONDENTS. IN THE MATTER OF CLARENCE R. BROWN, PETITIONER-APPELLANT,
v.
KELLY FINNERTY, RESPONDENT-RESPONDENT.

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.

WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF COUNSEL), FOR PETITIONER-APPELLANT. SUSAN JAMES, ATTORNEY FOR THE CHILDREN, WATERLOO.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

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 for visitation with one of the children upon learning that she may suffer emotionally from visitation with him in prison. The mother and maternal grandmother of one of the two remaining children (hereafter, daughter) are the respondents in one proceeding, and the mother of the other child (hereafter, son) is the respondent in the other proceeding. At the conclusion of the joint fact-finding hearing, Family Court denied the petitions but allowed petitioner to communicate in writing with the two children. We affirm.

Although we recognize that the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated (see Matter of Granger v Misercola, 21 N.Y.3d 86, 91), we conclude that respondents rebutted the presumption by establishing by a preponderance of the evidence that visitation with petitioner would be harmful to the children (see id.). A parent's failure to seek visitation with a child for a prolonged period of time is a relevant factor when determining whether visitation is warranted (see Matter of Russell v Simmons, 88 A.D.3d 1080, 1081; Matter of Butler v Ewers, 78 A.D.3d 1667, 1667), and, here, petitioner has never met the daughter or the son. In fact, before commencing these 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 A.D.3d 1234, 1236, lv denied 13 N.Y.3d 706).

In addition, the daughter's counselor testified in detail as to how visitation would be detrimental to her welfare (see Matter of Lando v Lando, 79 A.D.3d 1796, 1796, lv denied 16 N.Y.3d 709; Matter of Frank P. v Judith S., 34 A.D.3d 1324, 1324-1325). Although there was no similar expert testimony regarding the effect of visitation on the son, such testimony regarding the effect of visitation is not by itself determinative (see Lando, 79 A.D.3d at 1796-1797; Matter of McCullough v Brown, 21 A.D.3d 1349, 1349-1350), and there was sufficient other evidence to support the court's determination, such as testimony from the son's mother that he is afraid of seeing petitioner and has been placed in therapy since he learned of these proceedings.

In sum, "the propriety of visitation is generally left to the sound discretion of Family Court[, ] whose findings are accorded deference by this Court and will remain undisturbed unless lacking a sound basis in the record" (Matter of Conklin v Hernandez, 41 A.D.3d 908, 910 [internal quotation marks omitted]), and, here, there is a sound and substantial basis in the record to support the court's determination that visitation with petitioner is not in the children's best interests (see Matter of Robert AA. v Colleen BB., 101 A.D.3d 1396, 1397-1399, lv denied 20 N.Y.3d 860).


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