In re Gerald Y.-C., A Child under Eighteen Years of Age, etc., Roland Y., Respondent-Appellant, Administration for Children's Services, Petitioner-Respondent.
Bronx Defenders, Bronx (Saul Zipkin of counsel), for
Zachary W. Carter, Corporation Counsel, New York (Fay Ng of
counsel), for respondent.
A. Steckler, The Legal Aid Society, New York (Patricia
Colella of counsel), attorney for the child.
Sweeny, J.P., Andrias, Moskowitz, Kahn, Gesmer, JJ.
Family Court, Bronx County (Linda P. Tally, J.), entered on
or about September 13, 2016, which denied respondent
father's motion for expanded visitation, reversed, on the
facts, without costs, and the motion granted, and respondent
is awarded one-half hour of unsupervised "sandwich"
visitation with the child during each of his existing twice
weekly supervised visits, with pick-up and drop-off at the
foster care agency.
2012, Family Court found that respondent and Arielle C.
neglected their 14-month-old son, Gerald, due to their
failure to provide safe living conditions. Pursuant to an
order of disposition, the child was placed in foster care,
where he has resided with the paternal grandmother of his
half-sibling since approximately 2013.
April 2015, the permanency goal for the child was changed
from family reunification to adoption. The supervising
agency, Abbott House, filed a petition on behalf of the
Administration for Children's Services to terminate
respondent's parental rights on the grounds that he had
permanently neglected the child by failing to maintain
contact with or plan for him, despite the agency's
diligent efforts to strengthen respondent's relationship
with the child.
the pendency of the permanency proceeding, respondent had
supervised visitation with the child, at the agency, from 4
p.m. to 6 p.m. on Wednesdays and Thursdays. In 2016, in two
oral applications, followed by a written motion, respondent
requested that he be granted one-half hour of unsupervised
visitation sandwiched into his supervised visits. In support,
respondent presented letters indicating that he was working
full-time and receiving therapy and drug treatment, and that
he had tested negative for illicit substances since the end
of January 2016. Respondent also argued that he was visiting
the child regularly, and that having unsupervised visitation
was in the child's best interest, because they had an
extremely positive and loving relationship. Furthermore, his
parental rights might not be terminated, in which case moving
from supervised to unsupervised visitation was essential for
his reunification with the child.
agency and the attorney for the child opposed
respondent's applications. They argued, inter alia, that
too short a period of time had transpired to evaluate whether
circumstances had truly changed, and that expanding
visitation beyond the twice weekly agency-supervised visits
could cause the child emotional harm, because
respondent's parental rights might be terminated.
court first determined that the agency had the discretion to
disallow unsupervised visitation. However, it ultimately
denied respondent's motion, finding that expanding
visitation would not be in the child's best interest,
because he had been in foster care since March 2012, and the
court was in the process of conducting a hearing to determine
whether respondent's parental rights should be
to Family Court Act § 1061, the Family Court may modify
any order issued during the course of a proceeding under
article 10 for "good cause shown" (see Matter
of Kenneth QQ. [Jodi QQ.], 77 A.D.3d 1223, 1224 [3d Dept
2010]). The determination as to whether good cause has been
shown must be "consistent with the best interests of the
children after consideration of all relevant facts and
circumstances, and must be supported by a sound and
substantial basis in the record" (Matter of Daniel
C. [Joyce C.], 133 A.D.3d 596, 597 [2d Dept 2015]
[internal quotation marks omitted]).
demonstrated good cause to expand visitation to include the
"sandwich visits, " in which he and the child would
have one-half hour of unsupervised time in the middle of his
supervised visits, after being observed by agency staff. The
record establishes that respondent does not presently pose
any risk of physical harm to the child, through drug use or
otherwise, and that he has made significant progress since
the inception of this proceeding.
respondent has a history of drug abuse, which led to a period
of incarceration, he has demonstrated his commitment to
counseling and treatment, and has not tested positive for
drugs since January 2016. Respondent has also demonstrated a
desire to turn his life around, obtaining regular employment
and endeavoring to build a relationship with the child, who
is now almost six years old, by regularly attending the twice
weekly supervised visits. It is undisputed that these visits
have been positive for the child and that there are no
concerns about the child's safety in spending time with
there any evidence that the limited sandwich visits would be
emotionally damaging for the child just because there is a
possibility that respondent's parental rights will be
terminated at the end of the permanency proceeding. "No
case has been cited for the proposition that a finding of
permanent neglect and a goal of adoption are legal
impediments to changing the nature of a parent's
visitation or increasing its frequency, and none has been
found... Until the conclusion of disposition and the
rendering of a decision, the outcome of ...