Opinion
2013-06-5
In the Matter of JACOB P. (Anonymous). Westchester County Department of Social Services, respondent; Sasha R. (Anonymous), appellant. (Appeal No. 1). In the Matter of Elaine W. (Anonymous), petitioner-respondent, v. Keith W. (Anonymous), Sr., respondent, Sasha R. (Anonymous), appellant, Westchester County Department of Social Services, respondent-respondent. (Appeal No. 2).
George E. Reed, Jr., White Plains, N.Y., for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Linda M. Trentacoste of counsel), for respondent in Appeal No. 1 and respondent-respondent in Appeal No. 2.
George E. Reed, Jr., White Plains, N.Y., for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (Linda M. Trentacoste of counsel), for respondent in Appeal No. 1 and respondent-respondent in Appeal No. 2.
Anne R. Mueller, West Harrison, N.Y., attorney for the children.
PETER B. SKELOS, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ.
In related child custody and child protective proceedings pursuant to Family Court Act articles 6 and 10, the mother appeals, (1) as limited by her brief and a stipulation dated February 27, 2013, from so much of an order of fact-finding and disposition of the Family 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 by her brief, from so much of an order of the same court dated September 15, 2011, as failed to provide her with visitation with the child Keith W.
ORDERED that the order of fact-finding and disposition dated July 27, 2011, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order dated September 15, 2011, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for further proceedings in accordance herewith.
In a child protective proceeding, the petitioner has the burden of proving neglect by a preponderance of the evidence ( seeFamily Ct. Act §§ 1012[f][i][B]; 1046[b][i]; Matter of Amerriah S. [ Kadiatou Y.], 100 A.D.3d 1006, 955 N.Y.S.2d 147;Matter of Yanni D. [ Hope J.], 95 A.D.3d 1313, 944 N.Y.S.2d 923). Here, contrary to the mother's contentions, the Family Court's finding that she derivatively neglected the child Jacob P. is supported by a preponderance of the evidence. A caseworker and police officer testified at the fact-finding hearing that the mother admitted to them that she struck Jacob P.'s sibling, the child Keith W., several times with a belt, and as to their personal observations of Keith W.'s injuries ( see Matter of Yanni D. [ Hope J.], 95 A.D.3d at 1313, 944 N.Y.S.2d 923;Matter of Adreanna M. [ Kety M.], 95 A.D.3d 1213, 945 N.Y.S.2d 154; Matter of Delehia J. [ Tameka J.], 93 A.D.3d 668, 939 N.Y.S.2d 570). Accordingly, the Family Court's determination that the mother derivatively neglected Jacob P., based upon her use of excessive corporal punishment upon Keith W., was supported by the record ( seeFamily Ct. Act § 1046[a][i]; Matter of Joseph O'D., 102 A.D.3d 874, 875, 958 N.Y.S.2d 731,lv. denied20 N.Y.3d 863, 2013 WL 1235516;Matter of Yanni D. [ Hope J.], 95 A.D.3d at 1313, 944 N.Y.S.2d 923;Matter of Devontay M., 56 A.D.3d 561, 562, 867 N.Y.S.2d 508).
Absent extraordinary circumstances, such as where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges ( see Matter of Zwillman v. Kull, 90 A.D.3d 774, 775, 934 N.Y.S.2d 333;Pollack v. Pollack, 56 A.D.3d 637, 868 N.Y.S.2d 243;Cervera v. Bressler, 50 A.D.3d 837, 855 N.Y.S.2d 658;Twersky v. Twersky, 103 A.D.2d 775, 477 N.Y.S.2d 409). Here, the Family Court improvidently exercised its discretion in failing to provide the mother with any visitation, either unsupervised or supervised, with Keith W., since there were no extraordinary circumstances justifying the denial of the mother's right to reasonable visitation ( cf. Matter of Doherty v. Doherty, 49 A.D.3d 641, 642, 852 N.Y.S.2d 787;see generally Pollack v. Pollack, 56 A.D.3d at 637, 868 N.Y.S.2d 243; Cervera v. Bressler, 50 A.D.3d at 837, 855 N.Y.S.2d 658). Accordingly, we remit the matter to the Family Court, Westchester County, for further proceedings to determine whether the mother's visitation with Keith W. should be supervised or unsupervised, and to establish an appropriate visitation schedule.