In re Jacob P.
Matter
of Jacob P. (Sasha R.)
2013
NY Slip Op 04007
Decided
on June 5, 2013
Appellate
Division, Second Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on June 5, 2013
SUPREME
COURT OF THE STATE OF NEW YORK
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
PETER
B. SKELOS, J.P.
MARK
C. DILLON
THOMAS
A. DICKERSON
CHERYL
E. CHAMBERS, JJ.
2011-09388
2011-09815
(Docket
Nos. N-6461-10, N-6462-10, V-6769-10, V-6771-10, V-6775-10)
[*1]In
the Matter of Jacob P. (Anonymous). Westchester County Department of Social
Services, respondent;
and
Sasha
R. (Anonymous), appellant. (Appeal No. 1)
In
the Matter of Elaine W. (Anonymous), petitioner- respondent, Keith W.
(Anonymous), Sr., respondent,
and
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.
Anne
R. Mueller, West Harrison, N.Y., attorney for the children.
DECISION
& ORDER
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 (see Family Ct Act §§ 1012[f][i][B];
1046[b][i]; Matter of Amerriah S. [Kadiatou Y.], 100 AD3d 1006; Matter of Yanni
D. [Hope J.], 95 AD3d 1313). 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 [*2]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 AD3d at 1313; Matter of Adreanna M. [Kety M.], 95 AD3d
1213; Matter of Delehia J. [Tameka J.], 93 AD3d 668). 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 (see Family Ct Act § 1046[a][i]; Matter of Joseph O'D., 102 AD3d
874, 875, lv denied 20 NY3d 863; Matter of Yanni D. [Hope J.], 95 AD3d at 1313;
Matter of Devontay M., 56 AD3d 561, 562).
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 AD3d 774, 775; Pollack
v Pollack, 56 AD3d 637; Cervera v Bressler, 50 AD3d 837; Twersky v Twersky, 103
AD2d 775). 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 AD3d 641, 642; see generally Pollack v Pollack,
56 AD3d at 637; Cervera v Bressler, 50 AD3d at 837). 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.
SKELOS,
J.P., DILLON, DICKERSON and CHAMBERS, JJ., concur.
ENTER:
Aprilanne
Agostino
Clerk
of the Court