Jorge JJ. v. Erica II.

• Decision Date: 25 February 2021
• Docket Number: 526983,526982
• Citation: 142 N.Y.S.3d 240,191 A.D.3d 1188
• Parties: In the Matter of JORGE JJ., Appellant, v. ERICA II., Respondent. (Proceeding No. 1.) In the Matter of Erica II., Respondent, v. Jorge JJ., Appellant. (Proceeding No. 2.) (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1188

142 N.Y.S.3d 240

In the Matter of JORGE JJ., Appellant,

v.ERICA II., Respondent.

(Proceeding No. 1.)

In the Matter of Erica II., Respondent,

v.Jorge JJ., Appellant.

(Proceeding No. 2.)

(And Another Related Proceeding.)

526982

526983

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 12, 2021

Decided and Entered: February 25, 2021

Dennis B. Laughlin, Cherry Valley, for appellant.

Geanine Towers, New York City, for respondent.

Allen E. Stone Jr., Vestal, attorney for the child.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeals (1) from an order of the Family Court of Broome County (Young, J.), entered June 8, 2018, which dismissed petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, to hold respondent in willful violation of a prior order of visitation, and (2) from an order of said court, entered June 8, 2018, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Jorge JJ. (hereinafter the father) and Erica II. (hereinafter the mother) are the parents of the subject child (born in 2010). In February 2013, Family Court entered a custody and visitation order granting the parties’ joint legal custody and the mother primary physical placement of the child, with a parenting schedule that provided the father with weekly visitation from Friday at 5:00 p.m. until Monday at 5:00 p.m. In May 2014, the father filed a violation petition alleging that the mother had willfully violated the prior order by refusing to present the child for visitation. Contemporaneously, the Broome County Department of Social Services (hereinafter DSS) was investigating certain allegations of neglect against the father that ultimately culminated in the filing of a neglect petition in September 2014. Based on the allegations in the neglect petition, Family Court placed the father under DSS supervision, restricted his parenting time with the child to supervised visitation and held all other then-pending non-neglect petitions in abeyance pending the outcome of the neglect proceeding.¹

Following a protracted fact-finding hearing, in February 2017, Family Court adjudicated the subject child to have been neglected and required the father to participate in a sexual abuse program, complete a parenting class and undergo a mental health assessment and follow through with any treatment recommendations.² Family Court also kept the father under DSS supervision for a period of one year and continued the supervised parenting schedule previously in effect. Following disposition of the neglect petition, the father's May 2014 violation petition was returned to Family Court's docket and the mother and the father were directed to file amended modification petitions with respect to their then-pending custody and visitation petitions.

On August 17, 2017, the mother and the father filed their respective petitions seeking modification of the prior order of custody and visitation, with the mother seeking sole custody of the child with supervised parenting time to the father, and the father seeking custody of the child or, alternatively, a 50/50 shared physical custody arrangement. Following a fact-finding hearing, Family Court granted the mother sole legal and physical custody of the child, with supervised parenting time to the father for a minimum of two hours per week. The father appeals.

Preliminarily, although the father purports to appeal from Family Court's June 8, 2018 order dismissing his petition seeking to hold the mother in willful violation of a prior order of custody and visitation, he did not raise any arguments in his brief with respect to this contention. Accordingly, we deem the father's appeal from said order to be abandoned (see Matter of Paul Y. v. Patricia Z., 190 A.D.3d 1038, ––––, 137 N.Y.S.3d 836, 840 n. 2 [2021] ; Matter of Sean Q. v. Sarah Q., 156 A.D.3d 1173, 1173 n., 67 N.Y.S.3d 686 [2017] ).

Turning to the modification petitions, a party seeking modification of a prior order of custody and visitation "bears the threshold burden to show a change in circumstances since entry thereof warranting an inquiry into the child's best interests" ( Matter of Matthew DD. v. Amanda EE., 187 A.D.3d 1382, 1382, 134 N.Y.S.3d 512 [2020] [internal quotation marks and citations omitted]; see Matter of Bonnie AA. v. Kiya DD., 186 A.D.3d 1784, 1786, 131 N.Y.S.3d 411 [2020], lv dismissed and denied, 36 N.Y.3d 933, 135 N.Y.S.3d 664, 160 N.E.3d 322 [2020] ). Although Family Court did not explicitly find that a change in circumstances had occurred since entry of the prior custody and visitation order, our independent review of the record reveals that, since entry thereof, the father has been determined to have committed a family offense against the mother, he has been adjudicated to have neglected the subject child and ordered to engage in various services, and his visitation has been reduced from unsupervised to supervised. Based on the foregoing, we are satisfied that the requisite change in circumstances was demonstrated (see Matter of Kathleen K. v. Daniel L., 177 A.D.3d 1130, 1132, 115 N.Y.S.3d 117 [2019] ; Matter of Mark RR. v. Billie RR., 95 A.D.3d 1602, 1602–1603 [2012], 944 N.Y.S.2d 808 ).

Turning to the best interests of the child, the father's sole contention on appeal is that Family Court's determination to impose continued supervised visitation between him and the child was not supported by a sound and substantial basis in the record. We disagree. "The guiding principle in fixing a visitation schedule is the best interests of the child, and it is well settled that the best interests of a child generally lie with a healthy, meaningful relationship with both parents" ( Matter of Michael U. v. Barbara U., 189 A.D.3d 1909, 1910, 138 N.Y.S.3d 279 [2020] [internal quotation marks, brackets and citations omitted]). As relevant here, Family Court may order supervised visitation where circumstances demonstrate that "unsupervised visitation would be detrimental to the child[’s] safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" ( Matter of Williams v. Patinka, 144 A.D.3d 1432, 1433, 42 N.Y.S.3d 404 [2016] [internal quotation marks and citations omitted]; see Matter of Sandra R. v. Matthew R., 189 A.D.3d 1995, 1997, 137 N.Y.S.3d 824 [2020] ). Family Court has broad discretion in determining whether supervised visitation is warranted, and we will not disturb its determination where it is supported by a sound and substantial basis in the record (see Matter of Janeen MM. v. Jean–Philippe NN., 183 A.D.3d 1029, 1030–1031, 123 N.Y.S.3d 746 [2020], lv dismissed 35 N.Y.3d...