Matter of Melissa FF.

• Decision Date: 05 July 2001
• Citation: 285 A.D.2d 682,726 N.Y.S.2d 800
• Parties: In the Matter of MELISSA FF. and Others, Children Alleged to be Abused and/or Neglected.<BR>SULLIVAN COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent;<BR>EDWARD FF., Appellant.
• Court: New York Supreme Court — Appellate Division

285 A.D.2d 682

726 N.Y.S.2d 800

In the Matter of MELISSA FF. and Others, Children Alleged to be Abused and/or Neglected.

SULLIVAN COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent;

EDWARD FF., Appellant.

Decided July 5, 2001.

Mercure, J. P., Peters, Mugglin and Lahtinen, JJ., concur.

Crew III, J.

In December 1996, respondent was found to have sexually abused and neglected his two daughters and to have derivatively neglected his three sons. Family Court, thereafter, entered a dispositional order directing, inter alia, that respondent attend sex abuse counseling until given a positive discharge and prohibiting respondent from having any visitation with the children until further order of the court. An order of protection prohibiting respondent from having any contact with the children also was entered. Following a jury trial, respondent was found guilty of two counts of endangering the welfare of a child, pleaded guilty to two counts of sexual abuse in the first degree, upon which the jury had been unable to reach a verdict, and was sentenced to five years' probation. Respondent subsequently violated his probation, whereupon he was sentenced to, inter alia, consecutive prison terms of 2 1/3 to 7 years.

In March 1999, respondent petitioned for visitation with his children. Family Court treated respondent's application, which had been brought under Family Court Act article 6, as an application to modify the court's prior dispositional order in the underlying Family Court Act article 10 proceeding (see, Family Ct Act § 1061). Family Court subsequently dismissed respondent's application without a hearing, prompting this appeal.

The crux of respondent's argument on appeal is that Family Court erred in summarily dismissing his application without conducting an evidentiary hearing. We cannot agree. Family Court Act § 1061 authorizes Family Court to, inter alia, modify any order issued in the course of a child protective proceeding "[f]or good cause shown." Although the "good cause" inquiry generally necessitates an evidentiary hearing (see, Matter of Angelina AA., 222 AD2d 967, 969), a parent seeking to modify a prior court order and obtain visitation pursuant to Family Court Act § 1061 bears the same initial burden as a parent seeking such relief under Family Court Act article 6—namely, to tender a legally sufficient petition in the first instance (cf., Matter of Davies v Davies, 223 AD2d 884, 886). "One who seeks to modify an existing order of visitation is not...