[*1]
Matter of R.S. (Y.S.)
2015 NY Slip Op 50234(U) [46 Misc 3d 1222(A)]
Decided on February 4, 2015
Family Court, Kings County
O'Shea, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 4, 2015
Family Court, Kings County


In the Matter of R.S. A Child under 18 Years of Age be Neglected By

against

Y.S., Respondent.




NN-20608/14



Corporation Counsel, Michael Cordozo, by Special Assistant Corporation Counsel, Elaine Ku, Esq., 330 Jay Street, Brooklyn, NY 11201, telephone (718) 802-2764

Richard A. Miller, Esq., for Respondent Father, 186 Montague Street, Brooklyn, NY 11201; (917) 887-0884Genevieve Tehang-Behan, for the Child, The Children's Law Center, 44 Court Street, Brooklyn, NY 11201; (718) 522-3333, ext. 128


Ann E. O'Shea, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of the father=s motion for increased visits


On August 12, 2014, the Administration for Children's Services ("ACS") filed a neglect petition against Respondent, Y. S., (the Father), alleging that he neglected his daughter, R. S., born on June 27, 2008, by committing acts of domestic violence against her mother and violating [*2]an active order of protection. R.S. was released to her mother with ACS supervision. The Father was granted a temporary order of visitation permitting him to visit with the child on Saturdays from 10:00 a.m. until 6:00 p.m. supervised by the paternal grandmother. He now seeks an extension of regular supervised visits to every Friday from 4:00 p.m. until Saturday at 8:00 p.m., supervised by the paternal grandmother. ACS consents to supervised overnight visits from Friday through Saturday as the parties can arrange, to be supervised by the paternal grandmother. The non-respondent Mother and the Attorney for the Child oppose the motion.

It is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful (see e.g., In re Nathaniel T, 97 AD2d 973 [4th Dep't 1983]). Thus, during the pendency of a neglect proceeding, a respondent shall "be granted reasonable and regularly scheduled visitation unless the court finds that the child's life or health would be endangered thereby" (Family Ct Act § 1030[c]; see Matter of Nyasia J., 41 AD3d 478, 479 (2d Dep't 2007]). The nature of that visitation depends upon the circumstances of the case. ACS Policy Guidelines for Determining the Appropriate Level of Supervision for Family Visits (Guidelines) make clear that visits between the child, his or her parents, siblings and other family members should be as extensive, unrestricted, and normalized as the child=s physical, mental, and emotional well-being allow. Indeed, the Guidelines provide that A[v]isits must be unsupervised unless visitation poses a risk to the physical and/or emotional safety of the children [or] there is reason to believe that the parent may attempt to interfere with, manipulate or coerce the child=s potential testimony; or there is a court order requiring a higher level of supervision. The Guidelines prescribe that the level of supervision and the kinds of visits must be continuously assessed and liberalized as appropriate:

"Supervision levels must decrease when parents demonstrate they are able to meet the physical and emotional safety needs of their child . . . As soon as possible, visits should move from the agency to the community . . . "

And the Guidelines note that, as a general rule, successful overnight and weekend visits between the parents and the child over a period of time should precede a trial or final discharge.

Here, the Father currently has supervised visitation with R.S. for 8 hours every Saturday, and he only seeks an expansion of supervised visits to include an overnight. An expansion of his visits is consistent with the underlying policy of the Family Court Act and the Guidelines.ACS consents to supervised overnight visits. Although the Attorney for the Child concedes that visits are going well, she opposes the motion on the grounds that R.S. is not comfortable with the idea of overnight visits.[FN1] There is no evidence that her discomfort with the prospect of overnight visits rises to the level of a danger to R.S.'s life, health, or physical, mental or emotional well-being. The child's lack of comfort, standing alone, is not sufficient to preclude the expansion of the Father's visits.

The Mother opposes the motion on the grounds that the Father has a history of failing to [*3]follow court orders, and additionally contends that the Father is not following the current supervised visitation order. The Mother's limited statutory role under Family Ct Act § 1035 (d) to pursue temporary custody of the child during fact-finding, and seek permanent custody during the dispositional phase, (see Matter of Telsa Z. (Rickey Z.—Denise Z.), 71 AD3d 1246 [3d Dep't 2010]), does not include standing to intervene in the Father's motion for expanded visits. (cf. Matter of Damian D. (Travis D.), 2015 NY Slip Op 00263 [3d Dep't Jan. 8, 2015][non-respondent mother raised a due process challenge to the orders imposing supervised visitation on her]).

In the absence of any evidence that an expansion of the Father supervised visitation from day visits to one overnight visit per week poses any risk to R.S.'s physical, mental or emotion well-being, the Father's motion for visitation with R.S. every Friday from 4:00 p.m. until Saturday at 8:00 p.m., supervised by the paternal grandmother, is granted.

This constitutes the decision of this Court. The Clerk is to enter an order accordingly.

Dated: February 4, 2015
___________________________________
Ann E. O'Shea, A.J.S.C.

Footnotes


Footnote 1: The Attorney for the Child also seeks denial of the motion on the grounds that the Father has a history of failing to follow court orders, but does not state how the father=s past failure to follow court orders affects R.S.'s life or health.