New York Appellate Division Reports

IN THE MATTER OF VICTORIA X., 99557 [3d Dept 11-22-2006]
2006 NY Slip Op 08715 IN THE MATTER OF VICTORIA X., Alleged
to be a Neglected Child. ST. LAWRENCE COUNTY DEPARTMENT OF
SOCIAL SERVICES, Respondent; and JOHN X., Appellant.
99557. Appellate Division of the Supreme Court of New York,
Third Department. Decided and Entered: November 22, 2006.

Appeal from an order of the Family Court of St. Lawrence
County (Potter, J.), entered November 28, 2005, which, in a
proceeding pursuant to Family Ct Act article 10, issued an
order of protection.

John A. Cirando, Syracuse, for appellant.

David D. Willer, St. Lawrence County Department of Social
Services, Canton, for respondent.

Before: Carpinello, J.P., Rose, Lahtinen and Kane, JJ.

MEMORANDUM AND ORDER

LAHTINEN, J.

Respondent is the father of two children, a daughter born
in 1992 and a son born in 1988. Petitioner alleged, among
other things, that respondent and his wife had abused their
children. At a fact-finding hearing, respondent admitted
that he knew his daughter was being sexually abused by his
son and he did nothing to stop such ongoing conduct. He
further acknowledged firing an arrow from a compound bow in
the direction of his son to scare him. Based on these
admissions, Family Court found the children to be neglected
and set the matter for dispositional hearing. At that
hearing, the parties stipulated to all aspects of the
disposition except whether respondent should be permitted
visitation with his daughter. As to such issue, a report
from the daughter’s therapist was received. Respondent did
not testify at the dispositional hearing. No other evidence
was presented. In its November 2005 order of protection,
Family Court denied respondent any visitation with his
daughter through September 2006. Respondent appeals.[fn1]

Respondent argues that the proceedings failed to provide a
sufficient basis to deny him any visitation. While “denial
of visitation to a biological parent must be based on
compelling reasons and substantial evidence that such
visitation would be detrimental or harmful to the child’s
welfare[,] . . . the rights of a parent are subordinate to
the policy of protecting a child from a parent who is
incapable or unwilling to perform his or her parental
responsibilities” (Matter of Sullivan County Dept. of
Social Servs. v. Richard C., 260 AD2d 680, 682 [1999], lv
dismissed 93 NY2d 958 [1999] [citations omitted]; see Matter
of Shaun X. [Wayne Y.], 300 AD2d 772, 773 [2002]). “The
paramount issue in a dispositional hearing is the best
interest of the child, and an inquiry into the child’s best
interest involves consideration of the parent’s ability to
supervise the child and any potential threat of future
abuse or neglect” (Matter of Kathleen OO. [Karen OO.], 232
AD2d 784, 786 [1996] [citation omitted]). “A determination
of the child[‘s] best interests should only be made after a
full evidentiary hearing unless there is sufficient
information before the court to enable it to undertake an
independent comprehensive review of the child’s best
interests” (Matter of Kenneth H. v. Barbara G., 256 AD2d
1029, 1029 [1998] [citations omitted]).

Although the dispositional hearing was not extensive, most
issues had been resolved by stipulation. Moreover, Family
Court had presided over the earlier proceedings and heard
respondent admit that he knew his son was sexually abusing
his daughter and he took no action to stop such conduct.
The court also heard respondent admit to shooting an arrow
at his other child (see Matter of Jennifer F. [Arlene F.],
235 AD2d 855, 856-857 [1997], lv denied 89 NY2d 815 [1997]
[abusive conduct toward one child can be derivative
evidence as to another child]). Clearly there was evidence
that respondent both disregarded the welfare of his
children and actively put them at risk. Furthermore, the
report of the daughter’s therapist, which was received
without objection, related that the child was making
progress in the foster home, she expressed that she felt
safe in the foster home, she indicated prior sexual abuse
by both her brother and respondent, she repeatedly
verbalized fear of respondent, and she stated that she did
not want to see respondent. The therapist concluded that
“contact with [respondent] is clinically contraindicted at
this time.” Based upon such information, Family Court’s
decision to prohibit visitation for 10 months is adequately
supported by the record and did not constitute an abuse of
its discretion (see Matter of Shaun X. [Wayne Y.], supra at
773; Matter of Angela OO. [Jean OO.], 204 AD2d 768, 769
[1994], lv denied 84 NY2d 803 [1994]).

Next, we consider respondent’s assertion that he was denied
the effective assistance of counsel. After reviewing the
totality of circumstance revealed in the record and
applying the well-established standard of review (see e.g.
Matter of Ashley M. [John M.], 235 AD2d 858, 859 [1997]),
we are unpersuaded that respondent did not receive
meaningful representation (see generally People v. Ford, 86
NY2d 397, 404 [1995]). The remaining arguments have been
considered and found unavailing.

Carpinello, J.P., Rose and Kane, JJ., concur.

ORDERED that the order is affirmed, without costs.

[fn1] At oral argument, respondent’s attorney indicated that
the order denying respondent contact with his daughter has
been extended to November 30, 2006. While neither that
order nor a notice of appeal from that order appears in the
record, petitioner has not argued mootness.