In re Steven M.
Egan Jr., J.
Respondent is the biological father of, among others, Steven M. (born in 2007). After the child returned from a visitation with respondent in January 2010, Steven‘s mother noticed bruises on his back and buttocks and notified her caseworker. Petitioner thereafter commenced this proceeding against respondent alleging that he abused and/or neglected Steven and derivatively neglected Jasheem N., the son of his then roommate. Following the removal of this proceeding from Family Court to the Integrated Domestic Violence Part of Supreme Court, a combined bench trial ensued, at which Supreme Court heard proof regarding both the underlying petition and the related criminal charges. At the conclusion thereof, Supreme Court found, among other things, that respondent had abused and/or neglected Steven, but dismissed the petition as to Jasheem, concluding that the proof adduced was insufficient to support a finding of derivative neglect.1 As to disposition, Supreme Court imposed a one-year no-contact order of protec
Preliminarily, although respondent‘s notice of appeal predates Supreme Court‘s order and, therefore, technically is premature, we will exercise our discretion and treat it as valid (see Matter of Joshua UU. [Jessica XX.—Eugene LL.], 81 AD3d 1096, 1097 n 2 [2011]). Turning to the merits, to establish a prima facie case of abuse or neglect, the petitioning agency must show, by a preponderance of the evidence (see Matter of Alexander F. [Raddad I.], 82 AD3d 1514, 1515 [2011]; Matter of Jordan XX., 53 AD3d 740, 740 [2008]), that the child in question sustained the type of injury that ordinarily would not occur absent an act or omission by the parent or person otherwise legally responsible for his or her care and, further, that such individual was the caretaker of the child at the time the underlying injury occurred (see
Here, Steven‘s mother testified that she observed bruises and welts on the child‘s back and buttocks after he returned from a weekend visitation with respondent, and photographs of the child‘s injuries, as well as the medical records documenting his subsequent visit to a local emergency room, were received into evidence at the hearing. The mother further testified that when she asked respondent how the child had sustained his injuries, respondent admitted that he struck Steven with a leather belt because the child was not potty trained.
Although we agree with respondent that petitioner failed to make out a prima facie case of abuse (see
As to disposition, Supreme Court imposed a one-year order of protection barring respondent from having any contact with his child and expressly conditioned respondent‘s right to future visitation upon a showing that he had made a reasonable attempt to engage in various programs and services. Even then, the court directed, such visitation would be afforded only if the child‘s counselor did not conclude that it would be contrary to the child‘s best interest.3 Supreme Court cannot, however, as it did here, delegate its best interest inquiry to a third party (see Gadomski v Gadomski, 256 AD2d 675, 677 [1998]). Additionally, the case law makes clear that “although a court may direct a party ... to seek counseling as a component of the court‘s custody or visitation order, [it] does not have the authority to order that a party undergo counseling or therapy before visitation will be allowed” (Matter of Dennison v Short, 229 AD2d 676, 677 [1996] [internal quotation marks and citations omitted]; see Matter of Saggese v Steinmetz, 83 AD3d 1144, 1145 [2011], lv denied 17 NY3d 708 [2011]; Matter of Marchand v Nazzaro, 55 AD3d 968, 969 [2008]; Gadomski v Gadomski, 256 AD2d at 677), which is precisely what occurred in this matter
Finally, while we in no way condone respondent‘s behavior toward his son, the record before us does not contain “compelling reasons and substantial evidence” (Matter of Paige WW. [Charles XX.], 71 AD3d 1200, 1204 [2010] [internal quotation marks and citations omitted]) warranting the “drastic remedy” (Matter of Robert TT. v Carol UU., 300 AD2d 920, 920 [2002]) of denying respondent any visitation with Steven—particularly when respondent was amenable to having such visitation supervised by petitioner. For these reasons, this matter is remitted to Supreme Court for a new hearing on the issue of visitation.
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as adjudicated Steven M. to be an abused child and ordered that respondent have no visitation with Steven M.; Steven M. is adjudicated to be a neglected child and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed.