Matter of Duane FF. (Harley GG.)
Aaron A. Louridas, Delmar, for appellant.
Allison W. Mussen, Clinton County Department of Social Services, Plattsburgh, for respondent.
D. Alan Wrigley, Cambridge, attorney for the child.
Clark, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entеred September 4, 2014, which, among other things, granted petitioner‘s application, in a proceeding pursuant to
In May 2014, respondent gave birth to a child while she was an inmate in the custody of the Clinton County jail awaiting transfer to a state correctional facility. At that time, no person had been established to be the child‘s father. Two days after the child‘s birth, respondent consented to the child‘s temporary placement in foster care, and, about a week later, petitioner filed a neglect petition pursuаnt to
First, it is well settled that “Family Court may modify the permanency goal, even in the absence of a request” (Matter of Kobe D. [Kelli F.], 97 AD3d 947, 948 [2012] [citations omitted]; see
Our review of the record demonstrates a sound and substantial basis for Family Court‘s sua sponte modification (see Matter of Kobe D. [Kelli F.], 97 AD3d at 948 [2012]; Matter of Rebecca KK., 55 AD3d 984, 986 [2008]). At the combined dispositional and permanency hearing, respondent testified that her earliest release date for her sevеn-year prison term is in 2020, with a possibility of an earlier release date in June 2017 if she participates in certain programming. Petitioner‘s caseworker testified that the father of the child2 was also incarcerated and was serving a five-year prison sentеnce, and respondent agreed that the father would not be a good resource for the child. Further, despite the fact that petitioner had notified respondent‘s relatives of the pendency of the proceeding, no viable custodial resоurces for the child had been identified at the time of the proceeding. The caseworker testified at the hearing that the fоster parents were interested in being a long-term placement for the child. Finally, although petitioner recommended return tо the parent as the planning goal for the child, it was unable to explain how this goal was to be accomplished given respondent‘s lengthy incarceration. Thus, because the record demonstrates that respondent was unable to correct the conditions that led to the child‘s removal, that is, her incarceration and the lack of other custodial resources for thе child, Family Court‘s modification of the permanency goal shall not be disturbed (compare Matter of Alexus SS. [Chezzy SS.], 125 AD3d at 1143).
Turning next to Family Court‘s determination that respondent was nоt entitled to visitation with her child, we begin with the presumption that visitation with a noncustodial parent is in the best interests of a child, even whеn that parent is incarcerated (see Matter of Granger v Misercola, 21 NY3d 86, 91 [2013]; Matter of Kadio v Volino, 126 AD3d 1253, 1254 [2015]). “However, the best interests of the child is paramount and, therefore, an applicаtion for visitation
Here, the child was approximately 3 1/2 months old at the time of the permanency and dispositional hearing and the distance between his foster care home and respondent‘s correctional faсility was estimated to be approximately 300 miles, making it an approximately 12-hour round-trip drive. While we find Family Court‘s characterization that visitation with respondent would have had zero benefit to the newborn child as insensitive—and likely incorrect—we nonetheless agree that the tender age of the child, coupled with the distance of travel, provides a substantial basis for the court‘s denial of visitation (see Matter of Goldsmith v Goldsmith, 68 AD3d at 1210; Matter of Cole v Comfort, 63 AD3d 1234, 1235-1236 [2009], lv denied 13 NY3d 706 [2009]; Matter of Moore v Schill, 44 AD3d 1123, 1123 [2007]).
Finally, inasmuch as the testimony presented indicated that the child and his half sibling have never had contact and do not have an existing relationship, we likewise find that it was not an abuse of discretion for Family Court3 to determine that sibling visitation was not warranted under these circumstances4 (see e.g. Matter of Keenan R. v Julie L., 72 AD3d 542, 542 [2010]; Matter of Sherman v Hughes, 32 AD3d 959, 960-961 [2006]; Matter of Justin H., 215 AD2d 180, 181 [1995], lvs denied 86 NY2d 709, 710 [1995]; see also Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).
Garry, J.P., Rose, Lynch and Devine, JJ., concur. Ordered that the order is affirmed, without costs.