                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   521468
____________________________________

In the Matter of LYNN TT.,
                    Respondent,
      v

JOSEPH O.,
                    Appellant.              MEMORANDUM AND ORDER

DELAWARE COUNTY DEPARTMENT OF
   SOCIAL SERVICES,
                    Proposed
                    Intervenor.

(And Three Other Related Proceedings.)
______________________________________


Calendar Date:   September 8, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


     Dennis B. Laughlin, Cherry Valley, for appellant.

     Christopher Hammond, Cooperstown, for respondent.

     Christine McCue, Central Bridge, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered July 2, 2015, which, among other things,
granted petitioner's applications, in two proceedings pursuant to
Family Ct Act article 6, to modify a prior order of custody and
visitation.
                              -2-                521468

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of a daughter
(born in 2009). Pursuant to an order entered on consent in
August 2014, the parties were awarded joint legal custody of the
child with residential custody to the mother and extensive
visitation to the father. Less than three weeks later, the
mother commenced the first of these proceedings seeking to modify
the August 2014 order by requiring the father's visitations to be
supervised and, further, compelling him to undergo mental health
and substance abuse evaluations. This petition was grounded in
allegations that the father had become intoxicated and engaged in
acts of domestic violence against his then girlfriend – all in
the presence of the parties' child. A few days later, the mother
commenced a second modification proceeding seeking the same
relief – this time based upon allegations that the father and his
girlfriend had engaged in sexual activity with one another while
the subject child was sleeping in the same bed with them.
Shortly thereafter, the father filed two separate petitions
seeking to modify and enforce the August 2014 order contending,
among other things, that the mother had interfered with his
visitation rights.

      In October 2014, Family Court, upon request by the Delaware
County Department of Social Services (hereinafter DSS), issued an
order directing that the underlying petitions be amended to add
DSS as an interested party. DSS then moved by order to show
cause for certain relief and, pending the resolution thereof,
Family Court granted DSS's request that the father's visitations
be supervised by a neutral third party. Shortly thereafter, the
mother and the father each underwent mental health evaluations,
and the father was evaluated for substance abuse; no counseling
or treatment recommendations were made for either party. These
matters then proceeded to a fact-finding hearing, at the
conclusion of which Family Court dismissed the father's petitions
and granted the mother's modification petitions – continuing the
prior award of joint legal custody but modifying the father's
visitation schedule by directing that he have supervised
visitation with the child on Sundays from 9:00 a.m. to 6:00 p.m.
This appeal by the father ensued.
                              -3-                521468

      Preliminarily, we note that the father does not challenge
the dismissal of his respective modification and enforcement
petitions and, therefore, we deem any arguments in this regard to
be abandoned (see Matter of Christopher B. v Patricia B., 75 AD3d
871, 872 n [2010]). As to the mother's modification petitions,
"[a] parent seeking to modify an existing custody [and
visitation] order first must demonstrate that a change in
circumstances has occurred since the entry thereof that is
sufficient to warrant the court undertaking a best interests
analysis in the first instance; assuming this threshold
requirement is met, the parent then must show that modification
of the underlying order is necessary to ensure the child's
continued best interests" (Matter of Ryan v Lewis, 135 AD3d 1135,
1136 [2016] [internal quotation marks and citations omitted]; see
Matter of Schmitz v Schmitz, 139 AD3d 1123, 1123 [2016]). To
that end, the mother offered the testimony of the father's now
ex-girlfriend, who recounted an incident that occurred at her
residence during the early morning hours of August 18, 2014.
According to the ex-girlfriend, the father entered the bedroom
where she and the subject child were sleeping, initiated a
physical altercation with her, remarked how easy it would be to
shoot her and demanded that she have oral sex with him – all in
the presence of the child. The ex-girlfriend refused the
father's advances and left the bedroom; shortly thereafter, the
father and the child emerged, and the father indicated that he
and the child were going home. Prior to leaving, the father said
to the child, "[N]othing happened. You didn't see anything
happen, did you . . .?", to which the child replied, "No daddy,
nothing happened. Nothing happened. We don't need anybody but
you and I, daddy. That's all we need." The ex-girlfriend then
persuaded the father, who purportedly was intoxicated, to allow
her to drive; while en route, the ex-girlfriend testified, the
father continued to berate her, attempted to block her view of
the road and stabbed her with a screwdriver. The ex-girlfriend
eventually was able to pull over to the side of the road and
summon law enforcement. The father denied that any such
altercation occurred, no screwdriver was recovered from the
vehicle and one of the responding officers testified that he saw
no evidence that the father was intoxicated.
                              -4-                521468

      In addition to the foregoing, the mother also offered the
testimony of the DSS caseworker who spoke with the child
following the August 2014 incident. According to the caseworker,
the child informed her that the father and the ex-girlfriend "had
physically fought in her presence on more than one occasion" and
"that the two of them [had] engaged in sexual activity when they
were sleeping in the [same] bed with her." The caseworker
further testified that the child told her that the father had
"screamed at her" and "threatened to get rid of her pets" in
retaliation for speaking with DSS officials and previously had
induced her to make false allegations of maltreatment against the
mother.

      "[A]ccording due deference to Family Court's factual
findings and credibility determinations" (Matter of Colleen GG. v
Richard HH., 135 AD3d 1005, 1008 [2016] [internal quotation marks
and citations omitted]), we are satisfied that the mother
demonstrated the requisite change in circumstances, thus
triggering an inquiry into whether – consistent with the child's
best interests – modification of the prior order was necessary
(see Matter of Fountain v Fountain, 130 AD3d 1107, 1108 [2015];
Matter of Pecore v Blodgett, 111 AD3d 1405, 1405-1406 [2013], lv
denied 22 NY3d 864 [2014]). In this regard, "[t]he decision to
order supervised visitation is left to Family Court's sound
discretion and will only be disturbed by this Court when it lacks
a sound and substantial basis in the record" (Matter of Raychelle
J. v Kendell K., 121 AD3d 1206, 1207 [2014]; see Matter of Knight
v Knight, 92 AD3d 1090, 1092 [2012]). Upon consideration of the
record as a whole, including testimony regarding the father's
apparent temper, documented history of domestic violence and
admittedly extensive history of indicated child protective
services reports,1 we discern no basis upon which to disturb
Family Court's decision to impose supervised visitation here (see
Matter of Chilbert v Soler, 77 AD3d 1405, 1406 [2010], lv denied
16 NY3d 701 [2011]).


    1
        When asked how many indicated reports had been lodged
against him, the father stated that it was "impossible to keep
track" of the precise number and that he did not "even pay
attention to them anymore."
                              -5-                  521468

      The father's remaining contentions do not warrant extended
discussion. To the extent that the father asserts that Family
Court erred in permitting DSS to intervene as an interested party
to these proceedings, the record before us fails to reflect that
the father lodged any objection in this regard. Hence, this
issue is unpreserved for our review. Similarly, although the
father now argues that Family Court erred in admitting into
evidence certain mental health and substance abuse reports
without the testimony of the authoring evaluators, we need note
only that counsel for the father expressly consented to the
admission of such reports during the course of the hearing.
Finally, although the father faults Family Court for failing to
direct that DSS affirmatively assist the parties in locating an
appropriate supervisor for the father's visitations, we are
satisfied that the underlying order affords the father sufficient
flexibility in securing an appropriate supervisor, thereby
providing him with a meaningful opportunity to engage in
visitations with his child. The father's remaining contentions,
to the extent not specifically addressed, have been examined and
found to be lacking in merit.

     Garry, J.P., Lynch, Rose and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
