        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

234
CAF 12-00555
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF CLARENCE R. BROWN, JR.,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MELODY M. DIVELBLISS, RESPONDENT-RESPONDENT.


ELIZABETH A. SAMMONS, WILLIAMSON, FOR PETITIONER-APPELLANT.

STEPHEN R. WARNER, ATTORNEY FOR THE CHILD, SODUS, FOR ALYCIA D.


     Appeal from an order of the Family Court, Wayne County (Daniel G.
Barrett, J.), entered February 29, 2012 in a proceeding pursuant to
Family Court Act article 6. The order dismissed the petition seeking
visitation with the parties’ child.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
the petition is reinstated, and the matter is remitted to Family
Court, Wayne County, for further proceedings in accordance with the
following Memorandum: Petitioner father, an inmate serving a 15-year
sentence in state prison, appeals from an order dismissing his
petition seeking visitation with his then nine-year-old daughter
(child). The father had never previously sought custody of or
visitation with the child. During a court appearance occurring
shortly after the petition was filed, respondent mother agreed to
transport the child to prison so that the child could visit with the
father during the pendency of the proceeding. At a subsequent court
appearance, the Attorney for the Child (AFC) informed Family Court
that the child had one visit with the father, but did not wish to have
any further contact with him. The AFC further stated that the child’s
school counselor told him that contact between the child and the
father was not “preferable.” The mother’s attorney stated that,
although the mother had encouraged the child to visit the father, the
child told the mother that she did not wish to visit the father. The
AFC and the mother thus moved to dismiss the father’s petition. We
agree with the father that the court erred in granting the motion
based on the record before it.

     “ ‘[A]n award of visitation is always conditioned upon a
consideration of the best interests of the child’ ” (Matter of Mills v
Sweeting, 278 AD2d 943, 943-944). “It is generally presumed to be in
a child’s best interest to have visitation with his or her
noncustodial parent and the fact that a parent is incarcerated will
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                                                        CAF 12-00555

not, by itself, render visitation inappropriate” (Matter of Cierra
L.B. v Richard L.R., 43 AD3d 1416, 1416-1417 [internal quotation marks
omitted]; see Matter of Fewell v Ratzel, 99 AD3d 1237, 1237; Matter of
Crowell v Livziey, 20 AD3d 923, 923). “Unless there is a compelling
reason or substantial evidence that visitation with an incarcerated
parent is detrimental to a child’s welfare, such visitation should not
be denied” (Matter of Thomas v Thomas, 277 AD2d 935, 935; see Matter
of Lonobile v Betkowski, 261 AD2d 829, 829). Moreover, “ ‘[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’ ” (Mills, 278
AD2d at 944; see Matter of Secrist v Brown, 83 AD3d 1399, 1400, lv
denied 17 NY3d 706).

     Here, we conclude that “the record is not sufficient to determine
whether visitation [with the father] would be detrimental to [the
child’s] welfare” (Crowell, 20 AD3d at 923 [internal quotation marks
omitted]). Additionally, neither the mother nor the AFC presented any
evidence rebutting the presumption that visitation with the father is
in the child’s best interests, and the record does not otherwise
contain any evidence rebutting that presumption (see Fewell, 99 AD3d
at 1237; Matter of Diedrich v Vandermallie, 90 AD3d 1511, 1511; Matter
of Buffin v Mosley, 263 AD2d 962, 962-963). Although both the AFC and
the mother indicated that the child had visited with the father only
once and that, after the visit, the child did not wish to have any
further contact with the father, “[t]he opposition of [the mother] and
the [AFC to visitation], unsupported by ‘any testimony regarding the
psychological health of the child and whether [s]he would be harmed by
visitations in prison,’ is insufficient to support” a determination
that visitation with the father would be detrimental to the welfare of
the child (Crowell, 20 AD3d at 923; see Buffin, 263 AD2d at 962-963).
Moreover, “no sworn testimony or other evidence was presented, nor did
the court conduct [an] in camera interview[] with the [child]”
(Thomas, 277 AD2d at 935). We therefore reverse the order, deny the
motion, reinstate the petition, and remit the matter to Family Court
for further proceedings on the petition, including an evidentiary
hearing, if necessary.




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
