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

938
CAF 13-01793
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF THE ADOPTION OF SAPPHIRE W.
--------------------------------------------
MARY W., PETITIONER-APPELLANT,
                                                   MEMORANDUM AND ORDER
                    V

DEBBIE R., RESPONDENT-RESPONDENT.


LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., OLEAN (JESSICA L. ANDERSON
OF COUNSEL), FOR PETITIONER-APPELLANT.

FERN S. ADELSTEIN, OLEAN, FOR RESPONDENT-RESPONDENT.

JAY DAVID CARR, ATTORNEY FOR THE CHILD, MACHIAS.


     Appeal from an amended order of the Family Court, Cattaraugus
County (Ronald D. Ploetz, A.J.), entered September 10, 2013 in a
proceeding pursuant to Domestic Relations Law § 112-b. The amended
order terminated post-adoption contact between petitioner and the
subject child.

     It is hereby ORDERED that the amended order so appealed from is
unanimously modified on the law by granting the petition in part and
directing respondent to comply with that part of the agreement
requiring her to provide petitioner with annual progress reports and
photographs in the event that petitioner provides respondent with
annual notice of her address, and as modified the amended order is
affirmed without costs.

     Memorandum: Petitioner, the biological mother of the child at
issue herein, entered into an agreement with respondent, the adoptive
mother of the child, which provided for biannual visits with the child
as a condition of her judicial surrender of her parental rights. The
agreement was determined by Family Court (Nenno, J.) to be in the best
interests of the child (see Domestic Relations Law § 112-b [2]; cf.
Matter of Kaylee O., 111 AD3d 1273, 1274). The agreement provided,
inter alia, that petitioner was entitled to visit the child for a
period of two hours in the months of July and December, and that she
was obligated to contact respondent by the first Monday of July and
the first Monday of December to arrange the visits. The parties
orally modified the agreement to provide for visitation on the day
after Thanksgiving, rather than in December. It is undisputed that
petitioner failed to contact respondent in July 2012 and that in
November 2012 she did not contact respondent until November 15, rather
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                                                         CAF 13-01793

than on November 5, which was the first Monday of November.
Respondent refused to schedule the visit in November 2012, and
petitioner sought to enforce the agreement.

     Following a hearing, Family Court (Ploetz, A.J.) determined that,
although petitioner’s cell phone containing respondent’s telephone
number was destroyed, petitioner failed to make sufficient attempts to
obtain respondent’s telephone number by other means. The court
therefore determined that petitioner breached the agreement. The
court further determined that it was in the best interests of the
child that visitation be terminated.

     The court properly determined that, although petitioner was
ready, willing, and able to visit with the child in November 2012 (cf.
Matter of Mya V.P. [Amber R.—Laura P.], 79 AD3d 1794, 1795), she
breached the agreement based upon her failure to contact respondent
for a visit in July and her failure to provide timely notice of the
visit in November (see id.; cf. Matter of Brown v Westfall, 36 Misc 3d
1234[A], 2012 NY Slip Op 51598[U] [Fam Ct, Yates County]). We further
conclude that the court was entitled to credit respondent’s testimony
regarding the special needs of the child and her opinion that
continued visits with petitioner would not be in the best interests of
the child based upon the child’s needs and petitioner’s periodic
inattention to the child during the two-hour visits (see generally
Kaylee O., 111 AD3d at 1274). The court’s determination that it is
not in the best interests of the child to resume visits with
petitioner is entitled to great deference and, inasmuch as it is
supported by a sound and substantial basis in the record, we will not
disturb it (see Matter of Kristian J.P. v Jeannette I.C., 87 AD3d
1337, 1337-1338).

     We nevertheless conclude that the petition should be granted to
the extent that it seeks to enforce that part of the agreement
providing that, in the event that visitation is terminated, petitioner
is to notify respondent of her address each year by November 1 and
respondent is to provide a progress report and photographs of the
child to petitioner in December of each year. By the terms of the
agreement (see generally Mya V.P., 79 AD3d at 1795), the provision
requiring annual progress reports and photographs did not become
effective until after visitation was terminated, i.e., at the time of
the court’s order. We therefore conclude that the court erred in
failing to grant the petition to that extent, and we modify the
amended order accordingly.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
