                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   521897
________________________________

In the Matter of ALAN U.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
MANDY V.,
                    Respondent.
________________________________


Calendar Date:   November 14, 2016

Before:   McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.

                             __________


     Renee J. Albaugh, Delhi, for appellant.

     Jessica C. Eggleston, Johnson City, for respondent.

     David T. Spector, Endicott, attorney for children.

                             __________


Garry, J.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered September 28, 2015, which, among other
things, partially granted petitioner's application, in a
proceeding pursuant to Family Ct Act article 6, to modify a prior
order of visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two children (born in
2002 and 2007). In 2011, by order of fact-finding and interim
disposition, Family Court found, upon the father's consent
without admission, that the father had sexually abused the older
child, adjudicated both children to be neglected and ordered the
father, among other things, to complete certain classes and
evaluations. The father has not seen either child since 2011.
                              -2-                521897

In 2013, the mother was awarded sole custody of both children and
the father was permitted to apply for visitation after completion
of the requirements set forth within the dispositional order.1
The father commenced this modification proceeding in February
2015, requesting visitation with the younger child.2 Following
Lincoln and fact-finding hearings, Family Court awarded the
father one supervised visit for one hour per month, at a time and
date to be arranged by the supervisor and the mother, with the
potential for some expansion if mutually agreed upon. The father
appeals.

      As the party seeking modification, it was the father's
burden to first demonstrate a change in circumstances since the
entry of the prior order "to warrant the court undertaking a best
interests analysis in the first instance" (Matter of David J. v
Leeann K., 140 AD3d 1209, 1210 [2016] [internal quotation marks
and citations omitted]; see Matter of Merwin v Merwin, 138 AD3d
1193, 1194 [2016]). The 2013 order provided, in pertinent part,
that the father was required to comply with the terms of the
dispositional order before visitation with the children could
occur. This order required the father to participate in
parenting classes, sexual abuse evaluations and sexual offender
treatment programs, among other things. In support of his
request, the father cited his compliance with the dispositional
order, consisting of the completion of parenting classes and two
evaluations at a sexual offender treatment program, together with
his participation in counseling a few times each year. In
opposition, the mother contended that the father had failed to
comply with the full terms of that order, as the father's
counseling is not related to sexual abuse, and he was not
recommended for treatment in the sexual offender treatment
program due to his continued denial of problems involving sexual
offending. The attorney for the children concurred with the


    1
        Family Court entered an order of disposition in 2012,
which, among other things, made the 2011 interim disposition a
final order.
    2
        The father's petition included both children, but he
clarified and limited his request at the fact-finding hearing.
                              -3-                521897

mother's position. Nonetheless, the record supports the finding
by Family Court that the father had "technically" complied with
the 2011 dispositional order. Thus, the court properly proceeded
with a best interests analysis.

      Although a child and noncustodial parent are entitled to
meaningful visitation (see Matter of Tropea v Tropea, 87 NY2d
727, 738 [1996]), "[t]he propriety of visitation is left to the
sound discretion of Family Court and its findings, guided by the
best interests of the child, will not be disturbed unless they
lack a sound and substantial basis in the record" (Matter of
Kadio v Volino, 126 AD3d 1253, 1254 [2015] [internal citation and
quotation marks omitted]; see Matter of Dibble v Valachovic, 141
AD3d 774, 775 [2016]). Generally, visitation with a noncustodial
parent is presumed to be in the best interests of the child and
should not be denied absent "substantial proof that contact would
be harmful to the child's welfare" (Matter of Owens v Chamorro,
114 AD3d 1037, 1039 [2014]; see Matter of Kadio v Volino, 126
AD3d at 1254).

      In addressing the father's history of sexual abuse, Family
Court admonished the father for his failure to take steps "to
enter into meaningful sexual offender treatment concerning his
'inappropriate touching' [of the older child]," and found that
his status as an "untreated sex offender" was relevant in
determining his fitness as a parent (Matter of Sean K., 50 AD3d
1220, 1222 [2008]). The attorney for the child cross-examined
the father relative to his limited efforts at pursuing treatment,
and the father responded to some of the questioning by asserting
his Fifth Amendment privilege. The mother testified that,
following the sexual abuse of the older child by the father, the
younger child required years of therapy and exhibited certain
behaviors such as bedwetting, being withdrawn and inappropriate
play. Weighed against these strong negative factors, however,
the father presented the testimony of an acceptable supervisor
for the proposed visits. This individual testified at the fact-
finding hearing that she was willing to supervise the father's
visitation in her office for one hour twice per month, with the
potential to increase to three hours if the visits went well. It
was established that the office was a suitable environment. In
view of the record, Family Court's award of supervised visitation
                              -4-                  521897

with the father for one hour once per month, with the potential
for future increases or modification, was in the best interests
of the child.

      Finally, we reject the father's contention that Family
Court improperly delegated authority to the mother to arrange or
modify visitation (see Matter of Taylor v Jackson, 95 AD3d 1604,
1605 [2012]). Here, the order provides that visitation is to
occur once monthly "at a time and date which is convenient with
[the supervisor] making the arrangements with [the mother]," and
thereafter "the parties may voluntarily continue or expand visits
or either parent may petition for modification of the order." As
the mother has sole custody of the child, it logically follows
that she and the supervisor must arrange visitation. We do not
find an improper delegation of authority to the mother (see e.g.
Matter of MacKenzie v Patrice V., 74 AD3d 1406, 1407 [2010];
compare Matter of Staff v Gelunas, 143 AD3d 1077, 1079 [2016]),
and, upon review, we find no reason to disturb the order.

     McCarthy, J.P., Rose, Mulvey and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
