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

907
CAF 14-01583
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


IN THE MATTER OF CRAIG PROCOPIO,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KELLY PROCOPIO, RESPONDENT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF
COUNSEL), FOR RESPONDENT-APPELLANT.

GERMAIN & GERMAIN, LLP, SYRACUSE (GALEN F. HAAB OF COUNSEL), FOR
PETITIONER-RESPONDENT.

LISA M. FAHEY, ATTORNEY FOR THE CHILDREN, EAST SYRACUSE.


     Appeal from an order of the Supreme Court, Onondaga County
(Martha E. Mulroy, A.J.), entered June 18, 2014 in a proceeding
pursuant to Family Court Act article 6. The order, among other
things, awarded petitioner Craig Procopio sole custody of the subject
children and directed that respondent Kelly Procopio’s visitation with
the children be supervised.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order modifying the
parties’ existing custody/visitation arrangement by directing that she
have supervised visitation with the parties’ children. “Courts have
broad discretion in determining whether visits should be supervised”
(Matter of Campbell v January, 114 AD3d 1176, 1177, lv denied 23 NY3d
902), and that determination “will not be disturbed as long as there
is a sound and substantial basis in the record to support it” (Matter
of Chilbert v Soler, 77 AD3d 1405, 1406, lv denied 16 NY3d 701
[internal quotation marks omitted]). Here, Supreme Court’s
determination to impose supervised visitation is supported by a sound
and substantial basis in the record. The record establishes that the
mother, who struggled with substance abuse and various mental health
issues, including bipolar disorder, had difficulty controlling her
reactive behavior, which largely consisted of verbal abuse and
inappropriate text messages and included some physical abuse. As a
result, she engaged in erratic and abusive behavior toward the
children, who struggled emotionally and required counseling. The
mother’s therapist testified that the mother’s relationship with the
                                 -2-                           907
                                                         CAF 14-01583

children and her visitation with them was a trigger for her reactive
behavior, and that supervised visitation was appropriate in order to
provide the stability and consistency that the mother needed as she
continued to work on her mental health issues (see Matter of Green v
Bontzolakes, 111 AD3d 1282, 1284; Matter of Westfall v Westfall, 28
AD3d 1229, 1229-1230, lv denied 7 NY3d 706; Matter of Simpson v
Simrell, 296 AD2d 621, 621-622).

     We reject the mother’s contention that the court abused its
discretion in relying on the testimony of the children’s counselor
because she was not qualified as an expert and admitted that she was
biased. The counselor was permitted to testify as a fact witness, and
“[w]e give due deference to the factual findings of [the court], which
had the opportunity to observe the [counselor] and assess [her]
credibility” (Matter of Mikolinski v Farnsworth, 249 AD2d 956, 956, lv
denied 92 NY2d 807).

     The mother further contends that the court erred in ordering that
visitation be supervised by the Children’s Consortium or the Salvation
Army due to financial and safety concerns. Contrary to the mother’s
contention, the order permitted the parties to use any other
“comparable supervised visitation program,” and thus the parties were
not required to use the Children’s Consortium or the Salvation Army
for supervised visitation. We note in any event that the record
establishes that it is in the children’s best interests to continue
supervised visitation at one of those facilities (see Matter of Brown
v Gandy, 125 AD3d 1389, 1390). The mother’s contention that the court
erred in ordering that some visitation be supervised by her family is
belied by the record. The mother’s brother testified that he was not
opposed to the mother bringing the children when she visited him every
week or two and that the maternal grandfather was available to
supervise visitation in his home as well.

     Finally, we reject the mother’s contention that the court erred
in ordering her to refrain from sending text messages to the children.
“[T]he evidence in the record supports a determination that . . .
[prohibiting text messaging] contact with the [mother] would be in the
children’s best interests” (Matter of Fletcher v Fletcher, 29 AD3d
908, 909; see Matter of Shockome v Shockome, 53 AD3d 618, 619, lv
denied 11 NY3d 712), and she was not precluded from communicating with
the children in any other manner (cf. Posporelis v Posporelis, 41 AD3d
986, 991).




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
