                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   521673
__________________________________

In the Matter of TEMER LEARY,
                    Appellant,
      v

CAMILLE MAE McGOWAN,                        MEMORANDUM AND ORDER
                    Respondent.

(And Another Related Proceeding.)
__________________________________


Calendar Date:   September 9, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


      Susan Patnode, Rural Law Center of New York, Castleton
(Cynthia Feathers of counsel), for appellant.

     Cheryl L. Sovern, Clifton Park, for respondent.

     J. Mark McQuerrey, Hoosick Falls, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Warren County
(James, J.H.O.), entered February 20, 2015, which, in two
proceedings pursuant to Family Ct Act article 6, among other
things, dismissed petitioner's application at the close of his
case.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a son (born
in 2005). Between November 2005 and February 2010, the father,
who previously had resided with the mother and the child, was
incarcerated at various state correctional facilities and, during
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this time period, the mother periodically would bring the child
to such facilities for visitations. Following the father's
release, the parties again resided together until the father
returned to prison in early 2013.

      When the mother declined to resume prison visitations, the
father commenced the first of these proceedings in May 2014
seeking visitation with his son. Following service of a pro se
petition, the mother filed an amended petition in July 2014
seeking sole legal and primary physical custody of the child. In
conjunction therewith, the mother also filed a family offense
petition alleging that the father had committed acts that, among
other things, constituted stalking in the fourth degree. In
response, Family Court (Breen, J.) issued a temporary order
awarding the mother sole legal and primary physical custody of
the child and permitting the father to write letters to the child
– subject to review by the attorney for the child.

      Prior to the start of the hearing as to the custody and
visitation petitions, the father, who apparently was under a
preexisting order of protection in favor of the mother, consented
(without making any admissions) to the imposition of a two-year
stay-away order of protection in favor of the mother – said order
to expire on February 13, 2017 – thereby resolving the family
offense petition. As to the disposition of the instant
proceedings, Family Court (James, J.H.O.), among other things,
granted the mother's motions to dismiss the father's petition at
the close of his case and to withdraw her custody petition and
vacated all prior temporary orders issued in conjunction with the
parties' respective petitions – including the temporary order
permitting the father to write letters to the child. This appeal
by the father ensued.

      To be sure, "visitation with a noncustodial parent is
presumed to be in the best interests of a child, even when that
parent is incarcerated" (Matter of Joshua SS. v Amy RR., 112 AD3d
1159, 1160 [2013], lv denied 22 NY3d 863 [2014]; see Matter of
Rumpel v Powell, 129 AD3d 1344, 1345 [2015]; Matter of Kadio v
Volino, 126 AD3d 1253, 1254 [2015]). "The presumption may be
overcome, however, upon a showing, by a preponderance of the
evidence, that visitation would be harmful to the child's welfare
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or not in the child's best interests" (Matter of Kadio v Volino,
126 AD3d at 1254 [citations omitted]; see Matter of Coley v
Mattice, 136 AD3d 1231, 1232 [2016]). In this regard, "[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 Moore v Schill, 44
AD3d 1123, 1123 [2001]; see Matter of Joshua SS. v Amy RR., 112
AD3d at 1160).

      Here, although Family Court indeed misapplied the
applicable burden of proof – requiring the father to demonstrate
that visitation would be in the child's best interests instead of
requiring the mother to rebut the presumption in favor thereof by
a preponderance of the evidence (see Matter of Rogowski v
Rogowski, 251 AD2d 827, 827 [1998]) – we cannot say that the
court abused its discretion in denying the father's request for
prison visitations. While the precise nature and extent of the
father's relationship with the child is subject to debate, there
is no real question that the father had an established
relationship with the child prior to the father's most recent
incarceration in early 2013. Indeed, the mother admitted that
she periodically took the child to visit the father while he was
incarcerated from 2005 to 2010 and that the father resided with
her, her child from a prior relationship and the subject child
following his release from prison in 2010. The record further
reflects that, consistent with the August 2014 temporary order of
custody and visitation, the father regularly corresponded with
the child from prison and that all but one of those letters was
deemed to be appropriate by the attorney for the child. That
said, the record also reflects that, as of the time of the
hearing, the father had been incarcerated for six of the 9½ years
of the child's life and, by his own admission, was working out of
town "for several weeks" at a time while he was residing with the
child and the mother following his release from prison in 2010.

      In addition to the foregoing, the record reveals that the
father has serious anger management issues – as demonstrated by
both the mother's testimony and the content of the letters that
the father admittedly authored and sent to her while he was in
prison. On these points, the mother testified as to incidents
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wherein the father smashed household items in the presence of the
child and trashed a hotel room during a family vacation.
Additionally, the record contains several letters from the father
to the mother – appropriately characterized by Family Court as
"disgusting" and "vicious" – wherein the father repeatedly
threatened the mother's life, stating, among other things,
"Stabbing you is to[o] good. Som[e]day I will pour gas on you
and light you on fire. Maybe I will light your mother at the
same time[.] Count your days b****[.] I will be out in 24
months." In another letter, the father wrote, "[Y]ou can laugh
now [but] you will cry later. [Y]ou must be out of your f***ing
mind to play with me . . . see you in 24 months. I really
thought you knew better[.]" Although the father testified that
he wrote such letters out of anger and frustration and had taken
various courses in prison to address those issues, Family Court
correctly noted that the father offered no "credible evidence"
that his tendencies toward anger and violence were "successfully
under control."

      Finally, the mother, who would be unable to facilitate
prison visits due to the outstanding order of protection,
testified that the child was "bother[ed]" by prison visits with
the father because he now was old enough to appreciate the
significance of his father's incarceration and be impacted by the
environment in which such visits would take place. Although the
father suggested that the child's paternal grandfather could
provide transportation for and supervise such visits, the father
admitted that the child barely knew his paternal grandfather.
Notably, the paternal grandfather testified that he "never had a
relationship" with the father and, as of the time of the hearing,
had only met the subject child and/or spoken with the mother
"three times" – all of which apparently was occasioned, in large
measure, by the fact that the paternal grandfather "did 27 years
in prison" and was not released until July 2011.

      Upon reviewing the record as a whole, and taking into
consideration the father's documented hatred of the mother, the
lack of an appropriate supervisor for the child's visits with the
father and the father's failure to establish that he has
addressed and successfully resolved his anger issues, we cannot
say that Family Court abused its considerable discretion in
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denying the father's request for prison visits. To the extent
that the father now seeks to reestablish written contact with his
son, that is an issue best addressed by Family Court in the first
instance. Finally, although a Lincoln hearing indeed is the
preferred method for ascertaining a child's wishes, such a
hearing is not mandatory (see Matter of Merwin v Merwin, 138 AD3d
1193, 1195 [2016]) – particularly where, as here, the child's
wishes were otherwise communicated to the court. The father's
remaining arguments, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     McCarthy, J.P., Devine, Clark and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
