                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 20, 2016                    520703
________________________________

In the Matter of CHRISTINE TT.,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

DINO UU.,
                    Respondent.
________________________________


Calendar Date:    September 8, 2016

Before:    Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                              __________


        William V. O'Leary, Albany, for appellant.

        Mark A. Schaeber, Liverpool, for respondent.

                              __________


Lynch, J.

      Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered March 12, 2015, which partially dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of custody and visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a daughter (born in
2003). In September 2012, Family Court granted sole custody to
the father due to the mother's abuse of alcohol.1 The mother was
granted limited visitation to be supervised by the maternal


    1
        The proceedings before Family Court were combined with a
separate proceeding involving the mother's younger child, who has
a different father (Matter of Christine TT. v Gary VV., ___ AD3d
___ [decided herewith]).
                              -2-                520703

grandmother each Wednesday from 4:00 p.m. to 6:00 p.m. at a
community resource center. Importantly, the mother was directed
to complete a long-term residential substance abuse
rehabilitation program with a mental health component. Having
completed both a residential treatment program from August 2012
through March 2013 and a weekly 20-hour outpatient program in
February 2014, the mother filed a petition to modify the custody
order in June 2014. An amended petition was filed in September
2014, seeking an award of joint custody and regular unsupervised
visitation with the child.

      At an initial appearance on September 24, 2014, Family
Court scheduled a fact-finding hearing to commence on January 7,
2015. The court also granted the attorney for the child's
request for a Lincoln hearing, explaining to the father, who was
not represented by counsel, that a Lincoln hearing "allows [the
child] and her lawyer to talk to the Judge without everybody
else." The court invited the parties to submit "questions or
topics that you think might be appropriate" prior to the hearing,
which was scheduled for December 16, 2014. No objections were
raised, and neither party submitted any requests to the court.
The Lincoln hearing was held as scheduled.

      Following the fact-finding hearing, Family Court found a
change in circumstances, given the mother's rehabilitation
efforts and extended period of sobriety, as well as the closure
of the resource center and the maternal grandmother's inability
to provide supervision. Turning to the best interests of the
child, Family Court continued the award of sole custody and
placement with the father – a determination not challenged on the
appeal. In view of the undisputed strained relationship between
the mother and the child, Family Court directed the father to
enroll the child in counseling "with the goal of reunification
with [the mother]," and further directed the child to attend "at
least two joint sessions with [the mother] and the counselor."
The court provided that further counseling would be at the
father's discretion. If successful, the court authorized
visitation as the parties mutually agreed, taking into account
the advice of the counselor. Failing an agreement, either party
could petition the court "for the limited purpose of determining
                               -3-                 520703

an appropriate visitation schedule."   The mother appeals.2

      A parent seeking to modify an existing custody order must
"demonstrate[] a change in circumstances that warrants an inquiry
into the best interests of the child" (Matter of Schlegel v
Kropf, 132 AD3d 1181, 1182 [2015]). There is no dispute here
that Family Court properly determined that the mother established
a change in circumstances. As such, our focus is on the best
interests of the child. Visitation with a noncustodial parent is
presumed to be in the best interests of a child, but not where,
as here, that parent's behavior has been detrimental to the child
(see Matter of Kadio v Volino, 126 AD3d 1253, 1254 [2015]).
During her testimony, the mother candidly acknowledged that her
relationship with the child was "[n]on-existent. . . . I don't
know my daughter much anymore." Her request to initiate
counseling was to "rebuild my relationship" with the child, who
she conceded did not want to see her.

      During her extended rehabilitation, both inpatient and
outpatient, the mother did not participate in any Wednesday
visitations and actually only visited with the child once during
the December 2013 holiday season. Her efforts to communicate
with the child in writing were limited, by her own admission.
She also had limited telephone contact with the child, but not
for lack of trying. The mother testified that she was allowed
one weekly phone call while an inpatient and that she tried to
call each week with limited success. It is troubling that by his
own admission, the father routinely would neither answer nor
return the calls, and he conceded that his voicemail was usually
full and that he did not respond to the mother's text messages –
effectively frustrating the mother's ability to verbally
communicate with the child (see Matter of Chris X. v Jeanette Y.,
124 AD3d 1013, 1016 [2015]; Matter of Brown v Erbstoesser, 85
AD3d 1497, 1500 [2011]). A defining moment in the mother-child
relationship occurred in March 2014 when the child telephoned the
mother for the first time to initiate a visit. During that call,
the mother explained that she was away in the City of Watertown,
Jefferson County visiting a boyfriend who she described as "very


    2
        The father has not filed a brief on appeal.
                              -4-                520703

special" and would be unable to see her for a week. The child
has not spoken to her since that call, which the mother concedes
made the child feel rejected.

      Given the above, we find a sound and substantial basis in
this record for Family Court's decision to modify the prior
visitation order by limiting the mother's visitation to a
counseling format – which the mother acknowledged was the best
she could hope for given her strained relationship with the child
(see Matter of Klee v Schill, 95 AD3d 1599, 1601 [2012]; Matter
of Braswell v Braswell, 80 AD3d 827, 830 [2011]). That said, by
effectively making further visitation contingent on the success
of counseling and the father's approval, Family Court improperly
delegated its authority to structure a visitation schedule (see
Matter of Taylor v Jackson, 95 AD3d 1604, 1605 [2012]; Matter of
William BB. v Susan DD., 31 AD3d 907, 908 [2006]; compare Matter
of Klee v Schill, 95 AD3d at 1600). We conclude that the matter
must be remitted to Family Court for a determination as to
whether a resumption of visitation with the mother would be in
the child's best interests and, if so, under what conditions (see
Matter of Taylor v Jackson, 95 AD3d at 1605; Matter of Brown v
Erbstoesser, 85 AD3d at 1500).

      Finally, the mother asserts that Family Court improperly
conducted the Lincoln hearing prior to the commencement of the
fact-finding hearing and, thus, had a preconceived notion of the
child's circumstances without the benefit of having heard all the
evidence. First, the mother failed to preserve this argument
through an appropriate objection (see Matter of Verry v Verry, 63
AD3d 1228, 1229 n 2 [2009], lv denied 13 NY3d 707 [2009]). In
any event, as recounted above, the mother fully acknowledged that
her relationship with the child was strained due to the mother's
own conduct – a concession that obviates any suggestion that
Family Court was misdirected by the discussions with the child.
As for the timing of the Lincoln hearing, we are mindful that a
Lincoln hearing generally should be held at a point either during
or at the conclusion of a fact-finding hearing, given that a
recognized purpose of a Lincoln hearing "is to corroborate
information acquired through testimonial or documentary evidence
adduced during the fact-finding hearing" (Matter of Spencer v
Spencer, 85 AD3d 1244, 1245 [2011] [internal quotation marks and
                              -5-                  520703

citation omitted]; see Matter of Rush v Roscoe, 99 AD3d 1053,
1055 [2012]). Corroboration, however, is not the only purpose of
a Lincoln hearing. Indeed, the fundamental purpose of a Lincoln
hearing is to ascertain a child's preferences and concerns (see
Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]; Matter of
Gonzalez v Hunter, 137 AD3d 1339, 1342-1343 [2016], lv dismissed
and denied 27 NY3d 1061 [2016]; Matter of Battin v Battin, 130
AD3d 1265, 1265-1266 [2015]; Matter of Julie E. v David E., 124
AD3d 934, 937 [2015]). Here, there was very little contact
between the child and the mother for several years prior to the
commencement of the fact-finding hearing and, thus, a limited
need to corroborate any disputed events. Moreover, as observed
by the Court of Appeals in Matter of Lincoln v Lincoln (24 NY2d
at 273), we are confident that trial judges recognize that any
new information derived during a Lincoln hearing should not be
considered "without in some way checking on its accuracy during
the course of the open hearing" (id.). Given the mother's
concessions, no such concern arises in this case. As such, were
this issue before us we would perceive no error with the timing
of the Lincoln hearing.

     Garry, J.P., Egan Jr., Rose and Aarons, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by deleting so much of the third and fourth decretal
paragraphs thereof as conditioned continued counseling and
visitation on the discretion of the child and respondent; matter
remitted to the Family Court of Cortland County for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
