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

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CAF 13-00872
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF JENNIFER RICE,
PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

LORI COLE, RESPONDENT,
AND MICHAEL WIGHTMAN, RESPONDENT-APPELLANT.


TYSON BLUE, MACEDON, FOR RESPONDENT-APPELLANT.

M. KATHLEEN CURRAN, ATTORNEY FOR THE CHILD, CANANDAIGUA.


     Appeal from an order of the   Family Court, Ontario County (Stephen
D. Aronson, A.J.), entered April   9, 2013 in a proceeding pursuant to
Family Court Act article 6. The    order, among other things, directed
that respondent Michael Wightman   have supervised visitation with the
parties’ child.

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

     Memorandum: In this proceeding under Family Court Act article 6,
respondent father appeals from an order modifying the existing
custody/visitation arrangement by directing that he have supervised
visitation with the parties’ child. We conclude that petitioner
mother established a sufficient “ ‘change in circumstances that
reflects a genuine need for the modification so as to ensure the best
interests of the child’ ” (Matter of Frisbie v Stone, 118 AD3d 1471,
1472). Here, the mother established that the father was engaged in an
altercation with the child’s grandmother in front of the child,
resulting in police intervention, and that the father fired a shot
from a BB gun that narrowly missed hitting the child while she was
trying to set up a target (see generally Raychelle J. v Kendall K.,
121 AD3d 1206, 1207-1208). Furthermore, we conclude that Family
Court’s determination to impose supervised visitation is supported by
the requisite “ ‘sound and substantial basis in the record’ ” (Matter
of Vasquez v Barfield, 81 AD3d 1398, 1398; see generally Frisbie, 118
AD3d at 1472).

     Although we agree with the father that the court erred in
considering his 2010 mental health evaluation rather than his 2012
mental health evaluation, which was stipulated into evidence and is
part of the record on appeal, we nevertheless conclude that the error
is harmless. Even absent consideration of the 2010 or 2012
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                                                         CAF 13-00872

evaluation, there is a sound and substantial basis in the record for
the court’s determination to order supervised visitation (see
generally Matter of Scala v Evanson, 78 AD3d 954, 955).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
