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

576
CAF 12-01093
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.


IN THE MATTER OF CLARENCE R. BROWN,
PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

SHANNON TERWILLIGER AND MARY ANN TERWILLIGER,
RESPONDENTS-RESPONDENTS.
---------------------------------------------
IN THE MATTER OF CLARENCE R. BROWN,
PETITIONER-APPELLANT,

                    V

KELLY FINNERTY, RESPONDENT-RESPONDENT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR PETITIONER-APPELLANT.

SUSAN JAMES, ATTORNEY FOR THE CHILDREN, WATERLOO.


     Appeal from an order of the Family Court, Cayuga County (Mark H.
Fandrich, A.J.), entered April 27, 2012. The order, among other
things, denied the petitions for visitation.

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

     Memorandum: Petitioner, an inmate serving a 15-year determinate
sentence, commenced these consolidated proceedings pursuant to article
6 of the Family Court Act, seeking visitation with three of his
children, but he subsequently withdrew his request for visitation with
one of the children upon learning that she may suffer emotionally from
visitation with him in prison. The mother and maternal grandmother of
one of the two remaining children (hereafter, daughter) are the
respondents in one proceeding, and the mother of the other child
(hereafter, son) is the respondent in the other proceeding. At the
conclusion of the joint fact-finding hearing, Family Court denied the
petitions but allowed petitioner to communicate in writing with the
two children. We affirm.

     Although we recognize that the rebuttable presumption in favor of
visitation applies when the parent seeking visitation is incarcerated
(see Matter of Granger v Misercola, 21 NY3d 86, 91), we conclude that
respondents rebutted the presumption by establishing by a
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                                                         CAF 12-01093

preponderance of the evidence that visitation with petitioner would be
harmful to the children (see id.). A parent’s failure to seek
visitation with a child for a prolonged period of time is a relevant
factor when determining whether visitation is warranted (see Matter of
Russell v Simmons, 88 AD3d 1080, 1081; Matter of Butler v Ewers, 78
AD3d 1667, 1667), and, here, petitioner has never met the daughter or
the son. In fact, before commencing these proceedings, petitioner did
not seek visitation with either child. Thus, petitioner is
“essentially a stranger to the child[ren]” (Matter of Cole v Comfort,
63 AD3d 1234, 1236, lv denied 13 NY3d 706).

     In addition, the daughter’s counselor testified in detail as to
how visitation would be detrimental to her welfare (see Matter of
Lando v Lando, 79 AD3d 1796, 1796, lv denied 16 NY3d 709; Matter of
Frank P. v Judith S., 34 AD3d 1324, 1324-1325). Although there was no
similar expert testimony regarding the effect of visitation on the
son, such testimony regarding the effect of visitation is not by
itself determinative (see Lando, 79 AD3d at 1796-1797; Matter of
McCullough v Brown, 21 AD3d 1349, 1349-1350), and there was sufficient
other evidence to support the court’s determination, such as testimony
from the son’s mother that he is afraid of seeing petitioner and has
been placed in therapy since he learned of these proceedings.

     In sum, “the propriety of visitation is generally left to the
sound discretion of Family Court[,] whose findings are accorded
deference by this Court and will remain undisturbed unless lacking a
sound basis in the record” (Matter of Conklin v Hernandez, 41 AD3d
908, 910 [internal quotation marks omitted]), and, here, there is a
sound and substantial basis in the record to support the court’s
determination that visitation with petitioner is not in the children’s
best interests (see Matter of Robert AA. v Colleen BB., 101 AD3d 1396,
1397-1399, lv denied 20 NY3d 860).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
