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

1001
CAF 14-00267
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF CHEREE N. CREEK,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JACOB M. DIETZ, RESPONDENT-APPELLANT.


DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-APPELLANT.

KATHLEEN M. MCDONALD, DEPEW, FOR PETITIONER-RESPONDENT.

JAMES A. KREUZER, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Brenda M.
Freedman, R.), entered December 30, 2013 in a proceeding pursuant to
Family Court Act article 6. The order directed that respondent’s
visitation with the subject child be supervised.

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

     Memorandum: Respondent father appeals from an order modifying
the existing custody and visitation order by, inter alia, directing
that he have supervised visitation with the parties’ child. Based on
the record before us, we conclude that the Referee properly determined
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 Rice v Cole, 125
AD3d 1466, 1467 [internal quotation marks omitted]; see Matter of
Vieira v Huff, 83 AD3d 1520, 1521). The mother established that the
father, who had a long history of substance abuse problems, was again
using various illegal drugs, including cocaine, heroin and marihuana
(see Matter of Laware v Baldwin, 42 AD3d 696, 696; Matter of Brady v
Schermerhorn, 25 AD3d 1037, 1038). Indeed, the father admitted that
he had used illegal drugs only a few weeks before the hearing on the
mother’s petition (see Matter of LaFountain v Gabay, 69 AD3d 994,
995). The mother also established that the father had demonstrated
behavioral changes consistent with his behavior during prior periods
of time in which he had been using illegal substances, such as missing
visitation with the child for extended periods of time.

     It is well settled that a determination “regarding custody and
visitation issues, based upon a first-hand assessment of the
credibility of the witnesses after an evidentiary hearing, is entitled
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                                                         CAF 14-00267

to great weight and will not be set aside unless it lacks an
evidentiary basis in the record, i.e., is not supported by a sound and
substantial basis in the record” (Matter of Rulinsky v West, 107 AD3d
1507, 1509 [internal quotation marks omitted]; see Matter of Van Court
v Wadsworth, 122 AD3d 1339, 1340, lv denied 24 NY3d 916). Here, the
Referee made specific findings concerning the potential harm the child
faced if the father were to have unsupervised visitation (cf. Laware,
42 AD3d at 697), and we conclude that the Referee’s “determination to
impose supervised visitation is supported by the requisite sound and
substantial basis in the record” (Rice, 125 AD3d at 1467 [internal
quotation marks omitted]).




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