                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      519404
_________________________________

In the Matter of JOSHUA C.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
YOLANDA C.,
                    Respondent.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   April 18, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                             __________


     Michelle I. Rosien, Philmont, for appellant.

     Lisa A. Burgess, Indian Lake, for respondent.

      Eleanor K. Mullaney, Saratoga Springs, attorney for the
child.

                             __________


Aarons, J.

      Appeal from an order of the Family Court of Fulton County
(Skoda, J.), entered June 23, 2014, which, among other things,
dismissed petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter (born in
2005). The father has been incarcerated since December 2006. In
April 2008, he pleaded guilty to crimes related to sexually
                               -2-                519404

abusing three young children – his own niece, his stepdaughter1
and their friend, all of whom were around the age of seven at the
time of the abuse. His earliest release date is 2021. Pursuant
to a July 2007 order, the child's maternal aunt had sole custody
of the child with visitation to the mother. In September 2007,
the parties consented to a modification of the order such that
the mother was granted sole custody with visitation to the father
to be mutually agreed upon by the parties. In July 2013, the
father commenced the instant modification and violation
proceedings, alleging that the mother had refused to permit any
visitation or communication with the child. Following a fact-
finding hearing, Family Court issued an order denying the father
in-person visitation with the child. The father appeals.2

      Initially, when a party seeks to modify an existing custody
order, such party must first demonstrate a change in
circumstances, and when this showing is satisfied, the court then
undertakes a best interests analysis to see if a modification is
warranted (see Matter of Bush v Miller, 136 AD3d 1238, 1239
[2016]; Matter of Menhennett v Bixby, 132 AD3d 1177, 1179
[2015]). Although Family Court did not address whether the
father demonstrated a change in circumstances since the entry of
the September 2007 order, we are empowered to independently
review the record (see Matter of Clouse v Clouse, 110 AD3d 1181,
1183 [2013], lv denied 22 NY3d 858 [2014]; Matter of Casarotti v
Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852
[2013]). To that end, pursuant to the prior order, the father
had multiple visits with the child per year and regular phone
contact. However, by the time he commenced these proceedings,


     1
        The father's stepdaughter testified at the hearing that
the father molested her four times a week over a three-year
period.
     2
        Family Court's order also permitted the father to
communicate with the child by phone and to exchange mail with
her, but only to the extent that the mother consented to such
contact. Based upon a stipulated order agreed to after the
briefs were submitted, the father subsequently withdrew his
argument challenging this aspect of Family Court's order.
                              -3-                519404

the father had been impeded by both the mother and the paternal
grandmother from having any contact with the child. The
cessation of all communication constituted a change in
circumstances to warrant an inquiry into the best interests of
the child (see Matter of Colleen GG. v Richard HH., 135 AD3d
1005, 1007 [2016]; Fermon v Fermon, 135 AD3d 1045, 1046 [2016]).

      "It is presumed that visitation with a noncustodial parent
is in the child's best interests, even when that parent is
incarcerated" (Matter of Ruple v Cullen, 115 AD3d 1123, 1123
[2014]; see Matter of Hayes v Hayes, 128 AD3d 1284, 1285 [2015]),
but the presumption may be overcome by "showing, by a
preponderance of the evidence, that visitation would be harmful
to the child" (Matter of Granger v Misercola, 21 NY3d 86, 92
[2013]; see Matter of Coley v Mattice, 136 AD3d 1231, 1232
[2016]; Matter of Duane FF. [Harley GG.], 135 AD3d 1093, 1095
[2016], lv denied ___ NY3d ___ [May 3, 2016]). At trial, the
mother testified that the child has been diagnosed with several
mood and behavioral disorders, including attention deficit
disorder, attention deficit hyperactivity disorder and
bipolar/mood disorder. The child has been in therapy for two
years and on medication for one year. The mother stated that,
following in-person visits with the father in prison, the child
acted out aggressively, punched, kicked, screamed and appeared
distraught and angry. She testified that, after telephone
conversations with the father, the child would become "mean and
very temperamental." She stated that, for at least 2½ years, the
child has not expressed a desire to spend time with the father.
The father's stepchild testified that she observed the child get
angry after speaking to the father on the phone. She also stated
that she has not heard the child express a desire to spend more
time with the father. The paternal grandmother described the
child as becoming increasingly "fragile" and "volatile."

      The father was the only individual to testify that he and
the child enjoyed a relationship that was in any way beneficial
to her. The father also conceded that he has not been to any sex
offender therapy. Based on the testimony of the mother, the
stepchild and the paternal grandmother that visitation with the
father exacerbated the child's behavioral problems and the
evidence that the father has sexually abused three girls of the
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child's age but has not received sex offender treatment, there
was a sound and substantial basis in the record for Family Court
to conclude that in-person visitation with the father was not in
the child's best interests (see Matter of Patrick EE. v Brenda
DD., 129 AD3d 1235, 1237-1238, lv denied 26 NY3d 908 [2015];
Matter of Cardwell v Mighells, 122 AD3d 1293, 1293-1294 [2014];
Matter of Gutkaiss v Leahy, 285 AD2d 752, 753 [2001]).

     Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
