                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 29, 2016                    520004
________________________________

In the Matter of MICHEL HOYT,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

CHRISTINA DAVIS (JOHNSON),
                    Appellant.
________________________________


Calendar Date:    November 14, 2016

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

                              __________


      Susan Patnode, Rural Law Center of New York, Castleton
(Kelly Egan of counsel), for appellant.

     Michael Hoyt, Laurens, respondent pro se.

     Christine E. Nicolella, Delanson, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Otsego County
(Lambert, J.), entered October 9, 2014, which granted
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 father) and respondent
(hereinafter the mother) are the parents of a son (born in 2003).
Pursuant to a February 2014 order entered on consent, the father
had sole legal and primary physical custody of the child and the
mother had a schedule of parenting time. The order also provided
that the mother would engage in therapy to address her parental
alienation syndrome. In April 2014, the father commenced this
modification proceeding seeking to decrease the mother's
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parenting time and require that it be supervised. Following
fact-finding and Lincoln hearings, Family Court granted the
father's request and also continued the provision requiring the
mother to engage in therapy.

      The mother appeals, arguing that Family Court erred in
modifying the February 2014 order because the father failed to
demonstrate a change in circumstances and, even if he did
establish such a change, supervised visitation is not in the
child's best interests. We cannot agree. It is well settled
that the party "seeking a modification of an existing custody
[and visitation] order must first show that a change in
circumstances exists, and once this threshold showing is
satisfied, the party must then demonstrate that modification of
the order ensures the best interests of the child" (Matter of
Coleman v Millington, 140 AD3d 1245, 1246 [2016]; see Matter of
Lynn TT. v Joseph O., 143 AD3d 1089, 1091 [2016]). Here, the
father testified at the hearing that his decision to commence
this proceeding was precipitated by an incident where, after
returning from a weekend visitation with the mother, the child
made comments indicating that he wanted to harm himself. Family
Court credited the testimony of the father and his wife that when
they asked the child why he made the comments, the child
responded that he had heard them from the mother. In our view,
this incident, coupled with the additional testimony regarding
the child's generally distraught and emotional state after
visitations with the mother, demonstrated the requisite change in
circumstances warranting a review of the prior order.

      Turning to the child's best interests, we note that "[t]he
determination of whether visitation should be supervised is a
matter left to Family Court's sound discretion and it will not be
disturbed as long as there is a sound and substantial basis in
the record to support it" (Matter of Tina RR. v Dennis RR., 143
AD3d 1195, 1197 [2016] [internal quotation marks and citations
omitted]; see Matter of Christine TT. v Gary VV., 143 AD3d 1085,
1085 [2016]). Here, Family Court credited the testimony of the
father and his wife describing the child's distraught state of
mind after visitations with the mother. In addition, the father
indicated that the mother had previously forced the child to make
false allegations of abuse against him, which negatively impacted
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his relationship with the child. Despite this, the father
testified that the child "benefit[ed] greatly" from the
supervised visitation with the mother that had been temporarily
imposed during this proceeding. The mother, for her part, merely
denied making any statements about self-harm in the presence of
the child. The mother acknowledged, however, that Child
Protective Services had founded a report against her and the
local social services agency confirmed that, following an
investigation pursuant to Family Ct Act § 1034, a report was
indicated against her. Finally, although not dispositive, the
attorney for the child argues that supervised visitation with the
mother is in the child's best interests (see Matter of Tina RR. v
Dennis RR., 143 AD3d at 1199). Upon consideration of the record
as a whole, and after according deference to Family Court's
factual findings and credibility determinations (see Matter of
Holleran v Faucett, 143 AD3d 1205, 1206 [2016]), we discern no
basis upon which to disturb Family Court's decision to decrease
and supervise the mother's parenting time (see Matter of Vanita
UU. v Mahender VV., 130 AD3d 1161, 1165 [2015], lv denied 26 NY3d
998 [2015]; Matter of Joshua UU. v Martha VV., 118 AD3d 1051,
1052-1053 [2014]).

      As for the mother's remaining contentions, we are
unpersuaded that Family Court erred in requiring her to engage in
counseling, as this was a condition that she had agreed to in the
prior order (see generally Posporelis v Posporelis, 41 AD3d 986,
991-992 [2007]). We similarly reject the mother's contention
that her attorney erred in failing to object to the father's
testimony concerning events predating the prior order (see
generally Matter of Baker v Baker, 283 AD2d 730, 731 [2001], lv
denied 96 NY2d 720 [2001]). Finally, upon our review of the
record, we are satisfied that the mother received meaningful
representation (see Matter of Bennett v Abbey, 141 AD3d 882, 884-
885 [2016]; Matter of Coleman v Millington, 140 AD3d at 1248).

     McCarthy, J.P., Garry, Mulvey and Aarons, JJ., concur.
                        -4-                  520004

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
