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

1054
CAF 13-02130
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF THOMAS CARDWELL,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JESSICA MIGHELLS, RESPONDENT-RESPONDENT.


LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., OLEAN (JESSICA L. ANDERSON
OF COUNSEL), FOR PETITIONER-APPELLANT.

MARK S. WILLIAMS, PUBLIC DEFENDER, OLEAN (DARRYL R. BLOOM OF COUNSEL),
FOR RESPONDENT-RESPONDENT.

BRIDGET A. MCCUE-MARSHALL, ATTORNEY FOR THE CHILD, RANDOLPH.


     Appeal from an order of the Family Court, Cattaraugus County
(Ronald D. Ploetz, A.J.), entered August 21, 2013 in a proceeding
pursuant to Family Court Act article 6. The order dismissed the
petition.

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

     Memorandum: Petitioner father commenced this Family Court Act
article 6 proceeding seeking visitation with the parties’ two-year-old
daughter. Following a trial, Family Court dismissed the petition
without prejudice to reapply for visitation upon the fulfillment of
certain conditions, including completion of another sex offender risk
assessment. We affirm.

     “[T]he 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 Golda v Radtke, 112 AD3d 1378, 1378 [internal
quotation marks omitted]). Although we recognize the rebuttable
presumption that visitation with the noncustodial parent is in the
child’s best interests (see Matter of Granger v Misercola, 21 NY3d 86,
90-91; Matter of Cormier v Clarke, 107 AD3d 1410, 1411, lv denied 21
NY3d 865), we also recognize the principle that the court “may deny
visitation to parties that refuse to submit to examinations” (Matter
of Rogers v Fodor, 307 AD2d 395, 396). Here, the record reflects that
the father is a level one sex offender who was convicted of rape in
the third degree for having sexual intercourse with the then-underage
respondent mother and that the subject child is the product of the
                                 -2-                          1054
                                                         CAF 13-02130

rape. At trial, the father admitted that he failed to complete the
court-ordered sex offender risk assessment. We thus conclude that the
court was authorized to deny visitation (see generally id.).
Additionally, the court’s determination to deny the father visitation
is supported by the father’s failure to accept fault for the rape of
the mother (see Matter of Amparo B.T. [Carlos B.E.], 118 AD3d 809,
811-812; see also Matter of Enrique T. v Annamarie M., 15 AD3d 310,
310-311; Matter of Robbins v Albany County Dept. of Social Servs., 179
AD2d 908, 908-909). We thus see no basis to disturb the court’s
determination that visitation should be denied at this time.

     Contrary to the father’s further contention, the court did not
abuse its discretion in ordering that he undergo another sex offender
risk assessment before reapplying for visitation. “Family Court has
the authority to order a sex-offender evaluation in order to determine
[a party]’s proclivities toward such activity” (Matter of Selena L.,
289 AD2d 35, 37), particularly where, as here, “[t]he record
establishes that . . . the court had a well-reasoned basis for
ordering” such an evaluation (Matter of Dylan L., 55 AD3d 1343, 1344).
Although the father claimed that a prior assessment conducted by his
ongoing treatment provider should have been an acceptable substitute
for the court-ordered assessment, the court found that his ongoing
treatment provider was not impartial and thus that the father’s
alleged prior assessment conducted by that treatment provider was
insufficient. Deferring to “the court’s firsthand assessment of the
character and credibility” of the witnesses (Matter of Thayer v
Thayer, 67 AD3d 1358, 1359), we conclude that the court did not abuse
its discretion in ordering the father to undergo another sex offender
risk assessment with an objective evaluator and “ ‘not one chosen by a
party to the proceeding’ ” (Matter of Armstrong v Heilker, 47 AD3d
1104, 1106; see Matter of Michelle A., 140 AD2d 604, 605).




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
