Matter of Daniel O. (Jaquan O.)

Matter of Daniel O. (Jaquan O.) 2016 NY Slip Op 05443 Decided on July 7, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2016
Mazzarelli, J.P., Friedman, Andrias, Webber, Gesmer, JJ.
1683 1682

[*1]In re Daniel O. and Another, Children Under Eighteen Years of Age, etc., Commissioner of Administration for Children's Services of the City of New York, Petitioner-Appellant,

and

Jaquan O., et al., Respondents-Respondents.

Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellant.

The Bronx Defenders, Bronx (Saul Zipkin of counsel), for Jaquan O., respondent.

Law Office of Elisa Barnes, New York (Elisa Barnes of counsel), for Sylvia F., respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Judith Stern of counsel), attorney for the children.

Orders, Family Court, Bronx County (Ruben A. Martino, J.), entered on or about April 8, 2016, which, to the extent appealed from, granted respondents' motion for unsupervised visitation of the subject children during the pendency of the abuse and neglect proceedings against them, unanimously reversed, on the law and in the exercise of discretion, without costs, and the motion denied.

Family Court's determination lacks a sound and substantial basis in the record, which shows that unsupervised visitation would not be in the children's best interests (see Family Ct Act § 1030[c]; Matter of Frank M. v Donna W., 44 AD3d 495, 495-496 [1st Dept 2007]). The abuse and neglect petitions against respondents, the children's biological parents, are grounded in the life-threatening head injuries and rib fractures sustained by one of the children when he was only three months old and in respondents' exclusive care. Family Court granted unsupervised visitation even though a fact-finding hearing on the petitions had not yet been conducted. Given the serious allegations of abuse committed against the eldest child, it was an improvident exercise of discretion for Family Court, without the benefit of a full fact-finding hearing, to order unsupervised visitation (Matter of Frank M., 44 AD3d at 495; Matter of Bree W. [Jennifer F.], 98 AD3d 522 [2d Dept 2012]). It would be in the children's best interests to continue with supervised visitation pending a full fact-finding hearing and final determination of the petitions (Matter of Bree W., 98 AD3d at 523).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2016

DEPUTY CLERK