State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 5, 2016 519756
________________________________
In the Matter of ISAIAH CC.,
Appellant,
v
MEMORANDUM AND ORDER
ROSELYN DD.,
Respondent.
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Calendar Date: March 22, 2016
Before: Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.
__________
A.L. Beth O'Connor, Cortland, for appellant.
Thomas H. Kheel, Ithaca, for respondent.
Pamela B. Bleiwas, Ithaca, attorney for the child.
__________
McCarthy, J.
Appeal from an order of the Family Court of Chemung County
(Rich Jr., J.), entered August 26, 2014, which dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, for visitation with the parties' child.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter (born in
2003). In 2014, while incarcerated, the father filed this
petition seeking correspondence and telephonic communication with
the child. Thereafter, Family Court held a fact-finding hearing.
At the close of the father's testimony, the mother moved for a
trial order of dismissal. Family Court granted the motion and
dismissed the father's petition. The father appeals, and we
affirm.
-2- 519756
According to his own testimony, the father has never met
the child, has spoken to her only once in her lifetime and has
never sent her a card, letter or gift. The father's total
efforts to contact the child amount to two telephone calls. At
the time of the child's birth, the father was imprisoned in
Pennsylvania based on a plea deal that resolved charges against
him, including aggravated assault on an unborn child. Although
not convicted of that charge, at the hearing, the father admitted
that he had attacked the mother while she was pregnant with the
child. As a part of a plea deal, an order of protection was
issued against the father in relationship to the child.1 The
father has also been convicted of statutory rape based on
engaging in sexual intercourse with a 15-year-old child. The
father admitted that he has not completed sex offender treatment.
Approximately a year prior to seeking visitation with the child
and in the context of a child support proceeding, the father
disclaimed paternity of the child.
Accordingly, the record contains proof that the father is
an incarcerated, untreated sex offender with a history of
physical and sexual abuse against victims that include children;
he has taken affirmative efforts to deny paternity of the child
and has made few efforts to establish a relationship with her.
Based on this evidence, the presumption in favor of the father's
requested contact was rebutted by substantial proof that the
father has forfeited his right to contact with the child and that
contact would be harmful for the child (see Matter of Owens v
Chamorro, 114 AD3d 1037, 1039-1040 [2014]; Matter of Cole v
Comfort, 63 AD3d 1234, 1235-1236 [2009], lv denied 13 NY3d 706
[2009]; Matter of Rogowski v Rogowski, 251 AD2d 827, 827-828
[1998]). Accordingly, we will not disturb Family Court's order.
The father's remaining contentions are also without merit.
Lahtinen, J.P., Garry, Rose and Mulvey, JJ., concur.
1
That order expired in 2007 and, therefore, cannot explain
the father's lack of efforts to establish a relationship with the
child thereafter.
-3- 519756
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court