IN RE: L.M. (2025)

Order, Family Court, New York County (Pamela Scheininger, J.), entered on or about March 17, 2025, which, after a hearing, dismissed the grandmother's petition seeking an order of visitation with respondent mother's children, unanimously affirmed, without costs.

By consenting to the incorporation of testimony from a family offense fact-finding hearing, petitioner failed to preserve, and instead waived, any argument that the court improperly incorporated the testimony (see Matter of Gabriel J. [Christina I.], 232 A.D.3d 1093, 1098 n. 5, 221 N.Y.S.3d 360 [3d Dept. 2024], lv denied 43 N.Y.3d 901, 2025 WL 793126 [2025]).  Following the incorporation of the testimony, petitioner did not move to re-open the hearing or request to submit any additional evidence.  Accordingly, she did not preserve any argument that the court improperly concluded the proceedings or prevented her from presenting any evidence (see Matter of Gary MM. [Girard MM.], 100 A.D.3d 1206, 1207, 955 N.Y.S.2d 230 [3d Dept. 2012]).  Nor did petitioner request a Lincoln hearing, so any argument that the court abused its discretion by dismissing the petition without one is also unpreserved for our review (see Matter of Francisco A. v. Amarilis V., 198 A.D.3d 405, 406, 156 N.Y.S.3d 5 [1st Dept. 2021];  see generally Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969]).  In any event, there is no indication in the record that the Attorney for the Children was not adequately representing the children's interests or accurately conveying their preferences (see Matter of Paul P. v. Tonisha J., 149 A.D.3d 409, 409, 50 N.Y.S.3d 375 [1st Dept. 2017]).

As Family Court concluded and the parties do not dispute, petitioner established standing to seek grandparent visitation based on the relationship she maintained with the children from their births until approximately April of 2021 (see Domestic Relations Law § 72[1];  Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007]).

The court providently exercised its discretion by dismissing the petition upon its determination that visitation between petitioner and the children was not in the children's best interests (see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991]).  “[T]he issues in the case went beyond the animosity between the parties,” and respondent's “objection to the visits was not solely based on the existing acrimony” (Matter of Paul C.T. [Renee G.-T.], 236 A.D.3d 611, 612, 231 N.Y.S.3d 33 [1st Dept. 2025]).  The court credited respondent's testimony regarding several incidents in 2021 where petitioner's conduct upset respondent and frightened the children, and the court's findings, based on its credibility determinations, “are supported by the record and thus entitled to deference” (Matter of Trina L. v. Michelene M., 227 A.D.3d 472, 474, 211 N.Y.S.3d 38 [1st Dept. 2024]).  By the time of the hearing, petitioner had not seen the children in several years, respondent opposed visitation based on safety concerns for the children, and the children did not wish to have any contact with petitioner (see Matter of E.S., 8 N.Y.3d at 157–158, 831 N.Y.S.2d 96, 863 N.E.2d 100;  Matter of Margot M. v. Chante T., 148 A.D.3d 647, 648, 49 N.Y.S.3d 295 [1st Dept. 2017], lv dismissed 30 N.Y.3d 961, 64 N.Y.S.3d 662, 86 N.E.3d 554 [2017]).