IN RE: BRITISH R. and Another (2019)

Order of disposition and custody, Family Court, Bronx County (Monica D. Shulman, J.), entered on or about January 7, 2019, which, to the extent appealed from as limited by the briefs, upon releasing the children to the father and granting him custody, granted the mother supervised visitation with the children, with conditions, unanimously modified, on the law, to remand to Family Court for further proceedings to determine a supervised visitation schedule, and otherwise affirmed, without costs.

Family Court's determination that supervised visitation by the mother would be in the children's best interest has a sound and substantial basis in the record (see Michael Evan W. v. Pamela Lyn B., 152 A.D.3d 414, 58 N.Y.S.3d 45 [1st Dept. 2017], lv denied 30 N.Y.3d 910, 2018 WL 414743 [2018]). The court considered testimony indicating that the mother is not in the position to be the caregiver of the subject children, including evidence of her aggressive and confrontational behavior with agency staff and the father, and her noncompliance with court orders concerning visitation.

However, given the mother's history of aggressive behavior toward the father and visitation supervisors, it was unlikely that the parties would be able to effectuate appropriate visitation (see Matter of Spencer v. Killoran, 147 A.D.3d 862, 863, 46 N.Y.S.3d 658 [2d Dept. 2017], lv dismissed 29 N.Y.3d 994, 53 N.Y.S.3d 611, 75 N.E.3d 1173 [2017]). Moreover, Family Court's order essentially delegated the court's authority to determine visitation to the father, which it may not do (Matter of Izrael J.[Lindsay F.], 149 A.D.3d 630, 51 N.Y.S.3d 88 [1st Dept. 2017]). Accordingly, the matter should be remanded to the Family Court for further proceedings to establish a visitation plan, including, but not limited to, a specific schedule and identification of an appropriate supervisor or supervisors (id.; Spencer, 147 A.D.3d at 863, 46 N.Y.S.3d 658).

The mother's claim that she was deprived of her fundamental right to counsel by the court's instruction that she not communicate with her attorney about her past or anticipated testimony during breaks in the hearing is unpreserved, given that her counsel was present and available to protest (see People v. Umali, 10 N.Y.3d 417, 423, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009]). We decline the mother's request to take corrective action in the interest of justice with respect to that issue.

We have considered the mother's remaining arguments and find them unavailing.