SHAW, BRIAN v. SEALS-OWENS, KATIE MAY

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [1035] CAF 12-01380 PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ. IN THE MATTER OF BRIAN SHAW, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER KATIE MAY SEALS-OWENS AND MICHELLE LEWIS, RESPONDENTS-RESPONDENTS. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR PETITIONER-APPELLANT. LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-RESPONDENT KATIE MAY SEALS-OWENS. WILLIAM J. BARRETT, ATTORNEY FOR THE CHILD, MANLIUS. Appeal from an order of the Family Court, Onondaga County (Michael L. Hanuszczak, J.), entered June 11, 2012 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition seeking visitation with the subject child. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Petitioner appeals from an order dismissing with prejudice his Family Court Act article 6 petition seeking visitation with his daughter. While we agree with petitioner that, under the unique circumstances of this case, Family Court erred in taking judicial notice of the alleged fact that his daughter is a severely abused child under Social Services Law § 384-b (8) (a) (iii) (A), we nevertheless conclude that the court properly dismissed the petition with prejudice. Inasmuch as there is an existing order of protection prohibiting petitioner from having any contact with his daughter until June 22, 2018, the court was without authority to award petitioner visitation (see e.g. Matter of Samantha WW. v Gerald XX., 107 AD3d 1313, 1315-1316 ; Matter of William O. v John A., 84 AD3d 1447, 1448 ; Matter of Balram v Balram, 53 AD3d 808, 809-810 , lv denied 11 NY3d 708 ). Entered: November 8, 2013 Frances E. Cafarell Clerk of the Court