In the Matter of A Proceeding for Visitation Under Article 6 of Family Court Act, D.C. v. T.C., 2009 NY Slip Op 52003(U) (N.Y. Fam. Ct. 7/27/2009)

Full title: IN THE MATTER OF A PROCEEDING FOR VISITATION UNDER ARTICLE 6 OF THE FAMILY…

Court: New York Family Court

Date published: Jul 27, 2009

2009 N.Y. Slip Op. 52003 (N.Y. Fam. Ct. 2009)

Opinion

XXXXX

7-27-2009

IN THE MATTER OF A PROCEEDING FOR VISITATION UNDER ARTICLE 6 OF THE FAMILY COURT ACT, D.C., Petitioner, v. T.C., Respondent.

Mindy L. Gress, Esq., Brooklyn, New York, for Petitioner Mother. Rhonda R. Weir, Esq., Brooklyn, New York, for Respondent Father. Rachel Saunders, Esq., Children's Law Center, Brooklyn, New York, Attorney for the Child.

Emily M. Olshansky

The issue before this Court is whether limited visitation between the mother and her now 14-year-old daughter supervised by a social worker would be in the child's best interests. The father opposes the mother's request for visitation. The Attorney for the Child supports it and for the reasons set forth below, the Court grants the petition to the extent that the mother and the subject child, Linda, shall have one visit each month supervised by Diane Hessman, M.S.W., or another mental health professional agreed upon by the parties and the child's attorney.

I. Findings of Fact and Procedural History

D. P. (hereinafter "the mother") and T. C. (hereinafter "the father") were married on June 20, 1987. There were two children born of the marriage, Stewart C., born November 3, 1988, and Linda C., born June 9, 1994.

Shortly after Stewart's birth, the mother began experiencing symptoms of post-partum depression. She cried all the time and did not interact with her son. The mother testified that she knew there was something wrong when she was approximately seven months pregnant with Stewart. She testified that she was severely depressed. She "didn't feel right emotionally" and wanted to sleep a lot. She testified that her symptoms worsened after Stewart was born.¹

1 According to the mother's testimony, from the time Stewart was born until the parties were divorced, she continued to have suicidal thoughts. On one occasion, she locked herself in a bathroom and cut her wrist with a knife.

The father testified that approximately two days after returning home from the hospital, the mother told him that Stewart had spoken to her and told her to "kill him" and that he was "the devil." The father testified that during this time, the mother would pull her hair, talk to herself and scratch herself. As a result, the mother began outpatient treatment at South Beach Psychiatric Center. The mother began seeing a therapist twice each week and was prescribed Prozac and Buspar. Initially, the father participated in the therapy sessions with the mother.

At the time, the parties were living in an apartment with Stewart in the paternal grandparents' home. When the mother began exhibiting symptoms of depression, the father moved to the paternal grandparents' home with Stewart and the paternal grandmother assisted him in caring for the child.

The mother testified that she stopped treatment after about 18 months since she "just didn't want to admit her illness." The father testified that after approximately one year, the mother's condition seemed to stabilize. He testified that she was "calmer" and took "a little bit more interest in Stewart." As a result, the family moved out of the paternal grandparents' home and into their own apartment.

The father testified that in 1990, just prior to Stewart's third birthday, he went to work and left Stewart with the mother since he thought she had been feeling better. The mother, however, testified that she was not feeling well "mentally" at that time. The mother testified that she took Stewart into her bedroom and threw him on the bed. She further testified that she recalled "battling with him" and that, at some point, she stopped, "broke down and cried," and called the father for help.

The father testified that the mother told him that she became angry with Stewart when he made a mistake in reciting his "ABCs" and that she smacked him in his face after she saw "different faces in him." He further testified that she took him into the bedroom and choked him, "boxed his ears" with her hands, and bit him. The father testified that when he arrived at the home, Stewart was lying on the living room floor, screaming. According to the father's testimony, Stewart's ears and face were purple and he had a bite mark on his back and one on his stomach. The father testified that he took Stewart to the pediatrician who called in a report of suspected child maltreatment to the State Central Registry. According to the father's testimony, the Administration for Children's Services (hereinafter "ACS"), thereafter, came to his home on two occasions. The father testified that he subsequently stopped working in order to stay home and care for Stewart and that the mother went to live with the maternal grandmother.²

2 It was around this time that the father noticed delays in Stewart's speech. He was referred for therapy which was eventually interrupted since it was too difficult for the father to manage the mother's illness as well as treatment for Stewart's delays. In 1997, Stewart was diagnosed with moderate expressive and mild receptive language delays, as well as delays in his reading skills. It was recommended that he be placed in the resource room at school and that he receive counseling.

After approximately seven months, the parties resumed living together and moved into a new apartment with Stewart. According to the father's testimony, after they reconciled, the mother's involvement with Stewart was "very, very limited." In addition, the father testified that he and the mother fought over Stewart. According to the father, during their arguments, she hit him and scratched his face, and that she threatened him with a knife. The father testified that ACS became involved with the family again in 1992, when a different pediatrician called in a report after observing a scratch on Stewart's face which he said was caused by the mother. The father testified that ACS remained involved with the family for two or three months after this report, but that they ultimately received a letter from ACS indicating that they "found no negligence."

The subject child, Linda, was born on June 9, 1994. The father testified that the mother was very happy after Linda was born and assisted in caring for her. The mother testified, however, that when Linda was approximately five months old, she again left the marital residence since she was not feeling well and did not want to be around the children. She further testified that for approximately eight months to one year, she resided with a friend and his mother during the week and went home on the weekends to "be their mom and cook and spend time with them."

The parties continued to have marital difficulties and separated in 1996.³ The father eventually filed for divorce. It was around this time that the mother again sought treatment. She went to Coney Island Psychiatric Hospital, where she was hospitalized for approximately three weeks. Thereafter, in October 1996, she returned to South Beach Psychiatric Center and began outpatient treatment with Dr. Manheim, a psychologist, as well as Dr. Davis, a psychiatrist who prescribed her medication. The mother was diagnosed with depression and anxiety as well as borderline personality disorder and was prescribed Prozac and Trilifone.

3 The father asserted that he and the mother separated because the mother was staying out all night and having extra-marital affairs. The mother asserted that she was forced out of the home against her will and that she did not want the marriage to end.

The father testified that at the age of three, Linda still lacked communication skills and that she was developmentally delayed. He testified that, as a result, she began to receive early intervention services and therapeutic pre-school services. She was ultimately diagnosed with organic brain syndrome, pervasive developmental disorder, impulse control disorder and moderate mental retardation with autistic behavior. He testified that she did not speak until she was approximately 11 years old. According to the father's testimony, Linda had a history of unprovoked tantrums and aggressive behavior, particularly when there were changes in her routine. He testified that she took Risperidal and Buspar to control this behavior. The father further testified that Linda was in a special education class and received speech, language and occupational therapy, as well as counseling at school.

The parties were ultimately divorced by judgment of the Supreme Court, Kings County, on February 10, 1997. Pursuant to the terms of that judgment, the father was granted custody of both children and the mother was granted visitation consisting of three weekends each month. The judgment provided that the first two weekends were to take place on Saturday from 10:00 AM to 7:00 PM and on Sunday from 10:00 AM to 7:00 PM. The judgment further provided that the third weekend was to take place from Saturday at 10:00 AM to Sunday at 7:00 PM. The mother was also granted visitation on her own birthday and Mother's Day and the parties alternated major holidays and the children's birthdays.

Thereafter, the mother had three visits with the children. After the third visit, the father stopped the visits since, according to him, Linda came home from the visit "hysterical" and "banging her head against the wall."

On March 18, 1997, the mother filed a violation petition in Family Court, Kings County (V-5921-22/97), alleging that the father was not complying with the visitation provisions of their judgment of divorce. On May 23, 1997, the father filed a petition seeking to suspend visitation (V5921-22/97A), alleging that the mother was irrational and irritable during visits and that the children did not want to visit. On July 30, 1997, Hon. Maureen McLeod issued a temporary order providing for visits for the mother on Sundays from 1:00 PM to 2:00 PM, supervised by the paternal grandmother.⁴ In addition, the Court ordered ACS to conduct a court ordered investigation (hereinafter "COI"). On October 6, 1997, the Court received the COI and ordered a forensic evaluation of the parties.⁵ Thereafter, the matter was administratively adjourned several times until ultimately, on May 4, 1999, on the mother's default, Judge McLeod granted the father's application to suspend visits, and dismissed the mother's petition without prejudice.

4 According to the father's testimony, there were three supervised visits scheduled after the court issued this order. Only two visits took place. He testified that Linda was upset, "screaming, pulling her skin, and pulling her clothes" prior to the third visit and it was, therefore, cancelled.

5 The forensic evaluation by Mark J. Rand, Ph.D., was received by the court on June 30, 1998. Dr. Rand recommended that the father retain custody and that the mother have monthly visits with both children supervised by a mental health professional experienced in supervising families with a history of abuse. He also recommended that the mother enroll in a parent effectiveness training program and continue with outpatient mental health treatment, including periodic medication re-evaluations. Dr. Rand recommended that the length of the visits gradually increase if recommended by the mental health professional supervising the visits. He also recommended that the father and stepmother seek counseling to help reduce the intensity of their bitterness towards the mother and facilitate a more collaborative environment for the children. In addition, he recommended that the matter of visitation be reassessed in one year.

On June 24, 1999, the mother filed an application for judicial action (V5921-22/97-99B), seeking to reinstate visitation. Her application was dismissed on July 20, 1999, when she failed to appear. On April 26, 2000, the mother filed a second application for judicial action (V5921-22/97-00C), again seeking to reinstate visitation. On July 7, 2000, that petition was also dismissed when the mother failed to appear.

On March 30, 2005, the mother filed the instant petition (V5921-22/97-05D), seeking to modify the May 4, 1999 order, which suspended her visits. In her petition, the mother alleged that she had not seen her children since 1997, that the father was denying her access to them, that she loved them very much and missed them and wanted to resume her relationship with them.

On May 9, 2005, both parties appeared, issue was joined and counsel was assigned. In addition, the Children's Law Center was assigned to represent the children and the court ordered a COI. On August 10, 2005, both parties and their counsel appeared before Referee Edward Yuskevich and the court received the COI. The Attorney for the Child reported that the subject child, Stewart, who was then 16 years old, did not wish to visit with the mother and that the subject child, Linda, who was 11 years old, was autistic and non-verbal. Since the matter could not be settled, the Referee adjourned it to October 24, 2005, and referred it to Hon. Paul Grosvenor.

On October 24, 2005, the parties and the Attorney for the Child appeared. The Attorney for the Child indicated that he did not support visits between Stewart and the mother, since Stewart did not want any contact. The Attorney for the Child stated that a social worker from his office would have to meet with Linda before he could take a position regarding visitation between her and the mother. The mother reported that she was doing well and was compliant with treatment. The father reported that he opposed any contact between the mother and the children. The court adjourned the matter to December 13, 2005, and referred it to this Part.

The parties appeared before the undersigned for the first time on March 6, 2006.⁶ The Attorney for the Child reported that Linda, who was then 12 years old, was mildly mentally retarded and in need of a highly structured environment. The mother again reported that she had not seen the children since 1997 and that she was compliant with all of her treatment recommendations. The father again reported that he opposed any contact between Linda and the mother. The matter was adjourned to June 26, 2006, for trial.⁷

6 On December 13, 2005, the matter was administratively adjourned since the father's attorney was unavailable.

7 On June 14, 2006, the father filed a motion seeking a stay of the trial to give him additional time to find an expert to examine the child and her medical records in order to testify at the trial. The motion was adjourned to June 26, 2006, the day the trial was scheduled to begin. On June 26, 2006, the Court denied the father's motion since he already had ample opportunity to retain an expert and the trial began as scheduled. Additionally, on June 26, 2006, the court ordered a forensic evaluation. The father was initially uncooperative with the forensic evaluation. As a result, it was re-ordered on January 2, 2007, and the father was directed to contact Dr. Pologe before the close of business the following day. The Court also directed that during the evaluation, neither party was to discuss to the identity of the mother, disparage the other, or discuss the litigation with Linda.

On December 18, 2006, the Court conducted a conference to consider the mother's request for interim visitation. At the conference, the father indicated that he continued to oppose any contact between the mother and Linda. The Attorney for the Child reported that after having had her social worker meet with Linda, the Children's Law Center⁸ strongly supported supervised visitation. She noted that the mother had been consistently compliant with her mental health treatment and that she was not persuaded by the father's claim that visitation would "traumatize" the child. Ultimately, the Court issued a temporary order of visitation, providing for one visit for the mother and Linda, to be supervised by Diane Hessman, M.S.W., or another social worker agreed upon by the parties.⁹ The supervisor was directed to issue a report on the visit and forward copies to counsel for both parties, the Attorney for the Child and the court-appointed forensic evaluator. The Court also directed that during the session, Linda not be told that it was her mother she was visiting.

8 Although the Children's Law Center represented Linda throughout this proceeding, three different staff attorneys have appeared: John Yacos, Esq., Frederica Bashir, Esq. and Rachel Saunders, Esq.

9 On December 21, 2006, the father moved in the Appellate Division, Second Department for a stay of the Court's December 18, 2006 order. That motion was denied.

On August 15, 2008, Stewart filed a family offense petition, alleging that the mother had been coming to his place of employment, looking at him and following him around the store. Hon. Sarah Krauss issued an ex parte temporary order of protection, directing that the mother stay away from Stewart. On September 16, 2008, Stewart filed a supplemental petition, alleging that the mother had violated the temporary order of protection. According to Stewart, on or about August 17, 2008, after having been served with a copy of the order of protection, the mother came to his place of employment. On October 17, 2008, the mother filed a motion seeking to dismiss Stewart's petition, alleging that it was facially insufficient. On November 5, 2008, Stewart filed a cross-motion, opposing the mother's motion to dismiss the petition and requesting permission to amend the original petition. On March 20, 2009, the parties appeared before the undersigned. The mother's motion to dismiss the petition was denied and Stewart's motion to amend the petition was granted. The parties were referred, with their consent, to Judicial Hearing Officer (hereinafter"J.H.O.") Margaret Cammer for a hearing.

On April 29, 2009, J.H.O. Cammer conducted a hearing. At the hearing, both parties testified. In addition, the mother called her fiancé, Peter V., as her witness.

Stewart testified that he worked as a security guard at a girls' clothing store for approximately two and one-half years. He testified that during one three month period, the mother had come to the store every day that he worked. He testified that her presence in the store made him uncomfortable.

The mother testified that she lived approximately eight blocks from the store and that she had been shopping there for the past 12 years. She testified that she did not know that Stewart worked in the store until she was served with a copy of the order of protection. Mr. V. testified that he had accompanied the mother to the store on several occasions and was with her on at least one occasion when she purchased clothing for herself.

At the conclusion of the hearing, J.H.O. Cammer found that the mother had committed a family offense, specifically stalking in the fourth degree, pursuant to PL § 120.45 (2), based on what she found to be Stewart's credible testimony. Accordingly, she entered a final two-year stay-away order of protection against the mother on Stewart's behalf.¹⁰ There was no finding, nor any allegation, that the mother had attempted to touch, speak with or approach Stewart. With respect to Stewart's assertion that the mother had violated the temporary order of protection by returning to the store on August 17, 2008, the court made no finding.

10 On April 30, 2009, the mother filed a notice of appeal with respect to the J.H.O. Cammer's order dated April 29, 2009, to the Appellate Division, Second Department.

II. The Visitation Hearing

The visitation hearing was conducted over the course of numerous court dates. At the hearing, both parties testified. In addition, the mother's witnesses included Paul Manheim, Ph.D., her treating psychologist, and Diane Hessman, M.S.W., the court-appointed social worker and supervisor of the visitation. The father called Iona Minzberg, Linda's former teacher, Linda Musteti-Oprea, M.D., a psychiatric resident who saw the father and Linda on several occasions, and Carol C., his current wife. The Attorney for the Child called Carolyn Tranes, Linda's former social worker, and Bennett Pologe, Ph.D., the court-appointed forensic psychologist. In addition, numerous reports and other documents were admitted into evidence.¹¹

11 Dr. Manheim's resume was admitted into evidence as Petitioner's Exhibit "1;" metrocards documenting the last time the mother saw Linda were admitted into evidence as Petitioner's Exhibits "2" & "3;" Ms. Hessman's resume was admitted into evidence as Petitioner's Exhibit "4;" reports from Ms. Hessman concerning supervised visits were admitted into evidence as Petitioner's Exhibits "5," "6," and "7;" Linda's school records for the 2005-2006 school year were admitted into evidence as Petitioner's Exhibit "8." In addition, seven photographs of the children were collectively marked for identification but not admitted into evidence as the Attorney for the Child's Exhibit "1-7;" Linda's school records for the 2006-2007 school year were admitted into evidence as the Attorney for the Child's Exhibit "8;" Dr. Pologe's report was admitted into evidence as the Attorney for the Child's Exhibit "9;" Dr. Pologe's resume was admitted into evidence as the Attorney for the Child's Exhibit "10;" a letter from Dr. Pologe to the Court dated November 21, 2006 was admitted into evidence as the Attorney for the Child's Exhibit "11;" and a letter from Dr. Pologe to the Court dated December 27, 2006, was admitted into evidence as the Attorney for the Child's Exhibit "12." In addition, a letter from Dr. Musteti-Oprea, dated February 14, 2008, was admitted into evidence as Respondent's Exhibit "1" and for Linda's hospital records from Maimonides Medical Center were admitted into evidence as Respondent's Exhibit "2." In addition, the Court took judicial notice of all prior orders entered during these proceedings.

Dr. Paul Manheim was called as the mother's first witness. Dr. Manheim was qualified as an expert in clinical psychology, without objection. Dr. Manheim testified that he had been treating the mother at South Beach Psychiatric Center, an outpatient facility, since October 1996, when she voluntarily sought treatment. Dr. Manheim testified that the mother initially presented with symptoms consistent with a diagnosis of major depression and borderline personality disorder. According to Dr. Manheim, borderline personality disorder is characterized by instability. He stated that other symptoms include emotional instability, interpersonal instability and instability in how the individual perceives herself.¹² Dr. Manheim testified that the mother exhibited all of these symptoms when she first started therapy.

12 The mother testified that her understanding of borderline personality disorder is an "instability of one's emotions," as well as difficulty in handling strong emotions like anger. According to her testimony, she fit this description in 1996, but has not fit this description in "roughly the past four to five years."

Dr. Manheim testified that symptoms of depression include sleep disturbance, appetite disturbance, sad mood, lack of energy and negative self-image and that the mother was also exhibiting all of these symptoms when she started therapy. Dr. Manheim testified that when he first met the mother she was clinically depressed and anxious. He testified, however, that she was not a danger to herself or others and that she did not need supervision in the community. He testified that the mother was also treated by Dr. Paul Davis, a psychiatrist, who initially prescribed Prozac and Trilafon.

Dr. Manheim testified that except for a brief period of time in 1998, the mother had been cooperative and had followed all treatment recommendations. Dr. Manheim testified that the mother had always been forthcoming when describing her symptoms. Additionally, according to Dr. Manheim, the mother had voluntarily participated in several groups offered by his clinic, including a trauma safety group, a communication skills group, an emotion regulation group, and a mindfulness group. Dr. Manheim testified that the mother attended these groups consistently and participated appropriately. Dr. Manheim testified that the mother had benefited from these groups and the other components of her ongoing treatment. He testified that he had seen changes in the mother since 1996. He testified that although she was still taking medication, her symptoms of depression were in remission. He testified that he initially saw her on a weekly basis but that over the years it had been tapered to once every two or three weeks.

Dr. Manheim testified that the "dominant theme" throughout the mother's years of therapy was the extent to which she missed her children and wanted to see them. According to Dr. Manheim, the mother acknowledged that she had been violent towards her son. He testified that she had many regrets and that she felt terrible about what she had done.

Dr. Manheim also testified that the mother reported that she had engaged in a sexual relationship with the father from 1999 until 2002, in an effort to see her children.¹³ According to the mother, she did not get to visit with her children and only received photographs of them.¹⁴ Dr. Manheim also testified that, according to the mother, on at least one occasion, the father agreed to allow her to wait outside Stewart's school in order to catch "a glimpse of him," but that she had made no attempt to speak with him. According to Dr. Manheim, after three unsuccessful years of trying to work out a visitation arrangement with the father, the mother decided to go to court and file the petition, which is the subject of the instant litigation.

13 The mother testified that from 1999 until 2002 she engaged in a sexual relationship with the father with the hope that he would eventually allow her to see the children. She testified that it began after she contacted him in 1999, to serve him with the visitation petition she had filed. When she realized that he was willing to speak with her, she decided not to serve him. The affair started several weeks later and continued for approximately three years. According to the mother, she and the father met at her house or went to empty apartments that were accessible to him since he was a real estate broker. According to the mother, the father promised her that if she stayed out of court she would "get more from him," which is why she filed several petitions and then never appeared in court. According to the mother, during this period, he allowed her to see Linda twice from a distance as she was getting on a school bus, once on June 23, 2000 and once on June 27, 2001. After three years, she ended the relationship and told his wife, since she was "fed up" with not "having anything established with regards to her objective of seeing her children." The father completely denied the affair and denied that he ever agreed to allow the mother to see Linda or Stewart.

14 Those photographs were collectively marked for identification as Attorney for the Child's Exhibit "1-7."

Diane Hessman, M.S.W., also testified on behalf of the mother and was qualified as an expert in social work, without objection. She testified regarding the first three visits that she supervised, which took place on January 3, 2007, April 27, 2007, and June 5, 2007.¹⁵

15 During the pendency of the hearing, the Court ordered a total of approximately eightsupervised visits with Diane Hessman, M.S.W.

The first visit took place on January 3, 2007 and lasted approximately 40 minutes. Ms. Hessman reported that she had reviewed numerous documents and spoke to Linda's pediatrician's staff, as well as both parents in preparation for the visit. According to Ms. Hessman, the mother arrived early for the visit and informed Ms. Hessman that the "visit meant a lot to her." Ms. Hessman reported that the mother told her that the father and his wife had prevented her from visiting in the past. The mother also told Ms. Hessman that although she had suffered from depression in the past, she had "turned her life and outlook around over the years and feels very positive about her life at this time."

Ms. Hessman reported that the father and Linda arrived on time for the visit. According to Ms. Hessman, when they arrived, the mother was waiting in another room and the parties did not see one another. Ms. Hessman reported that prior to the actual visit, the father informed her that Linda had very "high maintenance needs" and a history of acting out. In addition, Ms. Hessman reported that the father was concerned that the visit would cause Linda to regress. The father also advised Ms. Hessman that there was a court order directing that Linda not be told that she was visiting her mother. According to Ms. Hessman, she advised the mother of this and throughout the visit the mother referred to herself as "D."

Ms. Hessman reported that the mother was "quite appropriate in her interactions with the child," and that she attempted to engage the child and make her feel comfortable. Ms. Hessman testified that she was impressed by the mother's ability to control her emotions and put Linda's "very special needs first above her own, considering how long it had been since the mother had seen Linda and given how excited she was to see her." Ms. Hessman testified that even after the visit, the mother was still in control of her emotions and was able to discuss her feelings. Ms. Hessman described the mother as very "welcoming" and very "benign." Although Linda did not speak during the visit, she communicated nonverbally. According to Ms. Hessman, Linda smiled a lot, held up fingers in answers to questions and nodded her head. Ms. Hessman suggested they play a game and Linda indicated that she wanted to play cards. She noted that Linda seemed to "really smile and relax" while they were playing. Further, Ms. Hessman testified that Linda "seemed interested" in the mother. According to Ms. Hessman, the mother made no attempt to pressure Linda to speak and kept the interaction with the child going in a way that did not seem to overwhelm her.

At the end of the visit, Ms. Hessman asked Linda if she would like to come back and see D. again. She responded in the affirmative. When Ms. Hessman asked Linda if she felt "okay" shaking the mother's hand, she indicated that she did and then hugged the mother.

Ms. Hessman testified that based on the documents she had reviewed concerning Linda's history and the information provided by the father, it seemed that Linda had stabilized significantly and made "a lot of gains." She testified that she had actually expected to have to intervene "a lot more." She also testified that during the visit Linda did not ask or attempt to leave; nor, did she ask to speak with the father or inquire regarding his whereabouts.

The second visit took place on April 27, 2007. Again, the mother arrived early and was waiting in another room when the father and Linda arrived. Ms. Hessman noted that as soon as Linda arrived, she said that she did not want to go to the "visiting doctor." She said that she was "going to school and home and that's it." Ms. Hessman also noted that Linda made a fist and hit her other hand with it while she said this. Ms. Hessman informed Linda that she was a social worker, not a doctor. She reminded Linda that she had been to the office before. She asked Linda if she could speak with her privately and Linda agreed. According to Ms. Hessman, when she informed Linda that D. was in the next room her expression seemed to "soften" and she indicated that she remembered D. Linda ultimately agreed to visit with D. for a little while.¹⁶

16 Ms. Hessman noted that when she informed the father that Linda had agreed to the visit, he did not "say supportive words to the child" and told Ms. Hessman that she should have spoken with the staff at the child's school.

During the visit, Ms. Hessman noted that Linda did not have the same smiling demeanor that she had during the last visit and that she repeatedly said she was only "supposed to go to school and home." When asked, Linda acknowledged that her mother and father said it was "not okay to visit with D." and that her father said it was "not okay to play with D." She then said that she was not coming back. According to Ms. Hessman, Linda did not want to play with any of the toys in her office or with the mother. Ms. Hessman noted that throughout the visit, the mother was positive and gentle with Linda and was successful in engaging her at certain points. Ms. Hessman ended the visit after approximately 20 minutes, when Linda finally said that she wanted to go home.¹⁷

17 Ms. Hessman noted that Linda spoke throughout the duration of the visit, that her speech was clear and that she seemed to understand what was being said to her. Ms. Hessman found it "curious" that Linda would make such blanket statements about not wanting to visit since the last visit went so well and since Linda had no contact with the mother for three months. She also noted that Linda's facial expression sometimes did not match her strong words.

The third visit took place on June 5, 2007. According to Ms. Hessman, when Linda arrived she again told Ms. Hessman that she did not want to visit. Ms. Hessman reported that she informed Linda that D. was in another room waiting and suggested that she visit for "a little while, like 15 or 20 minutes." Ms. Hessman reported that she asked Linda if she knew how to tell time. She showed Linda her watch and pointed to the time when the visit would end. Linda seemed to understand what Ms. Hessman said and ultimately agreed to visit.

Ms. Hessman reported that Linda entered the visiting room with some "trepidation or shyness" but did not "seem to be adamantly opposed to sitting on the opposite end of a small couch from the mother." According to Ms. Hessman, the mother worked very hard at engaging Linda and was enthusiastic and interested when Linda updated her about her school activities. The mother brought gifts for Linda since her 13th birthday was on June 9, 2007, four days after the visit.¹⁸ Ms. Hessman reported that initially Linda did not want to open the gifts and agreed only to open the card, which she was able to read almost entirely by herself.¹⁹ According to Ms. Hessman, Linda eventually agreed to open the gifts, which the mother had wrapped in paper of Linda's favorite colors. Ms. Hessman stated that Linda enjoyed playing with the gifts. Ms. Hessman reported, however, that Linda declined to take them home indicating that if she did, she would have to "play alone." According to Ms. Hessman, the mother was disappointed that Linda did not take the gifts, but did not insist that she do so. Ms. Hessman reported that the mother remained appropriate and upbeat in her attitude and was "quite open to suggestions regarding how to engage the child before and after visitation." In addition, Ms. Hessman noted that although Linda initially said that she did not want to see the mother, she did not say it "as strongly or as many times as she had at the last visit." Ms. Hessman also noted that Linda seemed "able to have more of a conversation with the mother and seemed pleased the mother was supportive of her entering a new developmental stage in her life."

18 Ms. Hessman noted that the mother contacted her prior to the visit to inform her that she would like to bring gifts for Linda since her birthday was approaching. According to Ms. Hessman, the mother asked for her input regarding how to appropriately handle this, since Linda had been reluctant to take anything from her during the last visit. Ms. Hessman noted that the mother indicated that she did not want to pressure Linda but that she wanted Linda to know that she remembered it was her birthday. Ms. Hessman suggested that the mother bring the gifts and offer them to Linda but not pressure her into taking them.

19 Ms. Hessman noted that she was particularly surprised by Linda's ability to read the card on her own and tell time, since the father had presented the child as "much more low[er] functioning."

Ms. Hessman recommended that the mother and Linda continue to have supervised visits. Ms. Hessman described the mother as "hopeful," "poised," "cordial," and "extremely easy to work with." She noted that the mother behaved appropriately during all of the visits. She testified that during the visits, Linda never acted out, never had a tantrum, and never exhibited any of the other behavior described by the father. Ms. Hessman suggested that if Linda felt torn about the visits because of her loyalty to the father, someone else besides the father or the stepmother should bring Linda to the visits.

The Attorney for the Child called Carolyn Tranes, Linda's former social worker, as her witness. Ms. Tranes testified that she had an M.S.W. and that she had been employed as a social worker by the Board of Education for five years, working with "handicapped children." She testified that she was Linda's social worker from September 2006 to August 2008, when Linda attended P771K. She testified that she met with Linda on a weekly basis for 30-minute sessions. Ms. Tranes described Linda as "a very sweet, shy girl" who reacted "cautiously" to her when they first met.

Ms. Tranes testified that she initially spoke with Linda about how she felt about her new school, her teacher and her peers. She testified that Linda immediately "took to" her teacher. According to Ms. Tranes, as the school year progressed, Linda became less shy, more comfortable, more playful, and that she took more initiative. Ms. Tranes testified that during Linda's second school year, she was much more confident. She seemed to mature. She participated more in school activities, including starring as the mermaid in "The Little Mermaid," the school play. Ms. Tranes also testified that she observed Linda to be very helpful and playful with her peers.

Ms. Tranes testified that during the two years she worked with Linda, she made "great strides" in terms of her ability to get along with her classmates, feel good about herself, participate in activities and comply with school rules. Ms. Tranes testified that towards the end of her second school year, she spoke with Linda, since she was about to change schools. Ms. Tranes thought Linda might be upset about this, since she observed that Linda was struggling and had become less social. According to Ms. Tranes, Linda was able to express that she was very upset about changing schools, since she was very close with her teacher. Ms. Tranes suggested that Linda write letters to keep in touch with her teacher.

Ms. Tranes testified that Linda never mentioned the mother and that she never met the mother. She testified that she did meet with the father on numerous occasions when he came to the school for conferences or performances. According to Ms. Tranes, the father informed her that Linda would be having supervised visits with the mother and that he was very concerned about it. Ms. Tranes testified that the father was concerned about the mother's psychological well-being and the effect the visits would have on Linda, since it would disrupt her schedule.

The father called Linda's former teacher, Iona Minzberg, as his first witness. Ms. Minzberg was Linda's teacher for the 2006-2007 and 2007-2008 school years. Ms. Minzberg testified that Linda was one of 12 students in her class. According to Ms. Minzberg, Linda had perfect attendance except for being late several times due to doctors' appointments. Ms. Minzberg described Linda as a "pleasant child" who did not have many behavioral problems, but who needed a lot of direction. Ms. Minzberg testified that when she first met Linda, she was "shy" and "very quiet," and preferred to be alone. Ms. Minzberg testified that it was a new school for Linda and that it was an especially big transition for her since she had gone from elementary school to junior high school. Ms. Minzberg testified that Linda gradually started to speak and eventually adjusted to her new school.

Ms. Minzberg testified that her students' days were highly structured and that they knew each day what they would be doing at any particular time. According to Ms. Minzberg's testimony, Linda was capable of following simple instructions, although she had difficulty following more complicated directions. She further testified that she needed to be very specific with Linda if she modified her lessons in any way.

Ms. Minzberg testified that the father told her that Linda was having visits with her mother. She testified that Linda spoke with her about the visits on a few occasions. According to Ms. Minzberg's testimony, Linda indicated that she had some visits with "two women," that she did not really know who they were and that they "asked her a lot of questions." Ms. Minzberg also testified that Linda told her that she did not want to go on these visits and that she preferred to be in school.

In addition, the father called Dr. Musteti-Oprea, a psychiatric resident, who saw the father and Linda from July 1, 2007 until June 30, 2008, as his witness. Dr. Musteti-Oprea testified that, at that time, she worked at the Developmental Center at Maimonides Hospital. According to Dr. Musteti-Oprea, the Developmental Center deals with patients who are mentally retarded and who have developmental problems. Dr. Musteti-Oprea testified that Linda was initially referred to the Center on January 31, 2007, for a psychiatric evaluation. The doctor testified that, according to Linda's chart, she was brought to the hospital by her family since she was exhibiting aggressive, repetitive, and self-injurious behavior and experiencing auditory hallucinations. She testified that Linda was diagnosed with Pervasive Developmental Disorder, Autistic Type and Moderate Mental Retardation. According Dr. Musteti-Oprea, the symptoms of Pervasive Developmental Disorder include delayed development of social skills, communication skills, language, and behavior. In addition, she testified that Pervasive Developmental Disorder is characterized by"resistance to any kind of change."

Dr. Musteti-Oprea testified that Linda was prescribed psychiatric medication, including Risperadol and Buspar, and that she saw Linda for medication management. She testified that she saw Linda and her father approximately six times, for about 15 minutes each time and that she spoke with the father on two additional occasions. She further testified that she never spoke with Linda alone. She testified that during the sessions, the father would do the majority of the talking and that Linda would communicate by answering "yes" or "no" and would not use complete sentences. According to Dr. Musteti-Oprea, Linda generally had a flat affect and smiled only if she was praised. Dr. Musteti-Oprea testified that Linda never exhibited any aggressive or self-injurious behavior in her presence. Dr. Musteti-Oprea testified that Linda's prognosis was "guarded," and she would probably need guidance, supervision and assistance for the rest of her life, "especially when she's under stress."

Dr. Musteti-Oprea testified that Linda spoke about a woman named "Carol," who she referred to as her mother. The doctor said that Linda once mentioned a woman named "D." According to Dr. Musteti-Opera, Linda mentioned that she had a visit with "D." and that "D. drowns people." Dr. Musteti-Oprea testified that the father informed her that Linda was visiting her mother as a result of a court order and that he was concerned about the visits. She also testified that Linda described the visits as involving "too many questions."

Dr. Musteti-Oprea testified that she never met the mother and never observed Linda with her mother. She testified that the father had reported that Linda did not know that D. C. was her biological mother. According to the father, Linda did not know the difference. She also testified that she did not know whether Linda had any recollection of the mother from when she was younger. She testified that she never spoke with any of Linda's teachers or her pediatrician and that she did not read any of the reports written by Ms. Hessman or Dr. Pologe. Dr. Musteti-Oprea testified that she had never spoken with anyone besides the father regarding Linda or Linda's behavior. The only documents she reviewed were "some school records" and an "old evaluation" that were part of Linda's chart. Dr. Musteti-Oprea also testified that she did not know whether Linda could read. She testified that her decision to continue Linda's medication was based on what she was told by the father and Linda.

Dr. Musteti-Oprea acknowledged that when she first began treating Linda, the child "accepted" the sessions and did not de-compensate, even though the father had reported that her behavioral problems were associated with change. Dr. Mustei-Oprea also acknowledged that she wrote a letter to the father's attorney indicating that it was in Linda's best interests not to participate in the court hearing to "avoid further deterioration of her behavior" (Respondent's Exhibit "1" in evidence). Dr. Musteti-Oprea testified that she wrote the letter after having seen Linda for only two sessions, because Linda told her that she was not comfortable going to the visits, and that during the visits there were "too many questions."

The father's wife, Carol C., also testified on the father's behalf. Ms. C. testified that she met the father in 1993 and that they were married in 1997. She testified that she provided for all of Linda's needs, including nurturing her, feeding her, clothing her, playing with her, and taking her to doctors. In addition, she testified that she was involved with "her school, her education and all-around well-being." She testified that Linda referred to her as "mommy." According to Ms. C., after Linda visited with her mother, her behavior was very "agitated." She testified that after the visits Linda hurt herself, scratched herself, pulled her hair, talked to an imaginary friend, cursed, grunted, and went "into a mode that she normally wouldn't when she's not taken out of her setting."

Additionally, each party testified on their own behalf. The mother testified that she was very "sad" and "brokenhearted" that she had not seen her children and claimed that she attempted to keep in touch with them through the years by sending cards, gifts, and Easter baskets through her mother-in-law, with whom she had a very good relationship. According to the mother's testimony, she understood that Linda was autistic and had read books and researched the topic in an effort to learn more about her daughter's condition. She further testified that she believed that she was mentally capable of visiting with Linda and was willing to do whatever was necessary to spend time with her daughter, including speaking to a professional about how to deal with her special needs. In addition, she testified that she was much better at handling her own emotions than she was 10 years earlier.

The father testified that he adamantly opposed any contact between Linda and the mother, including supervised visitation. In his view, the mother had abandoned the children, they did not know her, and she should not be a part of their lives. He testified that Linda believed that her stepmother was her mother. He acknowledged that he never told the child the truth since she is "retarded," and "doesn't understand it." He further testified that Linda's days were very structured and that anytime her routine was disrupted she acted out and he and his family had to deal with it. Specifically, he testified that any time there was a visit, it created a "major disturbance in his home," and that Linda came home screaming, yelling and banging her head against the wall.

III. The Forensic Evaluation

Dr. Bennett Pologe conducted the forensic evaluation and also testified at the trial as a witness for the Child's Attorney. He was qualified as an expert in clinical psychology, without objection. Dr. Pologe interviewed each parent, as well as Linda, and observed her interaction with each parent on one occasion. In addition, he conducted interviews with collateral sources including Dr. Manheim, Joseph N., the mother's brother, Mark L., the mother's friend and roommate, Doreen C., the father's sister, and Mike L., a friend of the father. He also reviewed documentation concerning the parties' history including the mother's petition, Linda's medical and educational records, court orders, reports from Ms. Hessman and reports from ACS.

A. The Mother

The mother was born on July 18, 1963. She is a high school graduate who worked for approximately five years after graduating. After her marriage to the father ended in 1997, she moved in with her family. After that she lived with a boyfriend, Mike L. At the time of the evaluation, she continued to reside with Mr. L., although their romantic relationship had ended several years earlier. In addition, her brother resided in the home. She was engaged to be married to Peter V., whom she met in 1999.

The mother acknowledged having a psychiatric history, which at times left her too anxious to function as a parent. She also acknowledged that she was voluntarily hospitalized in 1996 for depression. She reported that she was taking antidepressants on a daily basis and a tranquilizer on an "as needed basis."

She also acknowledged that in 1991, she hit Stewart, "real bad." She reported that, at that time, she was struggling with depression. She asserted that she "had to leave the kids" with the father since she "wasn't well."

According to the mother, following the parties' separation, she initially visited without incident. She reported, however, that after several months, the father began denying her visitation. In 1997, pursuant to the judgment of divorce, the mother was granted court-ordered visitation. Nevertheless, the mother reported that she was soon told by the paternal grandmother that the father planned to discontinue visits, alleging that Stewart was upset by them. The mother acknowledged that during the early visits with Stewart, she was "unstable" and probably "overwhelmed him." She praised the father for keeping Stewart "fed and well-cared for."

According to Dr. Pologe, the mother also reported, that from 1999 until 2001, the parties engaged in a sexual relationship. According to her, the father "strung her along for years," asking her to "avoid court" and keep his "wife out of it," always promising her visitation but never allowing it. She reported that he never gave the children the gifts she bought for them, saying that he did not want to upset them. The mother reported that in 2001, she told the father's wife about the affair.

Dr. Pologe reported that the mother handled the evaluation remarkably well given her psychiatric history. Dr. Pologe noted that his interviews were "demanding" and that the mother was able to adjust to his "interruptions" and his "pressuring her for clear answers or to move on to another topic." Dr Pologe further noted that many parents he had interviewed, who did not have the mother's psychiatric history, "showed less ability to handle the stress of the evaluation." In his opinion, this supported her contention that she had successfully obtained treatment and "learned to adjust to her emotional difficulties." According to Dr. Pologe, the mother "displayed this improved insight and self-control quite admirably" even when observed with Linda.

Dr. Pologe's observations of the mother with Linda were quite similar to those of Ms. Hessman. He testified that the mother was "gentle, not at all intimidating, tense, agitated, intrusive, or in any way overwhelming to her shy child." Dr. Pologe, like Ms. Hessman, noted that while Linda remained nonverbal, she did respond "in all other ways to her mother." According to Dr. Pologe, the mother was not anxious or frustrated by Linda's lack of verbal communication and did a "wonderful job" of engaging Linda and encouraging the signs of spontaneous interest that Linda exhibited. Dr. Pologe noted that he had "rarely seen a parent in a forensic evaluation respond so gracefully and productively to an uncommunicative child."

Dr. Pologe noted that Linda responded positively to her mother and that her smiles gradually increased, her shyness eased and that she gave her mother the "thumbs-up" sign in response to certain questions. Dr. Pologe reported that eventually the mother and Linda were drawing together and elaborating on their creations. According to Dr. Pologe, the mother asked to keep one of Linda's drawings and Linda gladly gave her one. At the end of the visit, according to Dr. Pologe, the mother asked for a hug, which Linda "easily granted."

B. The Father

The father was born on September 30, 1962. He is a high school graduate who previously worked as a machinist and for a mailing company. He stopped working in 1991 for several years in order to care for the children. In 1996, he obtained his real estate broker's license and started his own realty business. Following his separation from the mother, he married Carol C. in 1997. He reported that he resided with his wife and their eight-year-old daughter, Linda, Stewart, and his wife's three teenaged children. He reported that both Linda and Stewart referred to his wife as their mother.

Dr. Pologe reported that, according to the father, the children were traumatized by the mother. He opposed any contact between them and the mother. The father reported that the mother did not just hit Stewart once, but that she hit him on numerous occasions. According to Dr. Pologe, the father described the mother as "much more out of control and inappropriate" than she claimed to have been.

The father reported that after they were divorced and he had remarried, the mother came to his home, threatened legal action, and told his wife that they were having an affair, which he denied. According to the father, the mother then disappeared for two years. She eventually began calling him, according to him "100 times in a month." The father reported that after 2003, the mother disappeared again for another two years until she filed the instant petition in 2005, seeking visitation. He claimed that she had made no effort to keep in touch with the children. She never sent birthday or holiday cards and never called them.

C. The Child

Dr. Pologe reported that the father described Linda as "quite fragile," exhibiting an autistic child's need for consistency and inability to tolerate change. As an example, the father reported that if one of Linda's teachers was absent, Linda asked where that teacher was and commented on the teacher's absence long after the day was over. In addition, the father reported that Linda got very disturbed if her bus was late and would refuse to enter the car by a different door than usual. The father indicated that Linda had pulled at herself and scratched her skin, causing injuries. Dr. Pologe also reported that according to the father, Linda was very attached to his wife and even believed that she was "in Carol's stomach."

According to Dr. Pologe, Linda was responsive to her father during the visit, "making good eye contact," and was not afraid or uncomfortable with him.²⁰ Dr. Pologe reported, however, that the father was "rather aloof" and "disengaged" when observed with Linda, which he found "odd" given the importance of the visit to the litigation.²¹ Further, Dr. Pologe reported that there was a "quality of campaigning" about the father, in that he described the mother as out of control, an awful wife, and an awful mother, yet he stayed with her for approximately 10 years, even after she was abusive to Stewart. Dr. Pologe reported that he considered the father's presentation "suspect." He stated that he was always suspicious when one parent presented themselves as a "saint" and the other as a "monster." He noted that this became evident during his second observation of the father and Linda when he and his wife brought Linda for a session with the mother. According to Dr. Pologe, as soon as they arrived, the father immediately began complaining that the mother had violated the order directing that she not refer to herself as Linda's mother in the child's presence. When Dr. Pologe attempted to speak to the father and his wife about this, Ms. C. was "pointedly unresponsive." She ignored him, and then answered with "considerable hostility." Dr. Pologe noted that the tension in the room was "palpable and extreme" and that it all happened in front of Linda.²² In Dr. Pologe's opinion, even if the mother referred to herself as Linda's mother in her presence, the father and his wife's behavior was harmful to Linda, who the father insisted was particularly delicate. Dr. Pologe noted that this behavior was destructive in the way that the father claimed the mother's contact to be.

20 Dr. Pologe noted, however, that Linda was more involved with the mother during her visit, which he attributed to the fact that either the mother was much more of a novelty in her life or the mother's greater efforts to engage Linda during the visits.

21 At the trial, Dr. Pologe elaborated on what he meant when he described the father as "rather aloof" with Linda. He testified that the father was not as engaged in playing and interacting with her as the mother was. Dr. Pologe further testified that, in his opinion, this was "within the realm of normal" since he lived with her and saw her regularly, as opposed to the mother who did not see Linda often and who might, therefore, be much more "energetic" in her desire to play with Linda.

22 At trial, the father denied that any of this took place in Dr. Pologe's office.

Dr. Pologe described Linda as shy and nonverbal. He noted, however, that she did not seem to become anxious in response to any of his requests and that she separated easily from her parents to speak with him alone. He indicated that although she was nonverbal, she smiled and responded to his instructions and questions by answering with a "thumbs up" sign, holding up fingers in response to "how many" or writing words to answer his questions. He noted, however, that her focus and comprehension were very limited and that she did not answer questions reliably. He also noted that she enjoyed pleasing those around her and enjoyed showing off her academic skills. He testified that she was more interested in writing words for him than in drawing. Dr. Pologe noted that there were no signs of autism in Linda's play or interaction. He reported that Linda tolerated change well, responded easily to his instructions, engaged in social interaction, and sat calmly with excellent eye contact. He also noted that she did not engage in any random, agitated or non-purposeful behavior.

D. The Minnesota Multiphasic Personality Inventory-2

As part of the forensic evaluation, Dr. Pologe administered a psychological test to both the mother and the father, known as the Minnesota Multiphasic Personality Inventory-2 (hereinafter "MMPI-2").²³ Dr. Pologe described this test as a personality inventory, which compared the response patterns of a subject with those of known psychiatric populations. Dr. Pologe indicated that it is most useful in assessing problems in a person's functioning and less useful in assessing strengths.

23 Dr. Pologe noted that the results of psychological assessments should not be relied on to reach conclusions and that they should only be used to "generate hypotheses about the individual that must then be validated through other sources." In addition, Dr. Pologe indicated that, as with almost any other finding in a forensic evaluation, no single piece of data is a determining factor and that all findings must be supported by at least two sources.

Dr. Pologe reported that there was "virtually no defensiveness" seen in the mother's test profile. According to Dr. Pologe, the mother showed none of the "evasiveness or denial usually seen in child custody litigants." Most noteworthy, however, was that "no problem areas were seen," which, in his opinion, "strongly supports the observation and her own report that she is under much better control and now tolerates emotional stress to a much greater degree than in the past."²⁴

24 At the trial, Dr. Pologe testified that most people try to present themselves in the "best possible light," when taking a test like the MMPI-2, especially when it is part of a court-ordered evaluation. He testified that most people try to minimize their problems and maximize their strengths. He testified that the mother did not do any of this. He testified that, according to the test, she was "very straight-forward in her responding."

The father's profile, however, showed much more of the "defensiveness" and "evasiveness" usually seen in child custody litigants, in that he was very reluctant to acknowledge even minor flaws to which most people admit. Further, his overall interpersonal skills and general daily functioning were seen as "worse than that of the mother" and his awareness of the effect of his behavior on others was seen as much more "uneven" than hers.

E. Recommendations

Dr. Pologe found no sign that supervised visitation between the mother and Linda would be harmful to the child. In his view, even if the father's objections to the mother visiting were valid in the past, they are now "anachronistic." In his opinion, the mother had modified her behavior and improved her coping and interpersonal skills. Dr. Pologe testified that the mother displayed the behavior of a suitable parent, certainly sufficient to allow limited, supervised contact. In Dr. Pologe's opinion, the mother functioned "quite admirably" with Linda during his evaluation and Linda responded well to the mother.

In addition, Dr. Pologe concluded that the father and his wife were causing more of the tension in Linda than anything the mother was doing. He specifically reported that they behaved "angrily, with great tension and disgust" in Linda's presence as he tried to speak to them. In his opinion, this behavior created the "very anxiety, stress, confusion, and even regression" in Linda that they asserted the visits would cause. Further, Dr. Pologe testified that, according to the father, Linda was prescribed medication because she "tends to have tantrums" when there were changes in her routines including, for example, visiting with the mother. Dr. Pologe testified, however, that tantrums in a child with Linda's problems could be caused by many things and triggered by "almost anything." He also testified that keeping a child free from tantrums "is not the only goal in raising a child," that "people only grow when they are subjected to a little stress" and that it is important that Linda be "exposed to life" and not just be "sheltered totally."

Finally, Dr. Pologe noted that the recommendations made by the previous forensic evaluator, Dr. Rand, were still relevant. Dr. Pologe specifically mentioned Dr. Rand's recommendations that the mother's visits be contingent upon her compliance with treatment recommendations, that the visits be supervised by a mental health professional, that the frequency and duration of the visits be subject to modification, and that the father and his wife seek counseling to help reduce their bitterness towards the mother in order to facilitate a more collaborative environment for the children. In addition, Dr. Pologe recommended that the mental health professional who supervised the visits be consulted about when and how Linda should be told that "D." is her mother. Dr. Pologe reported that "at present, there is no psychological justification to broach this subject."

III. Conclusions of Law

In determining issues of visitation, the most important factor for the court to consider is the best interests of the child. In evaluating best interests, the court must review the totality of the circumstances (Eschbach v Eschbach, 56 NY2d 167 [1982]; Mauter v Mauter, 309 AD2d 737 [2d Dept 2003]; Thomas v Thomas, 277 AD2d 935 [4th Dept 2000]). Generally, there is a presumption that visitation between a child and the non-custodial parent is in the child's best interests (Buffin v Quida, 263 AD2d 962 [4th Dept 1999]; Donald C. v Michelle T., 254 AD2d 124 [1st Dept 1998]). Further, the natural right of visitation jointly enjoyed by the non-custodial parent and the child is more precious than any property right (Levande v Levande, 308 AD2d 450 [2d Dept 2003]; Resnick v Zoldan, 134 AD2d 246, 247 [2d Dept 1987]; Biamby v Biamby, 114 AD2d 830 [2d Dept 1985]). Denial of this right is so drastic that it must be based on evidence that visitation would be detrimental to the welfare of the child (Kachelhofer v Wasiak, 10 AD3d 366 [2d Dept 2004]; Vanderhoff v Vanderhoff, 207 AD2d 494 [2d Dept 1994]; Janousek v Janousek, 108 AD2d 782 [2d Dept 1985]; Bubbins v Bubbins, 136 AD2d 672 [2d Dept 1988]; Eric L. v Dorothy L., 130 AD2d 660 [2d Dept 1987]).

Absent unusual circumstances, where visitation would be detrimental to the child's well-being, some form of visitation with the non-custodial parent is generally appropriate (see Cervera v Bressler, 50 AD3d 837 [2d Dept 2008]; Nancy M. v Brian M., 227 AD2d 404 [2d Dept 1996]; Zafran v Zafran, 28 AD3d 753 [2d Dept 2006]; Twersky v Twersky, 103 AD2d 775 [2d Dept 1984]). Denial of visitation arises in situations when there is a specific finding that the exercise of the right is inimical to the welfare of the child (Janousek v Janousek, 108 AD2d 782 [2d Dept 1985] [non-custodial parent's quick temper, obnoxious and immature manner, threats to kidnap the child and hostility to the custodial parent cannot be relied on to deny visitation, unless there is a specific finding that the parent's conduct would be detrimental to the child's welfare]; Goldring v Goldring, 73 AD2d 955 [2d Dept 1980] [visitation with the non-custodial parent suspended where he was emotionally unstable and the family was terrified of him]; Vann v Vann, 205 AD2d 897 [3d Dept 1994] [visitation terminated where the parent was incarcerated after being convicted of murder and the oldest child testified that he was not a part of her life, that she did not want to see him and that she experienced nightmares after learning that he was in prison]; In re Dyandria D., 304 AD2d 419 [1st Dept 2003] [visitation terminated where the parent kidnapped the child, declared her intention not to return her, and publicized the matter by disseminating materials featuring the child, in violation of court orders]; Zirkind v Zirkind, 218 AD2d 745 [2d Dept 1995] [visitation denied based on the parent's verbal and physical abusiveness and threats to abduct the children and take them out of the country]; Zafran v Zafran, 28 AD3d 753 [2d Dept 2006] [non-custodial parent's refusal to submit to a psychiatric evaluation and cooperate with a court plan to reinstate unsupervised visitation did not warrant suspension of visitation absent a finding that the parent's conduct negatively impacted on the child]). Further, less drastic remedies such as supervised visitation must be explored before completely depriving a non-custodial parent of visitation rights and it is within the sound discretion of the court to determine whether visitation should be supervised (Cervera v Bressler, 50 AD3d 837 [2d Dept 2008]).

The Court has considered the testimony of the witnesses and the documentary evidence adduced during this protracted proceeding and finds that supervised visitation between Linda and her mother would be in the child's best interests. The abuse of Stewart occurred more than 15 years ago. The mother has taken responsibility for her actions and expressed extreme remorse. Approximately 13 years ago, she voluntarily sought help and started to receive long — term psychiatric and psychological treatment at South Beach Psychiatric Center, where she remains a patient to this day. Except for a brief period of time in 1998, the mother has been cooperative and has followed all treatment recommendations. She has voluntarily participated in a trauma safety group, a communication skills group, an emotion regulation group and a mindfulness group. She has consistently attended these groups and has actively participated. Dr. Manheim testified that the mother has benefited from these groups and the other components of her ongoing treatment. He also testified that her symptoms of depression are in remission.

Dr. Pologe reported that the mother handled his evaluation remarkably well given her psychiatric history. He noted that his interviews are demanding and that the mother was able to adjust to his interruptions and his "pressuring her for clear answers or to move on to another topic." Dr. Pologe further noted that many parents he has interviewed, who did not have the mother's psychiatric history, "showed less ability to handle the stress of the evaluation." In his opinion, this supported the conclusion that she had successfully obtained treatment and learned to deal with her emotional difficulties.

In considering whether visitation would be inimical to Linda's best interests, the Court has also considered the mother's behavior during her interactions with Linda. According to Ms. Hessman, the mother was completely appropriate with Linda and attempted to engage her and make her feel comfortable. The mother exhibited a great deal of self-control and was able to put Linda's "very special needs first above her own." The mother made no attempt to pressure Linda to speak or take any of the gifts she brought her. She never overwhelmed Linda. When Linda was disengaged and said that she wanted to leave the visit, the mother was positive, gentle and successful at engaging her daughter. According to Ms. Hessman, the mother was upbeat and "quite open to suggestions." Further, Ms. Hessman described the mother as "hopeful," "poised," "cordial," and "extremely easy to work with."

According to Dr. Pologe, the mother displayed "insight and self-control" when observed with Linda. The mother was "gentle, not at all intimidating, tense, agitated, intrusive, or in any way overwhelming to her shy child." The mother was not anxious or frustrated by Linda's lack of verbal communication but, in fact, did a "wonderful job" of engaging her and encouraging the signs of spontaneous interest that she showed. Further, Dr. Pologe noted that he has "rarely seen a parent in a forensic evaluation respond so gracefully and productively to an uncommunicative child." As Dr. Pologe noted the mother has "modified her behavior, improved her coping and interpersonal skills and now displays behaviors of a suitable parent." In his opinion, there is absolutely no evidence that supervised visitation between the mother and Linda would be contrary to her best interests.

The Court has also considered Linda's response to contact with her mother. At the end of the first visit with Ms. Hessman, Linda indicated that she would like to come back and see D. again. Linda shook her mother's hand and hugged her. According to Dr. Pologe, Linda responded positively to her mother. She smiled, her shyness eased and she held up her fingers in response to questions. Dr. Pologe, like Ms. Hessman, noted that while Linda remained non-verbal, she did respond "in all other ways to her mother." The mother and Linda drew together and elaborated on their creations. At the end of the visit, the mother asked to keep one of Linda's drawings and Linda gladly gave her one. In addition, when the mother asked for a hug, Linda enthusiastically gave it to her.

The father insists that Linda should not visit with the mother since the visits disrupt her routine and any disruption in her routine causes her to act out. He asserts that visits have resulted in Linda screaming, yelling and banging her head against the wall. Yet the evidence he presented failed to establish this. Not even the father's own non-family-member witnesses observed any of the violent or self-destructive behavior that the father claims Linda exhibits in response to changes in her routine.

The father submitted a letter from Dr. Musteti-Oprea, the psychiatric resident, who saw Linda and her father for a total of 90 minutes. That letter indicated that it was in Linda's best interests not to participate in the court hearing to "avoid further deterioration of her behavior." Dr. Musteti-Oprea acknowledged, however, that Linda never exhibited any aggressive or self-injurious behavior in her presence. She also acknowledged that she wrote the letter after having seen Linda and her father for only 30 minutes and that, during that time, the father did most of the talking. She never spoke with Linda alone. She never met the mother. She never observed Linda with the mother. She never spoke with any of Linda's teachers or her pediatrician and never read any of the reports written by Diane Hessman or Dr. Pologe. Indeed, she never spoke with anyone besides the father regarding Linda or Linda's behavior. Likewise, Linda's former teacher, Iona Minzberg, was unable to corroborate the father's assertions.

Moreover, contrary to the father's claim, Dr. Pologe testified that Linda tolerated change well, responded easily to instructions, engaged in social interaction and sat calmly with excellent eye contact. She did not engage in any random, agitated or non-purposeful behavior. Indeed, neither Dr. Pologe, nor Ms. Hessman — the only experts who actually observed Linda's interaction with the mother — ever saw Linda have a tantrum, act-out, scream, bang her head against a wall or exhibit any of the other behavior described by the father and the stepmother, even though the evaluations and the visits were all disruptions in the child's routine.

While the recommendations of the court-appointed forensic evaluator and the Attorney for the Child are not determinative, they are entitled to some weight and constitute one of the numerous factors that the court is required to consider in making a custody or visitation determination, unless such recommendations are contradicted by the record (see Young v Young, 212 AD2d 114 [2d Dept 1995]; Neuman v Neuman, 19 AD3d 383 [2d Dept 2005]; Miller v Pipia, 297 AD2d 362 [2d Dept 2002]; Nicholas T. v Christine T., 42 AD2d 526 [2d Dept 2007]). In the instant case, both court-appointed experts, Dr. Pologe and Ms. Hessman, as well as the former court-appointed forensic psychologist, Mark J. Rand, Ph.D., and the Attorney for the Child, all support the mother's request for supervised visitation. Their recommendations are fully supported by the record. In addition, although the father had every opportunity to retain an expert to evaluate Linda and testify on his behalf, he failed to do so.

In evaluating Linda's best interests the Court is also bound to consider the effect of domestic violence upon the best interests of the child where the allegations have been proven by a preponderance of the evidence (DRL §240 [1]; Finkbeiner v Finkbeiner, 270 AD2d 417 [2d Dept 2000]; Machado v Del Villar, 299 AD2d 61 [2d Dept 2002]; Hilliard v Peroni, 245 AD2d 1107 [4th Dept 1997]). Here, the Court has considered that there has been a finding that the mother committed a family offense against her oldest child, Stewart. Nevertheless, after reviewing J.H.O. Cammer's findings, the audiotape of the hearing and counsels' supplemental submissions, the Court has concluded that the finding of harassment in the fourth degree is not dispositive of the instant case.

There was no evidence adduced during the family offense hearing to establish that the mother posed a physical threat to Stewart. Indeed, the undisputed evidence establishes that she never approached or attempted to approach him or spoke or attempted to speak with him. Furthermore, although Stewart alleged that the mother had entered the store after being served with a copy of the initial temporary order of protection, the Court made no finding that a violation had taken place.

Moreover, the evidence adduced at the visitation hearing establishes that the mother was always appropriate with Linda during their interactions. She displayed "insight and self-control" and was "gentle, not at all intimidating, tense, agitated, intrusive, or in any way overwhelming." At no time during the visits with Ms. Hessman or the evaluation by Dr. Pologe did the mother behave in a manner that was detrimental to Linda's best interests.

Additionally, while the child's stated wishes are relevant, they are not determinative of the issue of visitation (DeBiase v Scheinberg, 47 AD2d 657 [2d Dept 1975]; Hotze v Hotze, 57 AD2d 85 [4th Dept 1977]; Resnick v Zoldan, 134 AD2d 246 [2d Dept 1987]; Bubbins v Bubbins, 136 AD2d 672 [2d Dept 1988]). The weight given to the child's preference will depend upon the court's assessment of the child's maturity, the extent to which the parents have influenced the child's views and the rationality of the child's wishes (Muller v Muller, 221 AD2d 635 [2d Dept 1995]; Dwyer v De La Torre, 260 AD2d 773 [3d Dept 1999]; Zelnik v Zelnik, 196 AD2d 700 [1st Dept 1993] [child's preference deemed not controlling because of the potential for influence having been exerted]; Hughes v Hughes, 150 AD2d 449 [2d Dept 1989] [error to deny visitation based on objections of the 17 and 15-year-old children where there was no indication that the non-custodial parent posed a physical threat to the children or that visitation would be harmful to their emotional health]).

Consideration of these criteria in light of Linda's pervasive developmental delays and her diagnosis of moderate mental retardation, leads this Court to conclude that Linda's apparent opposition to visitation is not determinative. In reaching this determination, the Court has also considered that it is quite likely that Linda's reluctance is, in large part, the result of influence by the father and the stepmother. This conclusion is based on several factors. First, both the father and the stepmother have repeatedly indicated that they adamantly oppose contact of any kind between Linda and the mother. Indeed, their animosity toward her was seen as potentially harmful to the children to such an extent that Dr. Pologe — and Dr. Rand before him — suggested that they undergo counseling to reduce their bitterness toward the mother for the benefit of the children.

Second, neither the father nor the stepmother has ever made any effort to hide from Linda their anger and bitterness toward the mother. Dr. Pologe described his observations in this regard. He reported that the father and the stepmother brought Linda to a session with the mother complaining about her and acting "angrily, with great tension and disgust" in Linda's presence. When Dr. Pologe attempted to speak to the father and stepmother about their behavior, the stepmother ignored him. She was "pointedly unresponsive" and then answered him with "considerable hostility." At that point, the tension in the room was "palpable and extreme," and Linda was present for the entire incident.

Ms. Hessman made similar observations. She reported that Linda told her that the father and stepmother said that it was "not okay to visit with D." and that it was "not okay to play with D." Ms. Hessman also reported that Linda did not take home the birthday gifts that the mother bought for her because, if she did, she would have to "play alone." Finally, Ms. Hessman described one occasion, when Linda arrived at the office with the father for a visit with the mother, insisting that she wanted to leave. Nevertheless, when Ms. Hessman spoke with Linda alone and informed her that D. was in the next room, her expression softened and she agreed to try and visit. When Ms. Hessman informed the father that Linda had agreed to the visit, he was not only unsupportive of his daughter's decision but also critical of Ms. Hessman for not speaking with staff from Linda's school.

Finally, the Court has carefully considered the father's views and the reasons given for his continued opposition to visitation. In considering his assertions, the Court has never doubted that the father sincerely believes that he is acting in the best interests of his daughter. Nevertheless, based on all of the evidence adduced during this protracted proceeding, the Court must agree with the opinion expressed by Dr. Pologe, that is, while the father's objections may have been valid in the past, they are now anachronistic. While the father's persistent anger toward the mother may be understandable, his feelings do not provide a sufficient basis to deny Linda the opportunity to develop a relationship with her mother since a preponderance of the evidence establishes that contact between them would be in the child's best interests.

Accordingly, it is hereby

ORDERED that the mother's petition seeking visitation with Stewart is denied and V-5921/97/05D, is dismissed to the extent that it seeks visitation with Stewart; and it is further

ORDERED that the order of Hon. Maureen McLeod dated May 4, 1999, suspending visitation between the mother and the subject child, Linda, is hereby vacated; and it is further

ORDERED, that the mother shall have one visit each month supervised by Diane Hessman, M.S.W., or another mental health professional agreed upon by the parties and the Attorney for the Child, provided that the parties and the Attorney for the Child agree to another mental health professional within 21 days from the date of this order; and it is further

ORDERED, that in the event that Diane Hessman, M.S.W., is unable or unwilling to supervise the visits and the parties and the Attorney for the Child are unable to agree on another mental health professional within 21 days, counsel for the mother shall file and serve a request for judicial action and restore the case to the Court's calendar; and it is further

ORDERED, that the mother shall continue to cooperate with mental health treatment, including therapy and medication, and comply with any recommendations made by her treatment providers; and it is further

ORDERED, that the mother is directed to pay the entire fee charged by Diane Hessman, M.S.W., or the other mental health professional agreed upon by the parties; and it is further

ORDERED, that both parties are directed to contact Ms. Hessman or the other mental health professional agreed upon by the parties, forthwith to schedule supervised visitation which shall not interfere with Linda's school schedule or any after-school activities; and it is further

ORDERED, that the father shall be responsible for ensuring that the child, Linda, is transported to and from the supervised visitation on a timely basis; and it is further

ORDERED, that Ms. Hessman or the other mental health professional agreed upon by the parties to supervise the visits shall provide a report to the Court and all counsel within 90 days regarding the status of the visitation; and it is further

ORDERED, that the parties and all counsel shall appear in Court onDecember 18, 2009for a conference regarding the status of the visitation; and it is further

ORDERED, that the parties are directed to refrain from any conduct, speech, or activity, which would instill in Linda feelings of fear or hostility towards the other parent; and it is further

ORDERED, thatpending further court order Linda shall not be told that D. C. is her biological mother; and it further

ORDERED, that each party shall keep the other advised of his/her current address and telephone number; and it is further

ORDERED, that the terms of this order are based on the present residence of the parents. The father shall not change his telephone number or relocate from his current residence without providing the mother with at least 60-days prior written notice. In any event, if the contemplated move is in excess of 30 miles or will significantly impair the rights granted herein, prior Court approval of such move shall be obtained, unless both parents agree, in writing.