Opinion
V-15828-11/17Q
06-10-2019
In the Matter of a Proceeding for Custody Under Article 6 of the Family Court Act, SHEILA H., Petitioner, v. CHRISTOPHER T., Respondent.
For Petitioner Mother: Seth D. Schraier, Esq., 3647 Broadway, Ste. 4g, New York, NY 10031; For Respondent Father: Steven Candela, 450 Seventh Ave, Ste. 704, New York, NY 10123; For the Child: Paula Bondad, Esq, from the Children's Law Center 44 Court St Fl 11, Brooklyn, NY 11201
For Petitioner Mother: Seth D. Schraier, Esq., 3647 Broadway, Ste. 4g, New York, NY 10031;
For Respondent Father: Steven Candela, 450 Seventh Ave, Ste. 704, New York, NY 10123;
For the Child: Paula Bondad, Esq, from the Children's Law Center 44 Court St Fl 11, Brooklyn, NY 11201
Javier E. Vargas, J.
Papers Numbered
Summons, Petition, Affidavit & Exhibits Annexed 1
Order to Show Cause, Affirmation & Exhibits Annexed 2
Court Proceedings Transcripts 3
Trial Exhibits 4
Upon the foregoing papers, the hearing conducted on October 18, 2018, January 8 and May 13, 2019, all the exhibits admitted into evidence and for the following reasons, the Petition by Petitioner Sheila H. (hereinafter "Mother"), for modification of a prior Court Order of Visitation, is denied and the instant proceeding is hereby dismissed.
I.
The following facts are essentially undisputed. Following an extramarital relationship with Respondent Christopher T., Mother gave birth to the subject Child of the instant proceedings. By Order of Filiation dated June 23, 2010, the Kings County Family Court (Palos, S.M.) declared Mr. T. to be the Father of the Child. Mother obtained custody of the Child and, by Order of Visitation (Valme-Lundy, R.) dated September 10, 2010, Father was granted a full schedule of alternate weekend visitation as well as holiday and vacations with the Child. Therewith commenced a long and torturous history of litigation in the Family Court spanning for over nine years, three different Judges, one Referee and two Support Magistrates. Between 2011 and 2017, the parties filed over twenty violation, enforcement and modification petitions before the then presiding Judge, the Hon. W. Franc Perry, with Father seeking to enforce his curtailed visitation rights with the Child, while Mother repeatedly sought to suspend Father's visitation citing a litany of complaints against him from the purported bullying of the Child at her schools to the existence of bedbugs in his apartment and even raising allegations of sexual abuse against him — later unfounded.
Faced with her behavior, in 2015, Judge Perry transferred custody of the Child on an interim basis from the Mother to Father because of her continued violations of his court orders and her brazen indications that she would not follow future orders. A full trial ensued on all those competing petitions, and the Family Court (Perry, J.) issued a final Decision and Order dated December 18, 2015, awarding Father sole legal and physical custody of the Child, while granting Mother only supervised visitation with the Child to be arranged by her through a licensed agency. In pertinent part, Judge Perry found that:
[Father] has demonstrated through his testimony and evidence, that he has and will continue to provide [the Child] with a safe, stable and healthy home. [Father] will provide [Child] with the level of consistency necessary for [her] development. [He] has the means and desire to place [her] needs before his own and has demonstrated that under his care, [Child] will thrive and grow. He has placed [her] in a variety of educational and social activities from which she has made many friends and gained new skills. While with her Mother, [Child] was not socially active nor did [she] have as many friends, as her Mother claimed that she wanted to be selective about those with whom [Child] came into contact. * * * The respondent mother's narrative testimony failed to focus on any of the elements necessary to support her claim that it would be in [Child]'s best interest to reside with her. Respondent mother's testimony was replete with unfounded accusations relating to the school and the petitioner father. However, those claims were not supported by any witnesses or evidence.
This arrangement has continued for the last two years with Mother visiting the Child once a week at an agency known as Comprehensive Family Services ("CFS") under the primary supervision of Ms. Rachel Schimmel, a licensed Forensic Social Worker.
By Petition filed January 10, 2017, Mother commenced the instant Modification Proceeding against Father seeking to modify that Decision & Order to award her unsupervised overnight visitation with the Child, claiming that she has engaged in weekly supervised visitation for over two years with CFS, has strained her finances by "shoulder[ing] full responsibility for the supervised visits at [CFS] for the past years," and that "the Child has expressed her wishes to spend more time in a private unsupervised setting with [her]." Although the proceedings went from Judge Perry to the Hon. Sharon Bourne-Clarke for the first three years, the matter was assigned to the Undersigned in 2018 after Judge Bourne-Clarke's transfer to New York City Civil Court. This Court immediately brokered an agreement between the parties where the Mother was to have unsupervised day visits with the Child on Sundays, and eventually given her progress, by Temporary Order of Visitation (Vargas, J.) dated July 25, 2018, on consent, the parties agreed to give Mother unsupervised visitation with the Child on alternate weekends from Sunday to Tuesday.
Unfortunately, by Order to Show Cause dated August 17, 2018, the Father moved for the immediate suspension of Mother's unsupervised visitations and the reinstatement of supervision based on the fact that she took the Child on the first overnight visit to the emergency room in Kings County Hospital to be examined for possible sexual abuse by the Father, without notifying anyone as to the purported medical emergency or their whereabouts for several hours. According to Mother, she discovered an unspecified yellow discharge on the Child's panties, which allegation resulted in intrusive questioning by hospital personnel and a vaginal examination of the Child. The sexual molestation allegation was subsequently determined to be baseless by the Hospital. After learning of this, the Attorney for the Child orally supported the Father's Motion to suspend Mother's visitation saying that the Child was traumatized by the experience and does not want to see Mother other than in a supervised setting. By Order dated August 17, 2018, this Court reinstated the supervised visitation and set the matter for an immediate trial on the Petition.
II.
At the trial commencing in October 2018, Mother testified that she was previously married and now have three children, two adult boys and the subject Child, who lived with her until 2015. She acknowledged that the Child's custody was changed to Father because of her violations of court orders issued by Judge Perry, and that she had supervised visitations with the Child beginning in 2016 until July 2018. Mother explained that, on July 29, 2018, she took the Child to a park on Sunday where they had a great time, but that upon their return home and examining the Child, Mother noticed a yellowish discharge on her panties. On August 6, 2018, Mother confirmed that she took the Child to the hospital for an emergency sexual abuse evaluation without notifying the Father or the Attorney for the Child. According to Mother, the doctors did not find anything wrong with the Child, so she was relaxed, and they later went for a pizza, with the Child staying for another night. She was surprised when she went to the precinct but her next visits were thereafter canceled. In fact, Mother acknowledged that she did not see, call or text the Child between August 2018 until January 2019, despite the resumption of her supervised visitation because she did not want to pay for them. She testified that she feels depressed about the supervised visits and does not want them anymore.
On cross examination, Mother complained that the Child is unhappy with the Father and that she should have unsupervised time with the Child because she "is a woman and can nurture her better." Raising past unfounded reports, Mother reiterated that she is the one "unhappy" with Father raising the Child because the Child "gets sick all the time" and there are bedbugs and other problems at Father's residence. Mother acknowledged never mentioning to Father her concerns about the Child's hygiene and never calling him about the hospital visit or any other "emergency" involving the Child. In fact, she proudly asserted that she would do the same over again and not notify the Father.
In opposition to the Petition, Father confirmed that Mother had approximately six weeks of unsupervised day visits with the Child, which were going well, and they agreed to give her alternate weekend visitation. Contrary to Mother's recitation about the hospital incident, Father testified that the Child returned home "depressed," crying and was very upset about the hospital visit and vaginal examination. Father stated that the Child was also shocked about the Mother's behavior in taking her to the hospital. He recounted that Mother has filed several complaints with the New York City Administration for Children's Services ("ACS") against him and taken the Child to the hospital with similar allegations of sexual abuse on at least a dozen times. For instance, sometime in 2016, Mother accused Father of sexual abuse of the Child, which allegation was unfounded by ACS. Father also testified that Mother has some "abnormalcy" because he has experienced her "erratic" behavior when she turns rapidly from "mild to outrageous" and "normal to abnormal."
The final and most significant person to testify was the CFS Social Worker, Ms. Schimmel, who has been a licensed Social Worker for over four years and has supervised Mother's visits with the Child since 2016. She estimated that there have been over 50 visits with the Child throughout the years, but that Mother did not engage their services for the visits between July 2018 to January 2019. According to Ms. Schimmel, the Child always appears excited to see the Mother and enjoys the one-hour visits. Most times the visits will take place at the CFS facilities but, weather permitting, they will also walk around the surrounding area and parks for the visits.
Ms. Schimmel's credible testimony recounted how Mother will frequently mention and criticize the Child about "getting fat." She also testified that Mother will usually bring toys like portable video games, cell phones or a small purse to play with the Child during the visit, just to take them back at the end of the sessions with the caution that the Child could only have these items if she were to return to live in Mother's residence; these exchanges promptly required Ms. Schimmel's intervention and redirection. Indeed, Ms. Schimmel testified that on several occasions during the visits, Mother will attempt to engage in conversation with the Child either about the pending court proceedings with Father or about the Child returning to live with Mother in the future, again requiring her intervention in refocusing the conversation with the Child. More than once, she had to reassure the Child's about her concerns of when - if ever - would such transition to Mother happen. As a Social Worker, she testified that the Child should not be fed future uncertain plans because they "create confusion and fear" in the Child, not to mention possible bitterness. Since January 2019, Ms. Schimmel stated that Mother has reduced the numbers of visits with the Child to five sessions or one per month.
Tellingly of Mother's mind games, Ms. Schimmel wrote on her CFS Report:
In visits that took place near holidays or events such as [the Child]'s birthday, [Mother] frequently stated to [the Child] that she should not get upset or disappointed by the celebrations or gifts planned by her Father. In response, [the Child] often appeared confused and asked her Mother why she would be disappointed. [Mother] did not provide further elaboration to the reason why she anticipated [the Child] to feel this way but continued to express that she should not become upset.
* * *
Oftentimes on community visits, [Ms. Schimmel] needed to intervene for safety related issues. For example, [the Child] attempted to walk while wearing headphones and playing a handheld video game and [Schimmel] intervened to prevent her from walking into objects or persons or attempting to cross the street without looking. * * * In response to [the Child]'s behaviors [Mother] made minimal efforts to intervene and [the Child] often ignored these requests. Rather, [Mother] informed [the Child] that she should not misbehave in front of "the social worker" [who] was noting [the Child]'s behavior and it could interfere with [her] ability to return to her Mother's care.
Both parties rested their cases, summed up their arguments and requests for relief, and this Court reserved decision.
III.
In order to modify an existing custody and visitation order in the absence of an agreement between the parties, a party "must show that there has been a sufficient change since the entry of the order such that modification is warranted to further the child's best interests" ( Matter of Rajakkannan v. Pradhan, — AD3d —, 2019 NY Slip Op 03791 [2nd Dept. May 15, 2019] ; see Matter of Henry v. Tucker, 157 AD3d 892, 893 [2nd Dept. 2018] ; Matter of Licato v. Jornet, 146 AD3d 787 [2nd Dept. 2017] ; Matter of Cusano v. Coitino , 155 AD3d 722, 723 [2nd Dept. 2017] ). "Hearings have been denied and modification requests dismissed, where the allegations were conclusory and unsubstantiated" ( Matter of Newton v. McFarlane , — AD3d —, 2019 NY Slip Op 04386, NYLJ, June 7, 2019, at 32, col 5 [2nd Dept. June 5, 2019] [citations omitted] ). "Supervised visitation is appropriately required only where it is established that unsupervised [parental access] would be detrimental to the child" ( Cervera v. Bressler , 50 AD3d 837, 839 [2nd Dept. 2008] ; see Matter of Gainza v. Gainza, 24 AD3d 551 [2nd Dept. 2005] ; Rosenberg v. Rosenberg, 44 AD3d 1022, 1024 [2007] ). The determination of whether parental access should be supervised is a matter left to the trial court's sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record (see Matter of Henry v. Tucker , 157 AD3d at 893 ; Matter of Kraft v. Orsini , 136 AD3d 916, 917 ).
Applying these principles to the case at bar, Mother's Petition fails. In support of her requests, Mother has utterly failed to make an evidentiary showing that there has been a "subsequent change in circumstances" sufficient to warrant a change of Judge Perry's Order. Although Judge Perry after a full trial ordered only supervised visits with the Child for Mother, this Court initially permitted her to have unsupervised day visits with the Child and to transition her to overnight visits after a certain period of time. However, Mother immediately reverted to her old wiles on the very first overnight unsupervised visit with the Child: she took the Child to the emergency room claiming that Father had sexually abused her. This undisputed behavior coupled with her testimony at trial which primarily centered on her grievances against the Father and the court system rather than about the Child and plans about her future and well-being, demonstrated Mother's self-centeredness and almost complete disregard for the emotions or best interests of the Child. Echoing Judge Perry's findings, Mother appears to be concentrated in disrupting Father's custody of the Child by any means necessary.
But elevating her personal grievances and mind games over her duty to protect the emotions and best interests of the Child is repugnant, and her documented failure to protect the Child appears by itself to be sufficient reason to require supervised visitation with her for the foreseeable future, unless Mother significantly addresses her shortcomings. As recently expressed by the Appellate Division, Second Department:
Litigation over established court-approved child custody and access arrangements can be unsettling and traumatic for children, particularly for children of sufficient age or maturity to comprehend, and worry, about potentially significant changes in their daily lives, such as what home they live in, what family members they live with, what schools they go to, what friends they have, and what activities they undertake. The prospect of having to be interviewed by a judge, consult with counsel, be examined by a forensic clinician, and deal with parents who are embroiled with each other in litigation, can create significant anxiety and stress, which, by itself, may be harmful to a child's development
( Matter of Newton v. McFarlane , — AD3d —, 2019 NY Slip Op 04386 ). Just like in that case, Mother's unsubstantiated and conclusory allegations are insufficient to warrant a change of her visitation (see Matter of Chichra v. Chichra , 148 AD3d 883, 885 [2nd Dept. 2017] ; Matter of Ali v. Hines, 125 AD3d 851, 851-852 ). To the contrary, Judge Perry's initial determination to grant only supervised parental access to Mother appears to have been - and continues to be - in the best interests of the Child (see Matter of Henry v. Tucker , 157 AD3d at 893 ; Matter of Torres v. Ojeda , 108 AD3d 570, 571 ), as advanced by the Attorney for the Child in expressing the Child's own requests. That conclusion is clearly supported by Father's and Ms. Schimmel's credible testimonies and the documentary evidence about Mother's destructive behavior and her lack of insight of her damaging mind games with the Child.
Nevertheless, this Court does not believe that supervised visitation should be a permanent solution for a parent. There should be a mechanism implemented in order to eventually transition Mother in the future from these supervised visits to other more normalized visitation arrangements with the Child. However, there clearly must be a mental health component given the Mother's narcissistic and somewhat peculiar behavior. The Father is not without blame either as there was testimony that he will also make comments about Mother's observed instability to the Child; neither of the parties should insult or disparage the other to or in the presence of the Child. As such, this Court is hereby directing the Mother to address her parenting skills and eventually engage in therapeutic visitation services with the Child under the auspices of her health insurance.
IV.
In accordance with the foregoing, the Court hereby denies Mother's Petition and dismisses the proceeding. However, in order to eventually transition Mother from these supervised visits in the future, the Mother is directed to engage in therapeutic visitation services at Comprehensive Therapeutic Services, located at 450 Lexington Avenue, New York, NY 10017, tel. (212) 658-0977. The services of Comprehensive Therapeutic Services shall be paid for by the Mother's health insurance, or shall be paid for by her directly, out of pocket, should payment by health insurance not be possible. Upon receipt of this Order, the Mother shall immediately contact Comprehensive Therapeutic Services to schedule the necessary appointments to engage their services. The foregoing constitutes the Decision and Order of the Court.