Opinion
10.
Decided July 8, 2010.
Anthony C. Emengo, Esq., Attorney for Plaintiff at the Time of Trial, Williamsburg, New York.
G.K., Pro Se Litigant, After the Close of the Trial Record, Violetta G. Watson, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, Attorney for Defendant, New York, New York.
Amanda Norejko, Esq., Sanctuary For Families, Attorney for Defendant, New York, New York.
Wendy A. Harris, Esq., Richards Kibbe and Orbe, Attorney for Defendant One World Financial Center, New York, New York.
Deana Balahtsis, Esq., Attorney for the Children, New York, New York.
Cheryl S. Solomon, Esq., Attorney for the Child — I.K., Brooklyn, New York.
The application to modify this Court's decision dated January 22, 2009, and the interlocutory judgment thereon is granted, after an evidentiary hearing, to the extent that the father's visitation with the four (4) younger children, M.K. born January 2002, U.K. born April 2003, S.K. born October 2004, A.K. born March 2006, shall be by supervised visitation and shall be limited to a period of two (2) hours per week. Similarly, any visitation that does occur with the eldest child, I.K. born December 1996, and the mother and/or his siblings must be in the supervised setting so that all conversations between I.K. and his younger siblings can be monitored. The father's application to modify the interlocutory judgment and grant him custody of the five minor children is denied. The balance of the relief requested is denied. The eldest child, I.K., shall continue to reside with the father for the reasons explained herein.
Background
This court conducted a full evidentiary hearing on the mother's application to modify the court's decision, and the interlocutory judgment therein. At the conclusion of the hearing, on November 5, 2009, this court ordered a neutral forensic psychological evaluation by Dr. Steven Demby, Ph.D., based upon the totality of the circumstances adduced at the hearing. The mother asserts a pattern of continued alienation by the father, and an allegation that the four (4) younger children were being encouraged to cause possible life threatening injury to the mother. She further avers that the father has made repeated attempts to have the children disclose the confidential location of the domestic violence shelter where the children and mother reside. The forensic evaluator was also directed to consider the father's claims of improper parenting and excessive corporal punishment by the mother. The mother moved to enter the report dated April 19, 2010, into evidence on April 30, 2010, pursuant to 22NYCRR 202.16 and 202.18. The parties were given until May 19, 2010, to request that the forensic evaluator be produced for cross examination. Thereafter, notwithstanding the court's oral direction, the court gave the parties one last opportunity to call Dr. Demby as a witness. Notification was made to counsel by way of a sua sponte order dated May 24, 2010, which was sent by facsimile to counsel. The order extended the deadline to call Dr. Demby as a witness to June 1, 2010. No such requests were made, to date, accordingly, the report of Dr. Steven Demby is deemed marked into evidence, pursuant to 22 NYCRR 202.18.
In this court's trial decision on the issue of custody ( see G.K. v. L.K., 20 Misc 3d 1138(A), 872 NYS2d 690 [NY Sup 2008]) the court detailed the removal of these children from the mother in Albania, and the mother's efforts and struggle to regain her passport and travel to the United States to re-gain custody of her children. In detail the court reviewed the history of violence against the mother as well as the degrading verbal abuse suffered by her. The court also reviewed in detail the role of the father in actively encouraging I.K., the eldest child's continued alienation and hostility towards the mother. In that decision the court noted:
Plaintiff has agreed to extensive therapeutic visitation between the oldest child and defendant, and it is only based upon that agreement that this court believes, with the assistance of his counsel, there may be a "glimmer of hope" that plaintiff will assist in restoring a positive relationship of I.K. with defendant. . . .
The court also noted:
The fact that plaintiff agreed in his summation to a "limited order of protection" is a start to his realization that his behavior is inappropriate. This, when coupled with his agreement at the end of the trial to cooperate with and encourage therapeutic visitation with defendant and child, I.K., at this juncture, are the only reasons the court has not ordered supervised visitation for defendant immediately. The therapeutic visitation that plaintiff previously agreed to will continue with defendant until December 31, 2008.
The father only has himself to blame for the predicament he finds himself in. It is clear to this court that the father is often incapable of telling the truth. He has encouraged some of the children and I.K., the eldest child who is in his care, to falsely accuse the mother of excessive corporal punishment and tried to control the role of the attorneys for the children, the neutral forensic evaluator and two different supervised visitation professionals. The father will enable the child I.K. and openly defy any authority or professional therapists whom assist in reuniting I.K., and the mother. The court has conducted separate in camera interviews with those children who were old enough to speak on the subject. The father has accused one supervised visitation social workers of incompetency and the second one of being drunk and inappropriate. He challenges the social workers by word and by deed in front of I.K. He is clearly short tempered and has one goal; to have himself and I.K. destroy the mother's relationship with the four (4) younger children. He actively obstructs any attempts to reunite I.K. and the mother and consistently demeans the mother. When he is not actively seeking to discredit the mother, he is allowing I.K. to do so. The father has steadfastly refused to follow through on individualized therapy for I.K., and often finds fault with the therapist or the program.
This Court by separate decision found the father's rendition of his finances to be patently false. There was compelling video surveillance of his participation in a construction business which at one time he claimed was defunct, and another time he alleged that he no longer had an ownership interest in, all the while collecting unemployment insurance. There were questionable corporate documents that contain refutable notary issues ( see G.K. v. L.K., 27 Misc 3d 1239(A), Slip Copy, 2010 WL 2553886 [N.Y.Sup., 2010]). His claims that he had no interest in his construction business were bellied by the evidence of all of the checks and transactions related to the business that he continued to control. The father contends that because the mother, unlike himself, lives in a shelter and is a recipient of public benefits, that he can better care for the children. This court rejects such a contention; it is belied by the evidence. One of the reasons the mother is in the shelter is the father's acts. The court finds it abhorrent for the father to attempt to utilize the mother's dire financial status caused by him as a means of gaining custody, while the very reason she is in such straits is his deceit to the court and his failure to comply with this courts orders for support.
The father appears to interfere with any attempt to establish a relationship between the mother and the child, I.K., and interferes with I.K.'s own therapy which has come to a halt again. This court is particularly concerned with I.K.'s relationship with his mother. At this juncture, ordering I.K. to live with the mother and the four (4) other children would place the mother and the other children in danger. As noted during oral argument on June 30, 2010, while advocating for supervised visitation, the attorney for the four (4) younger children contended that she feared that without supervised visitation her clients would become little I.K. The court is very concerned that the father has so empowered I.K. that I.K. will act out in a manner that is inappropriate. The father is causing I.K. emotional harm which may warrant the intervention, at some point, of New York City Administration for Children's Services.
The Family Court Act defines a neglected child as ". . .a child less than eighteen years of age (i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care." ( see FCA 1012 [f] [i]; see also In re Reannie D., 2 AD3d 851, 770 NYS2d 399 [2 Dept., 2003]; In Nicholson v. Scoppetta, 3 NY3d 357, 820 NE2d 840 [" . . .a party seeking to establish neglect must show, by a preponderance of the evidence ( see Family Ct. Act § 1046[b] [i]), first, that a child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. The drafters of article 10 were "deeply concerned" that an imprecise definition of child neglect might result in "unwarranted state intervention into private family life" (Besharov, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, Family Ct. Act § 1012, at 320 [1999 ed])"]).
The Family Court Act, section 1012 (h) further defines
"Impairment of emotional health" and "impairment of mental or emotional condition" [to] include a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child.
I.K. is a child, yet the father has clearly transposed I.K. into a replica of himself in both thoughts and actions. As noted by Dr. Demby, in the forensic evaluation:
This evaluation reveals no data to support that I.K.'s rejection of his mother is based on realistic estrangement. The data indicates that I.K. has not suffered actual negative or frightening experiences with his mother such as physical or emotional abuse from her. There is little basis in reality for the intensity of I.K.'s fears of his mother. The data do not indicate that Ms. [L.K.] has significant parenting deficits such as might warrant I.K.'s desire to avoid involvement with her. The data do not support that I.K.'s brothers are unhappy about living with their mother or that they make complaints about how she treats them. The complaints that I.K. has about his mother are highly determined by I.K.'s strong alliance with his father in the father's battle against Ms. [L.K.]. I.K. is completely aligned with his father's belief that Ms. [L.K.] is criminally mistreating his brothers and unfairly preventing them from living with his father. . .
The forensic evaluator also noted that
Mr. [G.K.] displayed tenuous control over his anger at several other points in the evaluation. He became angry with the evaluation twice. He became angry with the evaluator when the series of interviews with the children lasted longer than he thought it should. Even though the evaluator had explained the length of the appointment ahead of time to Mr. [G.K.], Mr. [G.K.] insisted that the evaluator had told him the appointment would last only an hour. Mr. [G.K.] also became angry with the evaluator on the telephone when the evaluator discussed scheduling a meeting between I.K. and his mother. Since Mr. [G.K.] has intense rage at Ms. [L.K.] which he has difficulty restraining, it is likely that his diatribe against Ms. [L.K.] in front of I.K. is not atypical.
The court does note the forensic evaluator's concern, but is acutely aware that it may not substitute its judgment for that of neutral forensic, inasmuch as that would be an improper delegation of authority ( see Hennelly v. Viger, 198 AD2d 224, 603 NYS2d 168 [2 Dept., 1993]). It is this court's own interpretation of the evidence and testimony that draws this court to the conclusion that intervention of this nature is warranted. This court ". . . had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" ( Peritore v. Peritore , 66 AD3d 750 , 888 NYS2d 72 [2 Dept., 2009]; see Varga v. Varga, 288 AD2d 210, 732 NYS2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 AD2d 358, 717 NYS2d 635 [2 Dept., 2000] ["Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court"]; Ferraro v. Ferraro, 257 AD2d 596257 AD2d 596, 684 NYS2d 274 [2 Dept., 1999]; DiNozzi v. DiNozzi, ___ NYS2d ___, 2010 WL 2309109 [2 Dept., 2010]). In consideration of the testimony adduced at trial and the credibility of the parties, this court is particularly concerned with the attempt to have the children write down the cross streets of the shelter in which the mother and children live and the suggestion to the children to turn on the gas. The children's visitation is permeated with degrading images and words about the mother, and the father's continued encouragement of the use of profane language by the children.
Discussion
It is well established that
[t]o modify an existing custody arrangement, there must be a showing of a change of circumstances such that modification is required to protect the best interests of the child ( see Matter of Zeis v Slater , 57 AD3d 793 [2008]; Matter of Wirth v Wirth , 56 AD3d 787 [2008]). The best interests of the child are determined by a review of the totality of the circumstances ( see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Deference should be accorded the hearing court, which observed the witnesses, and the hearing court's custody determination should not be set aside unless it lacks a sound and substantial basis in the record ( see Matter of Weinberg v Weinberg , 52 AD3d 616 [2008]; Matter of Fallarino v Ayala , 41 AD3d 714 [2007]). Here, the Family Court's determination that it was in the child's best interests to award sole custody to the father is supported by a sound and substantial basis in the record, and we decline to disturb it.
( Taylor v. Taylor , 62 AD3d 1015 , 881 NYS2d 440 [2 Dept., 2009]).
There is no change in circumstance from the time of the full custody trial to warrant the father's application for a change in custody. In fact, if anything, the father's conduct has exacerbated the current situation.
In consideration of the mother's application and the recent case law, the Appellate Division, Second Department recently held that
[w]hen making a determination with respect to visitation, the most important factor is the best interests of the child ( see Matter of Shockome v. Shockome , 53 AD3d 618 , 619, 862 NYS2d 378). A visitation order may be modified upon a showing of sufficient change in circumstances since the entry of the prior order such that modification is warranted to further the child's best interests (id.). Since "[a] noncustodial parent is entitled to meaningful visitation," the "denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child" ( Matter of Sinnott-Turner v. Kolba , 60 AD3d 774 , 775, 875 NYS2d 512).
( Balgley v. Cohen , 73 AD3d 1038 , 900 NYS2d 659 [2 Dept., 2010]).
There is a change of circumstance to grant the mother's application for a modification. The court recognizes that it cannot condition the final order determining the father's visitation rights with the child upon his enrollment in a counseling program ( see Zafran v. Zafran , 28 AD3d 753 , 814 NYS2d 669 [2 Dept., 2006]; see also Tito G. V. Thelma G., 187 AD2d 651, 591 NYS2d 41 [2 Dept., 1992]; Conforti v. Conforti , 46 AD3d 877 , 848 NYS2d 359 [2 Dept., 2007] ["it was improper for the Family Court to impose conditions the mother must fulfill in order to justify a future petition for a change of custody. However, the court ". . . may . . . direct a party to submit to counseling and treatment as a component of visitation." ( Jordan v. Jordan , 8 AD3d 444 , 445, 779 NYS2d 121 [2 Dept., 2004] ["the mother's argument that the Supreme Court should have mandated the father's completion of an alcohol treatment program and submit to random alcohol testing, as conditions of future unsupervised visitation, is without merit, and is beyond the scope of relief a court may order."]). However, the court may require a party to participate in therapy. In Bonthu v. Bonthu , ( 67 AD3d 906 , 889 NYS2d 97 [2 Dept., 2009]), although [t]he Family Court . . . erred in conditioning any future unsupervised visitation on the mother successfully completing therapy [citations omitted], [n]evertheless, the mother is directed to attend therapy as a component of supervised visitation ( see Matter of Sinnott-Turner v. Kolba , 60 AD3d 774 , 776, 875 NYS2d 512]; see also Grassi v. Grassi , 28 AD3d 482 , 812 NYS2d 638 [2 Dept., 2006]; Williams v. O'Toole , 4 AD3d 371 , 771 NYS2d 546 [2 Dept., 2004]; Matter of Remillard v. Luck , 2 AD3d 1179 , 768 NYS2d 714 [3 Dept., 2003]; Matter of Mongiardo v. Mongiardo, 232 AD2d 741, 649 NYS2d 45 [3 Dept., 1996]; Matter of Irwin v. Schmidt, 236 AD2d 401, 653 NYS2d 627 [2 Dept., 1997]; Landau v. Landau, 214 AD2d 541, 625 NYS2d 239 [2 Dept., 1995]). For the health and safety of these children, the father is directed to engage himself and I.K. in immediate weekly separate therapeutic counseling so they understand and hopefully control this obstructive behavior by both of them. His failure to enroll I.K. in a continuous regular course of therapy could be considered in a future application for contempt, if appropriate.
The court has very serious immediate concerns about the father's conduct and the child I.K.'s influence over his younger siblings. The court finds that the children were in fact encouraged to turn the gas on to cause an explosion and harm the mother, as noted by the neutral forensic evaluator, Dr. Demby. Dr. Demby stated that "[t]he potential for danger and human calamity that could have resulted from such behavior is extremely serious." The father has continued to obstruct the relationship of the mother with the children, and encourage the children to belittle and demean the mother. He has actively behaved in a way to encourage I.K. to openly defy the mother, and to encourage and actively seek the destruction of the younger siblings relationship with the mother. It was evident to this court that I.K. frequently calls the mother and issues order and ultimatums to her.
The child I.K. and the father continue to falsely accuse the mother of physically mistreating the younger children where there was absolutely no validity to the claim. The father and I.K. consistently belittle the mother curse at her or about her. The child I.K. accuses the mother of sexual relations with others.
The father has so manipulated these children that any future restoration of a normal parent-child relationship with him and I.K., will be difficult. Additionally, the role he has placed I.K. in, which at times has this child supervising the other children in a park alone, is an act of poor parenting judgment, to say the least. Furthermore, the court finds disturbing the father's acts of delivering to the court an ex-parte letter from the child, I.K., claiming he was told to bring the letter to the court. The letter was unread and rejected by this court and sent to the attorney for the child. The attorney for I.K. had no knowledge of the letter until such time as it was sent to counsel by the court. No subsequent application was made relative to the letter.
The court recognizes the importance of the child, I.K., and his mother to have a relationship, but to place the child with the mother, at this time, would be dangerous to both her and I.K.'s siblings. Any visitation between the mother and I.K. must also be in a supervised setting once a week, pending further application to the court. This decision is rooted in this court's belief that unsupervised visitation with I.K. would be detrimental to all involved and not in the child's best interest ( see Bullinger v. Costa , 63 AD3d 735 , 880 NYS2d 336 [2 Dept., 2009]). While I.K. claims he does not want to see his mother, his constant and incessant attempts to call her and control her make it clear that he is unwilling to sever his ties to his mother.
It has long been recognized that a parent's ability to encourage the relationship between the now custodial parent and a child is of paramount concern in making a custody determination. It is also well recognized that if a parent interferes with the other parent's right to visitation such ". . . conduct is so inconsistent with the child's best interests that it per se raises a strong probability that the [parent] is unfit to act as a custodial parent" ( Gurewich v. Gurewich , 58 AD3d 628 , 872 NYS2d 141 [2 Dept., 2009]; see also Zeis v. Slater , 57 AD3d 793 , 870 NYS2d 387 [2 Dept., 2009]).
In the case at bar, where the non-custodial parent so interferes with the custodial parent's rights and relationship with the children, the only remedy, short of contempt, is supervised visitation ( see Zafran v. Zafran , 28 AD3d 753 , supra). This court is gravely concerned about the child, I.K.'s, relationship with his mother and the father's purposeful interference with that relationship. However, to force I.K. to live with the mother would possibly lead to the mother's physical injury and the active encouragement of outright rebellion and even violence against the mother by I.K. and eventually the other children, if I.K. has his way. Therefore, this court must prevent direct unsupervised access between, not only the father and the children, but I.K. as well. This court is mindful of the fact that all attempts, to date, at intervention with professional assistance have been thwarted by the father's acts, and I.K.'s acts sanctioned by the father both implicitly and explicitly. The determination for supervised visitation with the mother and I.K. is not entered lightly. Rather, it is reached after consideration of the totality of the circumstances of the parties and the physical, mental and emotional health and safety of I.K., his siblings and the mother, and in the best interest of I.K ( Matter of Ramazan U., 303 AD2d 516, 756 NYS2d 442 [2 Dept., 2003] ["Supervised visitation is not considered a deprivation of meaningful access to the child"]).
The emergency suspension of visitation granted on June 30, 2010, is vacated and superceded by this decision. The mother is directed to settle order on notice together with a copy of this decision within 10 days of entry.
At the time of trial through the close of the record, the father was represented by counsel, Anthony Emengo. On May 19, 2010 G.K. substituted himself as attorney, pro se. The father's counsel, Anthony Emengo, represented on the record that his client could no longer afford his service and was therefore, being discharged, however this court subsequently learned that by order dated May 18, 2010, effective June 18, 2010, Mr. Emengo was suspended from the practice of law by order of the Appellate Division, Second Department, ( In re Emengo, ___ NYS2d ___, 2010 WL 2010728, 2010 NY Slip Op. 04384 [2 Dept. 2010]). This court explained to G.K. on the record the risks of proceeding self represented and that he has a right to retain counsel and he could have an adjournment for the purpose of obtaining counsel. After repeatedly questioning G.K. as to his wishes, G.K. stated that he wished to represent himself. This court believed that the father did not qualify for assigned counsel in accordance with the Judiciary Law 35 (8) given the overwhelming evidence at the financial trial as to the father's financial deceits including his collecting of unemployment benefits while working. The court is concerned about the amount of public funds already expended herein given the father's blatant misrepresentations as to his economic circumstances.