Opinion
V-14214-09/15D V-14214-09/15E V-14214-09/15F
06-10-2016
In the Matter of a Proceeding Under Article 6 of the Family Court Act John M., LAURA T., MELISSA T., Petitioners, v. Laura T., JOHN M., MELISSA T., Respondents.
John M., Pro Se Laura T., Pro Se Monroe County Public Defender, by Odette J. Belton, Esq., for Melissa T. Eftihia Bourtis, Esq., Attorney for the Children
John M., Pro Se Laura T., Pro Se Monroe County Public Defender, by Odette J. Belton, Esq., for Melissa T. Eftihia Bourtis, Esq., Attorney for the Children Dandrea L. Ruhlmann, J.
This is a custodial dispute between maternal grandmother, and biological mother and father, both of whom have struggled with substance abuse. By petition filed November 23, 2015, John M. (Father) seeks joint custody of his two daughters Bryanna M. (DOB: 2001) and Emma M. (DOB: 2004). By cross petition filed December 14, 2015, Laura T. (Grandmother), and by petition filed December 16, 2015, Melissa T. (Mother) seek to modify orders of custody and visitation entered February 22, 2010, July 1, 2010, March 2, 2011 (corrected order), August 25, 2011 and April 7, 2015.
Grandmother was granted sole custody of the children with supervised visits to Mother by order entered February 22, 2010, upon consent of Mother. Father did not appear. The Court ordered Mother to complete a drug and alcohol substance abuse program, the completion of which would constitute an automatic change of circumstances allowing Mother to petition the Court for a modification of the Custody Order. The Court granted Father supervised visitation by Order entered July 1, 2010 and corrected Order entered March 2, 2011 and conditioned his further visitation upon an updated substance evaluation and compliance with treatment recommendations, if any.
By Order entered April 7, 2015 Father and Grandmother were to follow the recommendations of the Supervised Visitation and Exchange Program, Therapeutic Visitation at the Society for the Protection and Care of Children (SPCC) regarding his visitation with the children. On January 22, 2016 Therapeutic Visitation ended successfully for Emma and unsuccessfully for Bryanna (who stopped attending in August of 2015) and visitation for both girls was to continue at SPCC in its supportive supervised visitation program. SPCC's Therapeutic Visitation Program is available for Bryanna should Bryanna wish to explore further her relationship with her Father.
This Court finds during the two day trial that all the witnesses' testimony (Father, Grandmother, Mother and Father's friend Andrea P.) was credible (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage . . . in observ[ing] the demeanor of the witnesses"]; Eschbach v Eschbach, 56 NY2d 167 [1982]; see also Boyd v Boyd, 252 NY 422 [1930], rearg denied 253 NY532 [1930]).
Change of Circumstances:
As between a parent and non-parent, a parent has a superior right to custody that cannot be denied, unless the non-parent establishes extraordinary circumstances (see Matter of Male Infant L. 61 NY2d 420 [1984]). Extraordinary circumstances exists here. The Court first granted Grandmother sole custody of the girls in 2010 (see Domestic Relations Law § 72 [twenty-four months of custody during which a parent voluntarily relinquishes custody to a grandparent constitutes extraordinary circumstances]). Still Mother and Father first must prove a " change in circumstances which reflects a real need for change'" (Matter of James D. v Tammy W., 45 AD3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [4th Dept 2006]; see also Matter of Danner v NePage [Appeal No. 3], 100 AD3d 1405, 1406, lv denied 20 NY3d 859 [2013]) before the Court determines whether such a custodial/visitation change is in the children's best interests (see Matter of Pauline E. v Renelder P., 37 AD3d 1145 [4th Dept 2007]; Eastman v Eastman, 118 AD3d 1342 [4th Dept 2014], lv denied 24 NY3d 910 [2014]).
Mother has met her burden of showing a change in circumstances by her completion of a substance abuse treatment program, her sobriety and her now positive relationship with both the children and Grandmother. Bryanna's relationship with Father has deteriorated significantly over an extended time which also constitutes a change of circumstances (see Matter of Suzanne T. v Arthur L.T., 12 Misc 3d 691 [Fam Ct, Monroe County 2005], affd 30 AD3d 1105 [4th Dept 2006] [passage of time and children's changing relationships with parents constituted, in part, a change of circumstances warranting a best interests analysis and change in the existing custodial arrangement]).
Best interests:
The parties disagree about what is in the children's best interests. Grandmother and Mother agree that Mother should enjoy joint custody with Grandmother with Grandmother retaining primary physical residency. Grandmother argues that it is in Emma's best interest only to continue supervised visitation with Father at SPCC. She believes Bryanna's visits with Father should end.
To determine the best interests of a child, a Court must consider (1) the individual needs and expressed desires of the child; (2) the need of the child to live with siblings; (3) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial agreement has continued; (4) the quality of the child's home environment and that of the party seeking custody; (5) the ability of each party to provide for the child's emotional and intellectual development; and (6) the financial status and ability of each party to provide for the child (Fox v Fox, 177 AD2d 209, 210 [4th Dept 1992]; see also Eschbach, 56 NY2d at 172-173). "Always remembering the formative aspects of childhood, the quest, if possible, is for a reasonable accommodation of the rights . . . of both [the parent and the child]" (Weiss v Weiss, 52 NY2d 170, 176-77 [1981]). Based on the limited evidence adduced at trial this Court has weighed all the best interest factors (id.; Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]) and finds the following:
The Continuity/Stability of Existing Custodial Arrangement and Quality of Children's Home Environment:
Bryanna and Emma both lived with Grandmother on and off since 2006, and consistently since 2009. Grandmother testified that both girls are on the high honor roll at their schools. Both girls play instruments and participate in chorus and orchestra. Bryanna swims and volunteers at an animal shelter and at the library. Emma (who suffers from asthma) also volunteers at the library and is on her school's yearbook club committee. Mother testified that recently her sister had a baby and her parents went down to North Carolina to help her. Mother stepped in for a week to care for the girls and admits, "I don't know how [Grandmother] does it. She is super woman. Like I can't thank her enough."
Ability to Provide for Children's Development:
The girls had a lot of difficulty when they first came to live with their grandparents. Grandmother testified that she has engaged both girls in therapy. Both girls have been in and out of therapy in school and outside of school, however Grandmother maintains they now are well adjusted.
As to Bryanna's current diagnosis with posttraumatic stress disorder, Father said he "imagine[d] [it was] because of stuff she's seen between me and her mother." Father acknowledges that Bryanna stopped attending visits with him at SPCC after she learned that his estranged wife Cheryl M. now has an order of protection against him. No evidence was adduced at trial to show that Father has been "a loving, concerned and dutiful parent" to the children (Strahl v Strahl, 66 AD2d 571, 578 [2d Dept 1979], affd 49 NY2d 1036 [1980]).
Parties' Relative Fitness:
Mother and Father each have struggled with substance abuse, criminal history and domestic violence. Grandmother acknowledged that she obtained custody of the girls because "neither parent could provide for them."
Mother testified she and Father began their relationship between 2000 and 2001. She testified to sustaining several injuries from Father beginning with "a crack in the head" when she was pregnant with Bryanna. "The next big one" was when her "ankle snapped" breaking it in November 2005 after Father grabbed her by the shoulders and dragged her through their living room. She remembered the girls witnessed this abuse: Emma was a baby and both girls were crying.
In August 2006, when Bryanna was about five years old and Emma was 19 months old, Mother testified Father ripped off her shirt while she was on the front lawn holding Emma, telling her she looked like a whore. She put Emma down and "smacked him first." Father then hit Mother and went upstairs and threw all of her clothes out the window. He came back downstairs, dragged her through the house again breaking her ankle. Mother remembers Bryanna, curled in a ball in the front yard crying, "Daddy, please stop" while Emma "was crying." When police arrived Father drove away, running over the clothes on the lawn.
A litany of past events likely have negatively affected the girls, especially Bryanna, including domestic violence against Mother that resulted in an order of protection. Father testified, "All I remember is getting in a struggle with her and pushing her . . . and I guess she tripped over a toy . . . I recall her wearing an ankle boot, I don't know whether it was broken . . . ." When asked if in the past somebody came to his home, kicked in the door and went into Bryanna's room with a gun, Father answered, "yes, that was the time my house was raided."
Although Father has engaged in treatment for alcohol and substance abuse since September 2015 he admits to using marijuana approximately two weeks before trial and drinking alcohol on March 6, 2016, in the presence of his current live-in girlfriend. Father concedes he never successfully completed a substance abuse program, although he has started several and currently is in Phase I of a program. Father has been convicted of driving while intoxicated, driving while under the influence and violating probation. He has used cocaine, marijuana and LSD.
Mother testified she, like Father, failed at many substance abuse programs. Of late, however, she did complete a six month program in April 2015 and has been clean for almost two and a half years. Mother admits she was arrested in 2009 for shoplifting, and was convicted of attempted burglary in 2013, with a concomitant order of protection issued against her, that she spent five months in jail and is currently on probation.
Grandmother testified that for a long time Mother "wasn't the person that I raised. She wasn't a good mom . . . she was arrested and went to jail [in October 2013]." When released from jail, Mother came to live with her parents and the girls (her two other children not at issue here live with their father). Mother learned how to "be a mom," and about the girls' routines. Mother had to "lose contact with everybody she had ever associated with" and "stay clean" to remain in Grandmother's home. Mother began to visit with her other children, and had unsupervised time with the girls. Mother is currently attending school and engaged to "a great guy who does not use and [does not tolerate] any of it."
Grandmother states Mother has proven over the past two and a half years that she can stay free of drugs and alcohol and remain focused on her children. Mother states she is currently in her second year at Grand Canyon University in a bachelor's program focusing on addiction and substance abuse counseling, and has received several scholastic awards. Mother wants Father to complete a substance abuse program before he has expanded visits with Emma and she wants Bryanna to decide when and if she wants visits with Father.
Although Father seeks joint custody his testimony focused on increasing visitation with his girls. Andrea P., a friend of Father's testified that she attends outpatient programs and alcoholics anonymous meetings with him and that he loves his children and speaks of them often. She had never met Bryanna or Emma nor observed any interactions between Father and the girls. Grandmother on cross examination also admits she did not inform Father about any school events or swim meets. She once asked Father to take the girls to dance practice a few years ago (when paternal grandmother was supervising his visits) and although late, he did so.
Supervised Visitation:
The Attorney for the Children advocates that Bryanna's visits with Father should be at Bryanna's discretion and that Emma should have twice monthly visits with Father as supervised by SPCC. Visitation is a joint right of the noncustodial parent and of the children; however where it would be either harmful to the welfare of a child or where a parent has in some manner forfeited his right to access, a limitation on parental visitation is warranted (Weiss, 52 NY2d at 175 [citations omitted]). To date, Father has not completed a substance abuse program and admits both to a lack of sobriety and past instances of domestic violence in the presence of the girls. "A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child" (Matter of Powell v Blumenthal, 35 AD3d 615, 616 [2d Dept 2006] [Family Court improvidently exercised its discretion in awarding father unsupervised visitation]; cf. Matter of Elnatanova v Administration for Children's Services, 34 AD3d 802 [2d Dept 2006] [one element to consider is evidence of domestic violence, and Family Court properly found that the child's visits with the father should be supervised]).
Supervision is not limited to instances where a court fears for a child's physical safety; rather, a court may also consider whether a parent is having a negative impact on a child's emotional well-being (cf. Matter of Frank M v Donna W, 44 AD3d 495 [1st Dept 2007] [while affirming Family Court's finding that unsupervised visitation would negatively impact the child's well-being, the Court emphasized that supervision was meant to be temporary, almost two years had lapsed and it is in the children's best interests to eventually enjoy unsupervised visitation]; but cf Rosario WW v Ellen WW, 309 AD2d 984 [3d Dept 2003] [where only one monthly supervised visit was inadequate for a father who at one time had a positive relationship with the children - despite that father had violated prior orders of protection, had called the child names and had a history of violent behavior toward the mother and children]). "Supervised visitation is not considered a deprivation to meaningful access to a child" (Matter of Carl J.B. v Dorothy T., 186 AD2d 736, 738 [2d Dept 1992]; see Matter of Abranko v Vargas, 26 AD3d 490 [2d Dept 2006] [although father engaged in 3 ½ years of therapy, unsupervised visitation was not in the children's best interests because father's therapy failed to address significant issues]), yet supervision may interfere with the parent-child relationship (Frank M, 44 AD3d 495).
Bryanna's attorney clearly expressed that Bryanna would prefer no visitation with Father, this Court has "considered the preference of the child, given [her] age and apparent maturity" (Matter of Stevenson v Stevenson, 70 AD3d 1515 [4th Dept 2010], lv denied 14 NY3d 712 [2010]; see also Sheridan v Sheridan, 129 AD3d 1567 [4th Dept 2015]). A child's wishes are not determinative (Matter of Anthony C. v Kristine Z., 38 AD3d 1317 [4th Dept 2007]; Matter of Casolari v Zambuto, 1 AD3d 1031 [4th Dept 2003]; Hughes v Wiegman, 150 AD2d 449, 450 [2d Dept 1989]) however, "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Stevenson, 70 AD3d at 1516). The children's best interests are normally best protected by allowing the development of the fullest possible healthy relationship with both parents (Nimkoff v Nimkoff, 18 AD3d 344 [1st Dept 2005] [Family Court erred in not beginning overnight visitation between father and the children where so recommended by a court-appointed forensic psychologist and by instead focusing on father's demeanor and conduct in the courtroom]). A provision allowing a child to decide when he sees a parent "tends unnecessarily to defeat the right of visitation" (Casdari, 1 AD3d at 1031 [citations omitted]), thus "the wishes of [a child] with respect to contact with [a parent] is not controlling" (Anthony C. v., 38 AD3d at 1318).
As SPCC visitation has not worked to date for Bryanna, the Court must devise an alternative visitation plan mindful of its responsibility to ensure Father's entitlement to "regular and meaningful" access to his children (Matter of Kargoe v Mitchell, 12 AD3d 978 [3d Dept 2004], lv dismissed 4 NY3d 794 [2005]; Carl J.B., 186 AD2d 736). Preparational therapy, in the form of continued theraputic counseling, is necessary before Father can resume any other visitation with Bryanna (see Matter of Robert TT. v Carol UU., 300 AD2d 920 [3d Dept 2002] [Family Court erred in failing to determine whether preparational therapy could foster some form of future visitation]). "Preparational therapy, if appropriate, at the very least, presents an opportunity to determine whether the present relationship of [Father and Bryanna] may be improved to the extent of eventually allowing some form of court-ordered visitation" (id. at 922; see also Matter of Thompson v Yu-Thompson, 41 AD3d 487 [2d Dept 2007] [counseling or therapeutic visitation is in the best interests of the children]; Matter of Heater v Heater, 15 AD3d 804, 806 [3d Dept 2005] [Family Court's indefinite suspension of all visitation was tantamount to a termination of parental rights and the court should have determined whether some form of future visitation was feasible]).
The best interests of Bryanna and Emma warrant that they remain in the care of Grandmother. Since entry of this Court's orders of custody and visitation substantial change necessitates a new custodial/visitation plan to ensure the best interests of the children. While Grandmother shall continue to have primary physical residency of the children, she shall share joint custody with Mother. Father shall be given written notice by Mother of what schools the girls are attending and their extra-curricular activities so that he may attend such events, if he so desires. Father also shall have monitored visits with Emma twice each month at SPCC. Father shall have a once a month Therapeutic Visitation with Bryanna at SPCC. THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:
NOW, THEREFORE, it is
ORDERED that Mother and Grandmother shall share joint custody of the children; and it is further
ORDERED that Grandmother shall continue to have primary physical residency of the children; and it is further
ORDERED that the children shall have periods of temporary residency with Mother as agreed upon between Mother and Grandmother (but not at times reserved for supervised visits for Father); and it is further
ORDERED that Grandmother shall have final decision making; and it is further
ORDERED that Mother shall give Father written notice of what schools the children attend and their extra-curricular activities so that he may attend, including, but not limited to swim meets, dance recitals, chorus and orchestra concerts; and it is further
ORDERED that Father shall continue to have two monthly visits with Emma at SPCC, which visits shall be modified from supervised to monitored; and it is further
ORDERED that Father and Bryanna shall re-engage in the Therapeutic Visitation Program at SPCC on a monthly basis; and it is further
ORDERED that neither Mother nor Father shall be under the influence of illegal drugs or alcohol or shall use the same while in the presence of the children; and it is further
ORDERED that Father's completion of a drug and alcohol program and continuing sobriety will be a change of circumstance allowing him to petition the Court for increased visitation with the children; and it is further
ORDERED that no party shall speak disparagingly about another party in the presence of the children; and it is further
ORDERED that this Order shall supersede all prior orders of custody and visitation under Docket Number V-14214/15-09.
Dated this 10th day of June, 2016 at Rochester, New York. ___________________________________