Opinion
xxxxx
02-22-2019
In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act, C.A., Petitioner, v. A.A., Respondent.
Debbie Jonas, Esq., Bronx Defenders, Bronx, New York, for Petitioner Kevin McAllister, Esq., Bronx, New York, for Respondent Candice Whatley, Esq., Legal Aid Society, Bronx, New York, for the Subject Child
Debbie Jonas, Esq., Bronx Defenders, Bronx, New York, for Petitioner Kevin McAllister, Esq., Bronx, New York, for Respondent Candice Whatley, Esq., Legal Aid Society, Bronx, New York, for the Subject Child Aija M. Tingling, J.
Petitioner has filed a petition for visitation under Article 6 of the Family Court Act seeking unsupervised visitation with the subject child, G.A. (02/04/08). Respondent mother opposes Petitioner's request for unsupervised visitation with the subject child. Attorney for the child also opposes unsupervised visitation between Petitioner and G.A. A hearing was held on June 19, 2018 and October 9, 2018.
Summary of Arguments
Petitioner is seeking unsupervised visitation with the subject child, G.A. Petitioner's visits with the subject child were previously supervised by the paternal aunt Antonia A. However, Ms. Antonia is no longer able to supervise the visits and Respondent has not approved any alternative resource proposed by Petitioner.
Respondent opposes unsupervised visits based on a prior Article 10 case filed against Petitioner wherein the court made a finding of abuse by Petitioner against the subject child's older sibling. Petitioner contends that the paternal aunt Antonia A.'s inability to supervise Petitioner's parenting time is not a basis to transition to unsupervised visits and that this court should order all contact between Petitioner and the subject child be supervised at an agency at Petitioner's expenses or a different resource mutually agreed upon.
Attorney for the child (AFC) also argues that the visitation between Petitioner and the subject child remain supervised. AFC contends that while the visits between Petitioner and the subject child have been successful, serious allegations were made and substantiated against Petitioner in the prior Article 10 proceedings and since that time, Petitioner has gained no insight from the services ordered in the dispositional order in that case. As such, the visits should remain supervised.
Factual Background
Petitioner was the Respondent in a prior Article 10 case involving a related, non-subject child, which was filed in January 2015. Following a full hearing, the court made a finding of abuse against Respondent relating to the non-subject child and a finding of derivative abuse of the subject child G.A. The court issued an order of fact finding and disposition dated February 9, 2016, of which this court takes judicial notice. Said order required Petitioner to engage in and complete a sex offender program, complete a parenting skills class and continue services with Friends to Fathers. In addition, the court issued a final order of protection on behalf of the subject child G.A., subject to court ordered visitation, defined as liberal visitation supervised through an agency or approved resource for one year.
Petitioner continued agency supervised visits through February 2, 2017, at which time ACS requested an extension of supervision over the family. The court granted the application to extend supervision and ordered that Petitioner continue to abide by the final order of protection issued on February 9, 2016. The court also modified the 2016 Order to include that Petitioner attend a sex offender program or appropriate counseling that included a sex offender component, and that if Petitioner engaged in individual counseling, ACS was required to provide the therapist or program a copy of the court's Fact-Finding and Dispositional orders.
Starting in March 2017, Petitioner transitioned to community supervised visits through his sister, Antonia A., an approved resource. All court ordered supervision under the Article 10 petition ended on August 7, 2017. However, Petitioner continued to exercise visitation with the subject child on Saturdays under the supervision of his sister, Antonia A., without any court orders in place until approximately November 2017.
Additionally, between February 2017 and February 2018, Petitioner was referred to SHILOH Consulting, LLC by ACS where he received individual and group counseling, and updates on his progress were provided to the court. The last report provided to the court dated, February 5, 2018, indicated that Petitioner's attendance in treatment was excellent, the factors contributing to the sexual misconduct allegations made against Petitioner were addressed and a safety plan and strategies were implemented for Petitioner to follow during parenting time with G.A. The safety plan and strategies implemented include, not being alone with G.A., never bathing her or changing her clothes and being in public places with her. The court notes that throughout the pendency of the case, Petitioner vehemently denied the allegations of sexual abuse and refused to attend a "sex offender program."
Petitioner filed the instant petition for unsupervised visitation in February 2018, once Ms. Antonia A. was no longer able to supervise the visits. While the petition was pending, starting in May 2018, Petitioner had visits with the subject child which were supervised by Comprehensive Family Services (CFS). The reports indicated that Respondent consistently arrived late for the one-hour visit, however, the visits between Petitioner and the subject child went well and were deemed appropriate.
Petitioner's Testimony
Petitioner testified that he is the father of the subject child, G.A. Petitioner testified that he resided with the subject child from birth until she was six years old (2015). From 2014 to 2015, Petitioner stopped working due to an accident and remained home with the subject child. He would take her to school, go to the park, the movies and Times Square. When the subject child was sick, Petitioner would take care of her. Petitioner testified that they had a good relationship.
In 2015, Petitioner's older daughter accused him of abuse and as a result he had to leave the home. Petitioner testified that a criminal case was filed against him in connection with the allegations, and he was subsequently found innocent. The prior Article 10 case was briefly acknowledged.
Thereafter, Petitioner had parenting time with the subject child through ACS every Monday for two years. Petitioner testified that they would play with the toys in the room, read books, and go outside and play in the yard. Petitioner stated the subject child was always happy to see him and would cry when the visits would end.
The agency visits progressed to community visits supervised by Petitioner's sister on Saturdays from 9AM to 2PM. Petitioner's sister supervised the visits for nine months during which time they would go to Chuck E. Cheese, Columbus Circle, Amsterdam Park and the paternal grandmother's home. Petitioner testified that the subject child would ask to call Respondent to extend the visits because she did not want the visit to end.
Petitioner emphatically and continually denied abusing the non-subject child and refused to attend a sex offender program. However, he agreed to attend counseling. Petitioner obtained services at SHILOH where he engaged in individual counseling for thirteen months, which included psychiatry sessions, anger management classes, parenting classes. Petitioner testified that he was also given guidance on safety being around a child, including not being in the bathroom, shower, or alone with a child. Petitioner was unable to complete the program due to his insurance being cancelled and does not have the financial resources to pay out of pocket.
Petitioner testified that his sister is no longer able to supervise the visits due to health reasons. From August 7, 2017, when the Article 10 case ended until May 6, 2018, when this court ordered visits through Comprehensive Family Services, Petitioner had no visits with the subject child. According to Petitioner, the visits through Comprehensive Family Services were too short due to Respondent arriving late for the scheduled visits. Petitioner has offered his mother as a resource; however, Respondent does not agree due to the paternal grandmother's age. Petitioner also testified that he has a sister who resides in New Jersey who may be able to supervise but has not offered her as a resource because she lives out of state.
Petitioner maintains his innocence and wants to be a part of the subject child's life. Petitioner believes Family Court is keeping him away from the subject child and does not know why Respondent wants him to have supervised visits.
Attorney for the child did not present a case, but merely cross-examined Petitioner regarding the prior Article 10 case, whether he completed the services ordered in the dispositional order and whether he had any other resources to supervise visits other than his sister, Antonia A.
Respondent's Testimony
Respondent testified that the subject child is unaware of the prior Article 10 proceedings and findings against Petitioner. She conceded that the subject child enjoys the visits with Petitioner. Respondent testified that she works on the weekends and is unable to take the child to the park every weekend; however, Petitioner is able to do so with his weekend visits.
Respondent is amenable to Petitioner having visits with the subject child, so long as they are supervised. Respondent does not consent to unsupervised visits because of the prior Article 10 proceedings and does not believe the subject child will be safe with Petitioner without supervision. Respondent has proposed her sister as a resource, however Petitioner has declined. Petitioner has proposed his mother as a resource, however Respondent declined due to her age and physical health.
Analysis:
"[A] noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child." Cervera v. Bressler, 90 AD3d 803 (2nd Dept. 2011). Visitation with a non-custodial parent is within the sound discretion of the Family Court, based on the best interests of the child. In re Amparo B.T., 118 AD3d 809 (2nd Dept. 2014); see also Matter of Dennis D. [Justesen], 83 AD3d 700 (2nd Dept. 2011).
"In the context of visitation, the best interests of the children generally lie with a healthy, meaningful relationship with both parents." Scott Q. v. Joy R., 151 AD3d 1206-08 (3rd Dept 2017), leave to appeal denied, 29 NY3d 919 (2017). Further, "the best interests of the children determine whether visitation should be permitted to a parent who has committed abuse or neglect." In re Amparo B.T., at 811.
See also In re Vinny Z., 56 Misc 3d 474 (NY Fam. Ct. 2017) [The court held that "even when abuse is found at a fact-finding hearing, that finding is not necessarily dispositive of whether the children should be released to the parents or not."]
There is no opposition to Petitioner having visits with the subject child. The issue is whether those visits should continue to be supervised or unsupervised.
Courts have granted requests to modify orders of supervised visits to unsupervised visits, where there existed allegations of sexual abuse of a child. In Scott Q. v. Joy R., supra, the court granted the father's request to modify an order for supervised visitation to unsupervised visitation with the subject child. The father testified that he complied with the conditions of a previous order directing that he complete a sexual abuse risk assessment, a polygraph examination and a sex offender treatment program relating to an abuse finding against him concerning a non-subject child. Id. at 1207. The father's psychotherapist testified that the father should not have supervised visits with the child. However, two colleagues of the father, (who supervised the visits) and the court-appointed evaluator testified that the father and child had a loving relationship and the child did not fear the father. Id. The Appellate Division affirmed the lower court's decision holding that there was sufficient evidence supported by the Family Court's determination to award father unsupervised visitation with child. Id.
There was also testimony from the father that the mother impeded or limited his supervised visitation with the child. In this regard, the father had difficulties finding a supervisor for his visitations with the child. When he was able to find one, the mother would contact that supervisor and, after such contact, that supervisor would no longer be available for future supervised visitations. Scott Q. v. Joy R., 151 AD3d 1206-08 (3rd Dept 2017).
Conversely, the court has declined petitions seeking to modify supervised visits to unsupervised visits where the petitioner did not show good cause for unsupervised visitation. In In re Tito T., 144 AD3d 813 (2nd Dept. 2016), the court issued a finding of a child abuse against the father. However, after completing a sex offender treatment program, attending and cooperating in individual psychotherapy, and twelve months of supervised visitation, the father filed an application for unsupervised visitation, which was granted. Administration for Children's Services (ACS) appealed. Id.
The Appellate Division reversed the lower court on the basis that the father failed to demonstrate good cause for a modification of unsupervised visitation because the ACS reports that the father engaged in certain inappropriate conduct during the visitation in the period prior to his application and refused to accept responsibility for the conduct that formed the basis of the abuse finding. Id. at 814.
The Appellate Division held that although "the court may modify any order issued during the course of a child protective proceeding for "good cause shown the modified order 'must reflect a resolution consistent with the best interests of the children after consideration of all relevant facts and circumstances and must be supported by a sound and substantial basis in the record.'" Id. at 814. See also Matter of Kenneth QQ. [Jodi QQ.], 77 AD3d 1223 (3rd Dept. 2010), quoting Matter of Elijah Q., 36 AD3d 974 (3rd Dept. 2007).
In the present matter, Petitioner is no longer subject to any Article 10 court orders for supervised visitation with the subject child. While Petitioner vehemently denies the allegations and the prior findings of abuse against a non-subject child, Petitioner has since followed the court orders and engaged in appropriate therapy to address any concerns regarding the allegations. He received individual and group counseling and provided updates to the court. The last report provided to the court indicated that Petitioner's attendance in treatment was excellent. The factors contributing to the sexual misconduct allegations made against Petitioner were addressed and a safety plan and strategies were implemented for Petitioner to follow during parenting time with G.A. including, not being alone with G.A., never bathing her or changing her clothes and being in public places with her. Respondent complied with all court directives and ACS did not file any subsequent Article 10 petitions for extension of supervision after August 7, 2017. During the period that Petitioner was under ACS supervision, there were no reports of inappropriate behaviors or comments made by Petitioner.
Furthermore, during the time Petitioner's sister Antonia A. supervised the visits between Petitioner and the subject child, the court never received any reports that Petitioner was inappropriate during his visits. Likewise, this court also received reports from CFS which indicated that supervised visits between Petitioner and the subject child went well and were deemed appropriate. Additionally, both Petitioner and Respondent testified that the visits between Petitioner and the subject child have gone well.
It is significant that relationship between the subject child and Petitioner has not been tainted by past history. The subject child, unaware of the Article 10 proceedings, loves Petitioner and enjoys spending time with him. The subject child and Petitioner share a positive relationship and her innocence should be preserved by maintaining this relationship; a relationship which should not be stymied due to the parties' financial inability to fund supervised visits through a third-party or consent to a mutually agreeable resource. In adhering to the "best interest" standard, it is imperative for both parties to continue to foster a positive and healthy relationship between Petitioner and the child.
Holding
The court is aware of the seriousness of the allegations and findings of the prior Article 10 proceeding against Petitioner. Those findings are not taken lightly, but are weighed it in accordance with the evidence presented herein and the relief sought. The prior Article 10 proceeding has been heard, litigated and disposed of by another jurist in 2017. The parties must be able to move forward and not be stagnated by the past, especially where it is undisputed that the subject child adores her father and enjoys her visits with him and the Petitioner has complied with court orders.
In consideration of all relevant facts, this court finds that it is in the best interest of the child for Petitioner to have unsupervised day visits with the implementation of appropriate safety measures.
IT IS HEREBY ORDERED that the petition for unsupervised visitation is GRANTED as follows:
Petitioner is to re-enroll in individual counseling prior to any visits occurring; all unsupervised parenting time between Petitioner and the subject child must take place during the day on Saturdays between 12pm and 3pm; all parenting time must occur in an open, public place, setting or venue, in which there are 3 or more people present, excluding the theater, movies, and concerts; Petitioner must inform Respondent of where the subject child will be during each visit. Any violation of this order shall result in the immediate suspension of visitation between Petitioner and the subject child. Dated: February 22, 2019 Hon. Aija M. Tingling PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT, WHICHEVER IS EARLIEST.