Opinion
Index No. XXXXXX/2015
02-06-2023
M.L., Plaintiff, v. S.W., Defendant.
Attorney for the Plaintiff- Jill Zucardy, Esq.; Attorney for the Defendant- Jess Berkowitz, Esq.; Attorney for the Child- Michael Scherz, Esq., Lawyers for Children
Unpublished Opinion
Attorney for the Plaintiff- Jill Zucardy, Esq.;
Attorney for the Defendant- Jess Berkowitz, Esq.;
Attorney for the Child- Michael Scherz, Esq., Lawyers for Children
Tandra L. Dawson, J.
On September 9, 2019, the defendant, S.W. (hereinafter the "Father") filed the instant order to show cause seeking (1) resumption of weekly 2-5 hour supervised visits with the parties' child, W.L.W. (DOB XX/XX/2014) (hereinafter the "Child"); (2) directing that a new mental health professional perform a "risk assessment" of the Father to assess whether there is a risk of sexual or physical abuse to the Child to resume visits; (3) directing the gradual resumption of unsupervised parenting; (4) directing the plaintiff, M.L. (hereinafter the "Mother") to immediately provide his attorney with a copy of all medical, psychological and written communications related to the Child; (5) directing the Mother to provide complete copies of all of the Child's medical and psychological records to his attorney going forward; and (6) awarding reasonable counsel fees. Both the Mother and the Attorney for the Child (hereinafter the "AFC") opposed.
On March 3, 2020 the court issued a decision on the instant motion that denied the Father's request for access to the Child's medical and psychological records and counsel fees, granted the Father's request to have a mental health professional conduct an evaluation and risk assessment and deferred the remaining access issues to a hearing.
The Father's Order to Show Cause
The Father argues that the so-ordered stipulation dated April 1, 2019 provides that he may move for relief upon being released from incarceration and seeks to resume parental access with the Child. He contends that there are "two versions" of the Child. The first, is the child he spent supervised time with, who is loving, smart, sensitive and healthy as supported by Comprehensive Family Services ("CFS") and the Child's daycare. The second is the disabled and distressed child that the Mother portrays in court. The Father submits that there have been dozens of CFS reports over the past three and a half years, with no negative reports from CFS supervisors, and notwithstanding, the Mother was not interested in resuming visits and supervisory alternatives.
The Mother's Opposition
The Mother recited the procedural history of the case and argued that this court has been "crystal clear" in its rulings on visitation in the Father's prior applications for access about its concerns for the Mother and the Child's safety and the significance of the absence of any treatment by the Father. The Mother argues that the Father failed to submit any evidence that he was treated for the deep psychological problems that led him to create and disseminate material describing sex acts performed by and on children, including his own daughter. The Mother notes that while the court may not condition resumption of visitation on therapeutic intervention, it does have the authority to find that at this time it is not in the Child's best interests to resume access in light of the Father's untreated mental health issues and indicia of pedophilic ideation about the Child.
The AFC's Partial Support and Partial Opposition
The AFC urges the court that strictly supervised visitation resume after the Father has taken accountability for his past actions and engages in comprehensive treatment to address his mental health needs. The AFC stresses that the danger of the Father's actions and inactions to his young client is hard to overstate as the court has found that the Father failed to get mental health services that would address his possible pedophilic ideation. Given the Father's criminal convictions and the significant record before this court, the AFC submits that the Father remains a danger to the Child's well-being. The AFC requests that the court issue an order (1) requiring the Father to take concrete steps towards accountability for his past harmful actions that demonstrate his understanding of the direct harm he caused to the Child and (2) requiring the Father to engage in comprehensive mental health services to address his unmet mental health needs. Upon meeting those conditions, the AFC requests that the court issue an order resuming supervised visits with strict conditions and a professional supervisor that is attuned to all of the Child's needs. The AFC believes that the Father's request for resumption of visits is premature.
The Father's Reply
The Father contends that during his year of engagement with EAC-CRAN, the court never received a report that included any diagnosis of a sexual disorder, and it is impossible for him to receive treatment for a non-existent diagnosis. He believes that none of the CFS reports corroborate claims that he behaved inappropriately during supervised visits, and no specific safety concerns have been named to rule against visitation on the best interest of the child basis. He believes that a forensic mental health evaluation would assuage any uncertainty on this topic. The Father submits that he publicly apologized, and apologized in previous filings for his inappropriate behavior in 2015 to 2016, and has not violated any orders since; he regrets very much how his behavior negatively affected the Mother and the Child. Accordingly, the Father believes there is no good reason to deny the Child a relationship with her father. He believes that he has never harmed the Child, and would never do so, and will do whatever is in the realm of possibility to demonstrate that.
Joint Statement of Undisputed Facts and Procedural History
On November 4, 2021, the parties submitted a joint statement of undisputed facts (Court Exh. 1), which set forth the following procedural history:
The parties were married on December 12, 2012, and are the parents of the Child, who was born on XX XX, 2014. The Mother commenced a divorce action on or about July 6, 2015, which action was assigned to Hon. Lori S. Sattler. On or about October 5, 2015, the Mother filed a Family Offense Petition against the Father in Family Court. This court transferred the matrimonial case to the Integrated Domestic Violence part.
On October 14, 2015, the parties entered into a So Ordered temporary parenting time stipulation providing for the Father's supervised parenting time. On November 12, 2015, the parties entered into a So Ordered Stipulation temporary order for regular parenting time stipulation providing for the Father's supervised and unsupervised parenting time with the Child.
By Order dated January 13, 2016, the court ordered that visitation between the Father and Child be supervised by CFS. The Father was arrested on or about December 16, 2015, and on April 26, 2016. By Order dated April 1, 2016, the Court temporarily suspended the CFS supervised visitation between the Father and Child pending an Administration of Children's Services ("ACS") investigation and District Attorney's office investigation, based on, among other things, allegations that he had authored emails.
After an evidentiary hearing, by order dated February 27, 2017, the court ordered the Father's visitation with the Child be supervised by CFS.
On April 20, 2017, the Father was remanded to Rikers Island. On January 31, 2018, while the Father was incarcerated, the Father and the Mother entered into a Stipulation of Settlement resolving the custody and parenting time issues between them.
On February 20, 2018, the Father entered into a Plea Agreement. In the Plea Agreement, the Father admitted that:
During the period of March 2016 to February 2017, he on multiple occasions accessed the website 'annoymousemail.me" and used said website to send emails to acquaintances of M.L. that (i) contained sexually explicit content about the Child; (ii) included links to sexually explicit material; and, (iii) were made to appear as though they were sent from M.L. even though they were in fact sent by the [father].
In conjunction with his plea, on February 20, 2018, the Father was released from incarceration. In or about March 2018, the Father resumed supervised visitation with the Child through CFS. The parties were divorced by Judgment of Divorce filed August 7, 2018.
Between April 2018 and December 20, 2018, the Father and the Child had thirty-two (32) visits supervised by CFS. On or about January 31, 2019, the court signed an Order to Show Cause which temporarily suspended the Father's supervised visitation with the Child. On or about March 28, 2019, the Father was incarcerated. On March 28, 2019, the court issued an order of protection in favor of the Mother and the Child effective until 2031.
On April 2, 2019, upon stipulation, the Father's visitation with the Child was suspended pending further order of the court. On or about August 26, 2019, the Father was released from incarceration. By Order to Show Cause filed September 9, 2019, the Father moved to resume weekly supervised visitation and for an order "directing a new mental health professional at MHLS to perform a "risk assessment' evaluation upon Mr. S.W.."
By Decision dated March 3, 2020, the Court, in relevant part, granted the Father's request to have a mental health professional conduct an evaluation and risk assessment of the Father, and deferred access issues to a hearing. On June 2, 2020, the court appointed Dr. Alberto Yohananoff to conduct "a targeted forensic evaluation" of the Father. On or about October 22, 2020, Dr. Yohananoff issued his forensic evaluation.
The Fact-Finding Hearing
The parties have appeared before this court several times and the court has issued numerous interim orders pertaining to child related issues. Familiarity with prior decisions and orders is presumed and will not be repeated herein except to the extent necessary for the instant Decision and Order. The Mother and the Child have been represented by counsel throughout the proceedings. The Father was initially represented by counsel, was pro se for a short time and then was assigned counsel by the court.
The Father's Case
The Father's Testimony
The Father testified that he is seeking resumption of supervised visits with the Child and transition to "normal" visits. Dr. Yohananoff performed a forensic evaluation, and the Father testified as to his childhood and early adulthood. (Tr. 11/4/2021 at 5).
The Father testified that he was diagnosed with Acute Lymphocytic Leukemia (ALL) from age 9 to 12 and underwent hospitalizations, testing and chemotherapy, which depleted his immune system. He could not walk for a period of seven months during which time he could not attend school. He later developed panic attacks after attending funerals of other children he knew when they were sick and developed extreme fear of loss and experienced generalized anxiety attacks, for which he took medication when the attacks became too severe. (Tr. 11/4/2021 at 5-7).
At the age of 18, the Father began using drugs and alcohol to manage his anxiety. He later realized this was unsustainable and turned to treatments including meditation and other practices. At the age of 21 he was diagnosed with generalized anxiety disorder, Post Traumatic Stress Disorder (PTSD) and Attention Deficit Hyperactivity Disorder (ADHD). When his anxiety acts up, he gets overheated and sweaty, begins to ask "what if" questions and his anxiety spins out of control. Over the past few years his anxiety has been under control. PTSD used to cause him to have flashbacks and nightmares but not as much anymore. He uses medication such as Clonazepam (Klonopin) to reduce anxiety. (Tr. 11/4/2021 at 7-12).
He met the Mother in 2011, they became intimate and later got married. At the time he was doing yoga and meditation and would also use alcohol to manage his social anxiety. The Child was born on XX XX, 2014. (Tr. 11/4/2021 at 13-15).
The Father testified that in the first years of the Child's life he would help prepare the Child before work and would help as much as he could. The parties would alternate days bathing the Child and he would change the Child most of the time. He would play with the Child. After they separated, the parties agreed to an informal access order. (Tr. 11/5/2021 at 3-4).
He testified that after the order of protection was entered, he would have visits of 2-3 hours. They had four visits and the Mother cancelled the rest. He testified that it was emotionally difficult for him as he could only see the Child briefly in an office type room for a limited period of time. When asked about the emails he sent regarding the Mother having sexual relations with the Child, he testified that he was worried about the Mother's mental health as she was rushed to the emergency room on one occasion, and he spiraled into "what if" thinking and thought that if he could not do something to make the Child okay, he should make sure other people are around that could. At first, he testified that he could not recall sending the emails but then acknowledged that in going over the sequence of events he realized that he probably did, and so admitted to sending them as part of his plea agreement. He testified that he understands now that his actions were deranged and terrible. He denied having any pedophilic fantasies now or at the time he sent the emails. (Tr. 11/5/2021 at 6, 8-15).
Since March 27, 2016, he has had mental health treatment through EAC-CRAN/Dr. XXXX, and later through Rutgers Behavioral Health Clinic where he was referred. He testified that the ensuing litigation made it difficult to navigate access with the Child. When his access was suspended in 2016, his understanding was that there was an investigation by the District Attorney's office and that the Mother was being investigated by ACS. He was incarcerated for about 60 days in 2016. (Tr. 11/5/2021 at 15-20).
He next had contact with the Child in February 2017 after the order to resume visits was issued. He was next incarcerated on April 20, 2017 for 10 months and released in February 2018. Since the approximate 35 visits at CFS, prior to access being suspended on January 31, 2019, he has not had any contact with the Child. He testified that on the first visit he and the Child played with My Little Pony and he observed the Child smiling and she appeared happy. His parents joined the visit on one occasion. For the Child's birthday in November 2018, the visit included the Father, his parents and his aunt and uncle. He set up a video and watched My Little Pony and brought cupcakes and sang happy birthday to her. He observed the Child being nervous and she spoke to the CFS supervisor. He went in the hallway and told the Child that it is okay if you are nervous, but we can play out here until you feel better. The Child eventually became comfortable and was able to enter visitation room. (Tr. 11/5/2021 at 20-30).
During one of his last visits with the Child, he was playing with the Child who indicated that she wanted to get a tattoo and the Father asked if she wanted him to draw on her arm; he understood her to mean that she wanted him to do so and he wrote on her. While he was doing that the Child was smiling and they were having fun. (Tr. 11/5/2021 at 33-35).
The Father is currently voluntarily receiving mental health therapy at Positive Reset Mental Health Clinic in New Jersey. He would engage in talk therapy to talk about triggers for his anxiety disorder and discussed some of his coping mechanisms. He is currently taking Adderall (10mg three times a day). (Tr. 11/5/2021 at 35-39).
As a condition of his parole, the Father could not leave the state and was randomly tested for drugs and alcohol. To the best of his knowledge, he has not violated his parole, and he has not been re-incarcerated. His parole conditions included working full-time, not using illegal substances and not having any interactions with the police. He testified that he did not violate any of the conditions. At first he reported to his parole officer every week, and then he reported every two to four weeks thereafter. (Tr. 11/5/2021 at 42-43).
The Father would like to have visitation with the Child because he loves her, she is the closest person in his life, and he would like to watch her grow and thrive. He believes he can help the Child learn things, understand how to deal with the world and offer her the space to have safe and joyful play time. He only wants the Child to grow up happy and he wants to help her figure out what she wants out of life and who she wants to be. (Tr. 11/5/2021 at 43-44).
On cross-examination by the Mother's attorney, the Father was shown emails that he sent on December 21, 2020 to the Mother's attorney and the AFC. (P-Exh. 1). In the first paragraph, he referred to the AFC as a "douche," and could not state whether he viewed this as appropriate. The Father testified that when he sent the email, he was anxious about the Child's safety as he "always" is. The additional emails he sent state that he has brain damage and that his recovery is uncertain. (Tr. 11/5/2021 at 47-49; P-Exh. 1).
On January 27, 2021, he signed the email to counsel for the Mother and the AFC "XOXO N" and testified that N was a nickname for him. He chose to sign the emails this way as he was attempting to get an answer any way he could and did not know what it would take to get counsel to respond. He was not under the influence of alcohol or any substance at the time he sent the emails. (Tr. 11/5/2021 at 49-50; P-Exh. 1).
On January 28, 2021, he sent an email referring to the Mother as "Saint MXXX" stating that she "physically attacked and tried to kill" him. He did not have an opinion as to whether he viewed his emails as obnoxious. He did, however, consider obnoxious his email telling the AFC to feel free to put his position in writing if his "balls ever drop." On April 10, 2021 at 12:10 a.m., he emailed a member of this court's staff and copied counsel. He testified that he was not drunk at the time and was experiencing the same anxiety "as throughout." On May 1, 2021, he emailed the court, and copied counsel, and signed the email "Love always," but testified that was an accident. (Tr. 11/5/2021 at 50-54; P-Exh. 1).
The Father was next shown P-Exh. 2, which he identified as emails he gave to ACS as part of a complaint that the Mother was molesting the Child, which he denied writing and testified the Mother did. (Tr. 11/5/2021 at 55; P-Exh. 2 ).
These emails were purportedly from the Mother and sent to the Father and stated:
"Your baby is such a good pussy-licker, I think she's gonna love cunt just like her mommy. Do you know I've been fucking around on you with some women on campus? You're so ridiculous to not see what a slut I am. I love pussy no matter how old it is, just like you, but I knew how to make sure I would have W.'s pussy for as many years as I possibly can. Go fuck yourself cause i'll be the only one fucking our daughter for the foreseeable future" (P-Exh. 2).
He did admit that he wrote the emails in P-Exh. 3 that say they are from the Mother, but did not recall writing them and remembered becoming anxious before he started drinking too much. He sent these emails to the people at the Mother's place of employment. The emails contained links that were shown to the Father as P-Exh. 4-a and 4-b, and he identified a link to the website "All Sex Stories Text Repository (ASSTR)," but testified that he did not look at them. (Tr. 11/5/2021 at 56-60; P-Exh. 3-4).
He was shown more emails that he characterized as "disturbing," and indicated they were written by the Mother. He testified that he did not write them, but in the emails that he admitted to writing, he testified that he was "blind drunk" when he wrote descriptions of the Child having sex with the Mother. He believes he did it because of a combination of substances, alcohol and his anxiety being out of control, but acknowledged it was "insane" and "awful" and makes him "nauseated." Despite being drunk, he was able to navigate a spoofing website. (Tr. 11/5/2021 at 60-62; P-Exh. 5 ).
These emails stated "Just wait until you feel W's fingers and mouth on your puss. I can never thank you for helping protect us so we can have our mother-daughter fun. She would love to thank you too with a special kiss and tickle" and "I know your menopausal.. I can still make you bleed." (P-Exh. 5).
The Father testified that occasionally he has a beer at lunch. He is not currently in a program but attends Alcoholics Anonymous online sometimes. (Tr. 11/5/2021 at 66-67).
The Father was read a section of Dr. Yohananoff's report (bottom of page 14/top of page 15) where the Father told him of an incident when the Child put a Barbie doll in a sexual position. He testified that he observed the Child do this when she was approximately two-years old. (Tr. 11/5/2021 at 70-73).
On cross-examination by the AFC, the Father testified that he currently lives with his parents in his childhood home. He has lived there since late 2015. He works for his father doing maintenance and removal of radio towers and is paid a day rate. He has been doing this work on and off for 19 years. He has a Master's degree in organizational management and development. His current work schedule is weather dependent. (Tr. 11/5/2021 at 74-76).
He does not have trouble sleeping and usually wakes up at 6:30-7:00 in the morning if he does not set an alarm and typically falls asleep between 10:00 p.m. and 12:30 a.m. He takes Adderall three times a day but tries not to take it after 3:00 p.m. He is aware of side effects with Adderall. He understands that some people have trouble sleeping, but he does not. He testified that he took the following psychotropic drugs: Psilocybin, LSD, DMZ, Xanax that was not prescribed and marijuana. He smoked marijuana while in Riker's Island. He does not consider himself to be an alcoholic or susceptible to addiction. He did not believe that the irrational anxiety he experienced, or paranoia, was a side effect as he experienced anxiety since he was 12 years old. (Tr. 11/5/2021 at 77-82).
He testified that he was not impaired when he sent the emails in P-Exh. 1. He acknowledged that he did "research" on the AFC's office and people connected with his office. He did not remember copying board members of Lawyer's for Children on the emails. (Tr. 11/5/2021 at 82-83).
In the last couple of years, the Father sent the AFC and counsel for the Mother over 100 emails. Regarding signing one of the emails as "love always" he said sometimes it is an auto correct, but then denied it was auto correct. (Tr. 11/5/2021 at 84-85).
The Father acknowledged calling the AFC's direct line without an appointment and writing that he recorded the AFC giving him legal advice. He apologized for emailing the AFC, counsel for the Mother and "other people" which included the court as it was inappropriate, detrimental, stupid and irrational. (Tr. 11/5/2021 at 86-88).
When the AFC asked how he found out about a perverse website (ASSTR.com), the Father responded, "he was a public figure and I'd rather not say" but then testified it was L.B., whose family founded XXXXXXX. He admitted going to the website, but not to any of the pages. In a plea agreement, he admitted that he sent emails with links to sexually explicit content to the Mother's contacts and "spoofed," so that the email appeared to come from her, but testified that "he didn't remember doing it, but thinks he must have." (Tr. 11/5/2021 at 88-90; 91-93).
Upon questioning from the court, the Father testified that he felt regret and guilt for something even though he did not remember. The Father testified that he had blackouts on occasion but that they did not happen with any regularity but rather when he drinks excessively. His last in-person Alcoholics Anonymous (AA) meeting was in 2018/2019, and he attended his last virtual AA meeting in July. The Father testified that he accepted the AA principle that there is a power greater than him, but that he still drinks beer at lunch because he likes the taste, and does not allow himself to get drunk. (Tr. 11/5/2021 at 95-96, 100-101).
He testified that he did not have anxiety attacks before he got sick. He last visited the ASSTR website 6-8 months ago. (Tr. 11/5/2021 at 104-107) After lengthy questioning, the Father ultimately acknowledged that the Mother's well-being is inextricably linked to the Child's well-being. (Tr. 11/5/2021 at 112).
On re-direct examination, the Father testified that he is currently prescribed 10 mg of Adderall three times per day. He takes one dose when he wakes up, one at lunch, and one in the early afternoon. He is not presently drinking alcohol. The last time that he had an alcoholic beverage was several months ago. He was previously arrested and convicted of a crime. After his arrest and prior to his conviction, he was incarcerated for eleven months. He had been indicted before that, and he pled guilty in February 2018 to "criminal contempt in the first" and a misdemeanor. As part of the plea agreement, he agreed to make admissions of sending emails to acquaintances of the Mother from an anonymous email. He feels that he took responsibility for his actions by making these admissions. The conditions given to him by the court when he was sentenced were that he was to be monitored by EAC-CRAN in Brooklyn, check in with them once per week, and follow whatever treatment they recommended at the time. They had him enter a behavioral health program at Rutgers. He complied with the treatments. (Tr. 11/9/2022 at 4-9).
The Father testified that he was monitored by EAC-CRAN only. He was on parole in New York for a month and then was transferred to New Jersey. He met with his parole officer on a regular basis. After he pled guilty, he returned to court to monitor his compliance with the conditions of his sentence. As part of his treatment, he went to talk therapy once a week, two behavioral health groups at a Rutgers facility in the evenings (although he usually went to three), a check in once a week at EAC-CRAN, and had to do a urinalysis once a week at Rutgers. He was reporting to parole once a month, and the parole agency also tested him with a urine analysis. There would also be random drop ins at his house to check on him, and he was required to let parole know if he was going out of state. The Father testified that he is no longer on parole, and that it ended about a year ago. (Tr. 11/9/2022 at 9-12).
The Father testified that he sent emails because he was anxious and because of substance abuse. He had a lot of "generalized anxiety" because he was worried about the Child, he was anxious about how the divorce was going, and worried about what was going to happen to the Child eventually and if it would be traumatic for her. He testified that he was already prone to anxiety since he was younger and "it got exacerbated." The Father suffers from panic attacks. The Father testified that he feels these panic attacks led to him sending the emails as he was starting to generally feel that the Mother was trying to hide something or might be "unconcerned" for the Child's wellbeing, and he would get into spirals of worry. When he was sober, he tried to think about what he could do to make sure that people around the Child were keeping an eye on her because he was not able to see her. (Tr. 11/9/2022 at 12-14).
He was going through panic attacks in March or April of 2016. The Father was not in therapy at that time. He is still in therapy, and he is allowed to call his therapist any time if he feels like he needs to talk that day, but he tries to see the therapist every two weeks. The therapist is not allowed to talk to him if he is in another state, and he travels for work, so he and the therapist schedule around this travel. In general, he sees his therapist every other Monday evening when it is possible for both of them. Those sessions last for 45 minutes. He is still seeing the same therapist who is an LCSW. (Tr. 11/9/2022 at 14, 16).
The Father testified that he has never been diagnosed with pedophilia tendencies or deviant sexual tendencies, and he has been evaluated for both. The last time he had a visit with the Child was in January 2019, supervised at CFS, and the visit lasted two hours. Prior to that, there had only been a lapse in visitation with the Child when he was incarcerated. When he was released, visitation resumed. He is not currently having visits with the Child but has been requesting them since January 2019. He asked his former attorney to inquire of opposing counsel regarding visitation, when he represented himself he inquired of opposing counsel, and he has also asked his current attorney to inquire. He is willing to engage in supervised visits with the Child and is still willing to. (Tr. 11/9/2022 at 18-21).
The Father testified that he would be willing to comply with "any conditions" to see the Child as long as they are not prohibitively expensive. He does not believe that he ever physically hurt the Child, endangered her, or neglected her. Dr. Yohananoff claimed that he had gotten drunk while caring for the Child in 2015, and that is not true. On the evening of that incident, he drove the Child home. While the Mother was in the hospital in 2015, he did all of the childcare. If he had to go out for a work meeting, his mother took care of the Child. He took the Child to the office a couple of times when he could not get someone to babysit. (Tr. 11/9/2022 at 21-24).
He is not currently being tested for drugs or alcohol, but he would agree to random testing as a condition of visitation with the Child. He has attended AA meetings in the past, but he found a "different system" that he has been using through a book called Rational Recovery. The program is different because it is secular and more about cognitive behavioral therapy. (Tr. 11/9/2022 at 24-25).
The Father testified that he is currently living with his parents, and he works for his father doing "tower and antenna work." His work schedule is variable because it is weather dependent. When the Father was asked what he meant by his response of "no more than anyone else" to the question if he has an addictive personality, the Father testified that he has a "tendency to overdo" unhealthy behavior, but he does not think that it is "any more than a normal person." He is attempting to deal with this by using Addictive Voice Recovery Technique ("AVRT") which he describes as paying attention "to what is going on in your head when you start to feel impulses and ignore that part of you and don't act on it." The Father testified that, for example, he has a tendency to overeat, and he feels stressed when that happens, so he makes sure to talk with his therapist about it and go back and analyze what happened to prevent it from happening again. (Tr. 11/9/2022 at 25-27).
The Father testified that subsequent to his sentencing, he has not attempted to contact the Mother by email. He testified that when he drank alcohol to the point of being impaired in the spring of 2022, he felt disappointed in himself, ashamed, and embarrassed. It has not happened again. The Father testified that as a child he suffered from cancer and had three years of chemotherapy for it. This has affected him presently because sometimes when he remembers friends of his who died he feels sad, but he tries not to dwell on it and has worked through most of the trauma in therapy. He has in the past suffered from PTSD and his understanding of how it manifests itself is his heart rate and body temperature go up, and he starts to feel an "objectless anxiety" that something bad is about to happen. However, when this occurs now it is "relatively minor" as he has coping mechanisms in place. He does not believe that any of these things would have any effect on his visitation with the Child. (Tr. 11/9/2022 at 27-29).
The Father testified regarding the incident of writing in pen on the Child's arm, and he remembers that he had a back and forth with the Child that led him to ask the visit supervisor if she had a pen that he could use to draw on the Child's arm, and the supervisor tossed him a gel ink pen. He asked the Child what she wanted him to put on her arm, and he wrote something. While he was drawing on the Child's arm, the supervisor was smiling. He wrote "W. loves daddy" with a heart around it. (Tr. 11/9/2022 at 29-32).
On re-cross examination by the Mother's attorney, the Father testified that after ten months of his plea agreement, he violated the agreement. The Father testified that Rational Recovery contemplates abstinence from alcohol use, but does not have any meetings, and promotes autonomy. The Father testified to a poem he wrote, which he read to the Child on a visit. (P-Exh. 9). He does not believe that he included the poem in a package of gifts intended for the Child. (Tr. 11/9/2022 at 33-34, 36, 38).
The Father testified that he has a colleague or friend named D.L., who he remains in contact with today. In the past year, he has visited D.L.'s home in Virginia twice for two days each time. At the time that he visited, D.L. was under house arrest related to charges that he transmitted child pornography. He did not know what level charge D.L. pled to, but he saw headlines of news articles related to D.L.' case. They never discussed D.L.'s plea. (Tr. 11/9/2022 at 42-43, 48-49).
On re-cross examination by the AFC, the Father testified that he is a "little bit" stressed and anxious today. He is on 10 mg of Adderall today, and last took it at 6:30 am. He plans to take his next dose with lunch. He does not plan to take a third does today because he got up early and it would keep him up late if he took it after court, and he is aware of a national shortage of Adderall so people should be stretching their prescriptions. He will be talking to Dr. XXXXXX tomorrow at 6:00 pm over video regarding his prescription and the national shortage. He has never met Dr. XXXXXX in person and Dr. XXXXX has been his doctor prescribing Adderall since March 2020. The Father testified that he had taken Adderall before that as well. He takes Adderall seven days a week, and he gets refills of his prescription once per month. There are 90 pills in a prescription. The last time he went to the doctor for an in-person examination related to Adderall was right before the pandemic when he was seeing a woman at the same office, but she has since left the office. The office is called Positive Reset and is in East Brunswick New Jersey. (Tr. 11/9/2022 at 49-53).
The Father testified that he stopped having beers at lunch after the hearing in November 2021 when he was talking to his attorney about it, and they agreed that he should stop drinking for the sake of the case and for himself. The Father explained that what he means by the "sake of the case" is it would be better for his health and for the future of seeing the Child. His understanding of the health effects of having beers at lunch is that it is high in calories and bad for the liver and kidneys. In 2021, he would not have had more than three beers at lunch but he could not remember how many he would typically have . (Tr. 11/9/2022 at 53-54, 58-60).
The court notes that during this portion of his testimony, the Father was evasive as to how many beers he used to have, as well as to whether he loses control with alcohol.
The Father testified that he had been thinking about stopping drinking beers at lunch and leaning towards that decision since Dr. Yohananoff seemed to think that it would be bad for the Father to drink at all, and the Father thought he was probably right. The Father today thinks that Dr. Yohananoff was right in saying that any alcohol consumption is bad for the Father, "in some ways." The Father testified that he is not an alcoholic. He believes that he has in the past been able to control his consumption of alcohol, but sometimes he has lost control of it by choice. (Tr. 11/9/2022 at 60-62).
The Father found Rational Recovery because a friend from college named Mr. E mailed him a book. He started reading this book in January 2022. The Father read the whole book. The part of the Rational Recovery method that made him think it was for him was that it reminded him of Eckhart Tolle's philosophy about the "pain-body." The Father testified that the concept is that there is a "beast inside of us" that urges addictions, and that Rational Recovery teaches how to step back and resist doing what it wants you to do. He also liked the fact that it was secular, and it had worked well for Mr. E.. To him, addictive voice recognition technique means recognizing when the addictive voice starts to try to talk you into doing something compulsively, which he still gets with overeating sometimes, but not with the internet. The Father plays a multiple-player video game called Forge of Empires every day, and also does the spelling bee and the Wordle every day on the New York Times app, but does not browse the internet every day. He reads the news online three days per week. The Father testified that he did some online AA meetings through January of 2022 but stopped when Mr. E. gave him Rational Recovery. (Tr. 11/9/2022 at 62-66).
Upon questioning by the court, the Father testified that he visited D.L. for two days. They played Nintendo video games at D.L.' house because he was not allowed to go more than 100 feet from the house. In terms of the interests that he and D.L. have in common, the Father testified that they went to the same college, like the same movies, have a similar taste in food, and like the same literature. D.L. got into cooking while he was on house arrest, so the Father and D.L. did a lot of elaborate meal preparation. (Tr. 11/9/2022 at 66-68).
The AFC began questioning the Father again, and the Father testified that he has spoken to D.L. in the month of November 2022 by phone. The Father testified that he believes that distributing videos or images of children engaged in sexual acts is harmful because it damages the lives of the children involved and their psyche. He believes that people use facial recognition technology to harass the victims even later in their lives and that it causes extreme psychological harm to the children involved. (Tr. 11/9/2022 at 69-71).
The Father testified that he does not know the last time he visited the ASSTR website and does not think that it still exists. The basis of this belief is that someone was "talking on Reddit." He read this in the spring or winter on a Reddit page related to a band called "Tool," which is a progressive rock band. He never went back to ASSTR to see if it existed as he had stopped visiting ASSTR because "all that stuff in the hearing last year...made me not want to think about reading the normal stories on there" and so he "lost interest." He is not reading or viewing a similar website. (Tr. 11/9/2022 at 71-74).
When discussing Rational Recovery, the Father testified that his understanding of the "beast inside" is that it is a subconscious part of everyone that seeks out harmful and addictive behaviors. He denied that one of his addictive behaviors was looking at ASSTR. He would describe the beast that he is controlling as when some temptation arises such as overeating. The other facets of the beast are temptations to drink, stay up too late watching television, driving faster than the speed limit and "a lot of little things," such as picking a scab off neurotically, or biting his nails, for example. He also uses this technique to distance himself from the voice inside of him telling him that it will not hurt if he uses marijuana, and that he has a tendency to get into irrational anxious thought patterns, so he uses this technique to manage this tendency as well. He uses "presensing" or grounding techniques to manage the "beast." (Tr. 11/9/2022 at 74-80).
When he drank in 2022, he drank German beer on tap in a bar with friends watching football. He had maybe four drinks. The Father testified that he has probably been in other bars since he stopped drinking, because sometimes they pick up food from bars for work. The Father testified that he met D.L. at St. John's college. The Father testified that the last time he opened the Rational Recovery book to read it was in September 2022. (Tr. 11/9/2022 at 80-82).
On re-direct examination, the Father testified during his visits with D.L., he did not read any books that talked about sexually deviant behavior, and did not discuss or read anything about child pornography. They did not play any pornographic video games. He did not decide to stop drinking beers at lunch solely because his attorney recommended that he stop; he wants to do everything he can to have a relationship with the Child and if that is something that could get in the way at all it was not worth it to him. Deviant sexual behavior is not one of his "beasts." (Tr. 11/9/2022 at 83-84).
The Mother's Case
The Mother's Testimony
The Mother testified that she did not write the emails that were purportedly from her and to the Father dated June 19, 2015, and that her first time seeing them was in court. (P-Exh 2). The Mother testified that she did not write the two comments on Jillzuccardy.com that are attributed to her. (P-Exh. 5). The Mother testified as to emails that the Father admits that he sent to various people, such as K.B., the former director of the Child's nursery school, T.R., one of the Child's teachers, S.A., a former colleague of hers at the laboratory in XXXXX University, which is the lab and institution where the Mother did her PhD, and E.V.F., one of the Child's teachers. (P-Exh. 3 ). (Tr. 11/9/2022 at 93-95).
In addition to links to the ASSTR website, below are excerpts from emails that the Father sent and spoofed to look as if the email came from the Mother:
"As [the Child] nursed herself down on my clit drinking the juice I squirted I was thinking of you... I want you to try her mouth too.... she had her entire hand in my cunt wiggling her fingers around too, I came so many times I can count."
"Hey E., I just got a great lapping from W.'s tongue and I'm exhausted. I wanted you to know I've been teaching her to suck cock and she would definitely be interested in trying yours if you're interested She's had a couple already and she almost choked on the cum but she can handle it anyway as long as you have the willpower to pull out and just spray on her face. Her adorable mouth sucked my cunt to about a dozen orgasms this evening <3 See you Monday if I don't hear from you sooner Yours, M.L."
"weve had a wild night with W. sucking all of us here. She's going to be a complete slut as soon as she even learns to talk. I want to share her with you, T.. Give me a wink or hint your'e interested. I feel so high from cumming to much right now I can barely think, but I want you to be joining us. best, M.L.:" (P-Exh. 3)
The Mother testified that she is opposed to the pending request by the Father for visitation with the Child because after hearing the Father's testimony and the testimony of Dr. Yohananoff and reading his report, there are "a number of things that are clear" to her. She has yet to see the Father take responsibility for his behavior, and even though he admitted to sending the emails, he has now walked that back saying that he did it in an alcoholic blackout state. She believes that he has minimized the effect of the emails, by testifying that he does not believe that he is an alcoholic and that he only stopped drinking as a result of these proceedings. Up until this trial commenced, the Father still visited the sites that he references in the "egregious emails." She is concerned about the behavior, lack of responsibility, and lack of insight he has, including not seeing that there may be a problem with associating with someone who pled guilty for trafficking child pornography. She is concerned with the Father's lack of respect for the legal system and the way he has conducted himself towards the attorneys and CFS. (Tr. 11/9/2022 at 96-97).
The Mother does not believe that it is healthy for the Child to have an on again/off again relationship with the Father. Without him taking responsibility for his behavior, it is not clear to her how the behavior will stop and why it would not simply continue. She also has concerns about the expertise and capacity for CFS to deal with this case. She thinks that it takes specialized expertise to recognize signs of grooming, and that, for instance, writing on a child's arm can be marginalized and minimized, but in fact it is part of a "bigger pattern that is concerning and alarming." The Mother testified that the Child turns eight tomorrow and her awareness of what is going on is very different than when she was younger. She is concerned about the psychological effects to the Child even in supervised settings. (Tr. 11/9/2022 at 97-98).
The Mother has concerns about the emails contained in P-Exh. 3 because the content of the emails is pedophilic ideation, which is alarming and concerning to her. She does not consider this behavior to be in the realm of what a normal person in a difficult time would engage in. She does not know where this stuff came from and has yet to receive an answer. (Tr. 11/9/2022 at 98).
The Mother testified that she does not want to lie to the Child and so the best way she has found to frame why the Child does not see the Father is that he has an illness and it makes him unsafe for the Child and the Mother to be around. She reassures the Child of the Father's love for her and tries to explain that until this illness is addressed, he is not a safe person to be around. She feels like she does not have the expertise to be able to know what it would take for her to support visits. If supervised visits were to commence, she would ask the court to order them in a therapeutic context and that the person who conducts those visits have an expertise in sexual deviancy to make sure the Child is safe. (Tr. 11/9/2022 at 98-99).
On cross-examination by the Father's attorney, the Mother testified that she suffered depression as a teenager. She manages this through medication. She is currently seeing a psychiatrist and a therapist. The Mother testified that she has known the Father since 2005. In April 2015, the Mother was admitted to XXXXXX as a result of postpartum depression. At the time, she was still married to the Father. She was in the hospital for ten days. During that period, the Mother's father came into town to take care of the Child; the Father and his mother were not caring for the Child. Immediately after her hospital stay in 2015, the parties separated. Since that time, the parties have not lived together. (Tr. 11/9/2022 at 100-103).
During the time the parties were together, the Mother was not aware of any deviant sexual behavior on the part of the Father, which she told Dr. Yohananoff. The Mother testified that she filed for divorce in July 2015. During the time they were together, the Mother knew that the Father had a drinking problem. The Mother told Dr. Yohananoff that she believed the Father drank in secret. It was her opinion that during their marriage, the Father had a drinking problem. The Mother testified that the parties fought about it a lot when they were married, but she did not know the extent of the drinking problem and how much the Father was drinking in secret. During discovery for their divorce proceedings, she saw credit card statements that indicated that the Father spent a significant amount of money at liquor stores, but she never saw the Father buying quantities of alcohol during their marriage that would have raised her suspicions. The Mother testified that she has had no contact with the Father outside of the courtroom since at least 2019. (Tr. 11/9/2022 at 103-105).
In 2015 when the parties separated, they agreed that the Father could have the Child for a few hours on a weekend day as long as his mother or some mutually agreed upon family member was present. On January 13, 2016, there was an order for supervised visitation issued by this court through CFS. In 2017 there were also visits pursuant to an order, which occurred on the weekends for three to four hours. There was a discontinuation of the visits, but then the visits started again in December of 2018. The Mother testified that visits occurred weekly between 2018-2019 before the Father was remanded back to prison in 2019. The Mother testified that while she was not privy to what happened during the visits, there were things that happened directly after the visits that concerned her. It was not the Child's behavior that concerned her. One of her concerns was the writing on the Child's arm, but there were others. (Tr. 11/9/2022 at 105-108).
The Mother testified that she saw two of the emails allegedly coming from her GMail account for the first time in court but received others from the IT help desk at XXX, or the recipients of the emails forwarded them to her to tell her that she was being hacked or spammed. These emails affected her employment in that it was deeply embarrassing and brought her co-workers and teachers into the "drama" of her "volatile divorce." She did not lose her position at XXX because of these emails. She did not have to take the Child out of the school as a result of the emails. (Tr. 11/9/2022 at 108-110).
The Mother testified that the emails contained in P- Exh. 3 were sent after they had commenced supervised visitation. The emails in P- Exh. 2 were sent prior to commencing supervised visitation. Supervised visitation occurred until 2019, but with breaks to deal with the emails and for the terms that the Father served in prison. (Tr. 11/9/2022 at 110-112).
The Mother does not believe the Father has taken responsibility for his behavior and that it is difficult to say what type of atonement it would take to make her feel that the Child is safe even in a supervised setting. In order to resume supervised visitation, the Mother would also ask that the Father demonstrate that he is in therapy for the actual issues of this case, specifically alcohol use and pedophilic ideations, not just overeating. During the time the parties were together, she was not aware that the Father was visiting sites like ASSTR. The Mother testified that she believes that even in a supervised setting the Father poses a threat to the Child. The Mother consulted a therapist before she began telling the Child where the Father is. She had taken the Child to see a child psychiatrist at the children's study center at XXX the last time that the visits stopped because the Father was remanded, which is where she began to learn about ways to approach addressing these issues with the Child from medical professionals. (Tr. 11/9/2022 at 112-117).
During cross examination by the AFC, the Mother testified that an additional reason why she would oppose supervised visits now is that the Father did not recognize the harm he has caused to the Child, noting that there were times in his testimony where the Father acknowledged the harm and times where he did not. (Tr. 11/9/2022 at 117-118).
On re-direct, the Mother testified as to her concerns during CFS visits. During one visit the Father asked to give the Child a gift, and it was a stack of over one-hundred photos of close ups of the Father's face. He also gave the Child a poem and she found the content alarming. (Tr. 11/9/2022 at 118-119; P-Exh. 9 ).
The poem written by the Father reads in part: "I hope you love gray days the way your Daddy does. A gray sky doesn't hurt our eyes. Everyone, even Emma, walks on a blanket of light and has no shadow on a gray day When from each other we are far away, I smile looking up at a sky that's gray because my heart beats in yours. I know you'll love gray days the way your Daddy does. I say that because I love you more than any day or night, and you feel the same way."
On re-cross examination by the Father's attorney, the Mother testified to the harms the Father has done to the Child, which include his behavior that has denied the Child a father figure in her life. The Mother testified that the Child is growing up with one parent as her caretaker, and that her academic career has been decimated by the Father because of the drama he brought about. The Mother testified that because she was accused of sexually assaulting the Child, she had anxiety and panic attacks surrounding bathing the Child, changing her, and showing her affection. Further, at fifteen months old the Child had to undergo a forensic evaluation for rape. (Tr. 11/9/2022 at 119-120).
Dr. Yohananoff's Testimony
Dr. Yohananoff's report dated October 22, 2020 was admitted into evidence as his direct testimony. (Court Exh. 2). The Father's attorney cross-examined him. He reviewed the EAC-CRAN report which is the case management program for Riker's Island, which only diagnosed the Father with ADHD, which is a mental health illness under the DSM V. He reviewed a report prepared by Dr. A.D. dated January 28, 2018, which indicated that the Father was receiving treatment for substance abuse and to address any mental health concerns. The Father was first at the Rutgers Partial Hospital Program, which made reports to the court regarding the Father's progress. The Father was receiving Cognitive Behavioral Therapy (CBT) for his mental health issues. When the Father was sent to the outpatient program for the Rutgers Partial Hospital, they addressed ADHD as a condition that needed to be addressed. The record that he reviewed also suggested a history of bipolar disorder, which he did not see in the Father when he interviewed him. He tried to reach out to the psychiatrist that made this diagnosis but he never heard back. (Tr. 11/10/2021 at 7-11).
He does not remember Dr. D.W.'s report specifically addressing the issue of pedophilia, and thinks that the focus of the report was on risk factors that tend to increase the risk for the Father's impulsive behavior, one being alcohol use. Dr. D.W. also discussed that the Father has an anxiety disorder that had an obsessive feature and difficulty maintaining boundaries when triggered, which Dr. D.W. diagnosed as impulse control and conduct disorder, which Dr. Yohananoff agrees with. (Tr. 11/10/2021 at 11-12).
Dr. Yohananoff testified that the outpatient program that the Father was referred to by the Rutgers Partial Hospital Program was Positive Reset. While the Father had made some progress, he was concerned that there had been no specific effort to address some of the Father's "really problematic behavior" such as the email he sent that appeared to be sent from the Mother involving some type of sexual behavior with the Child. Dr. Yohananoff also testified as to the CFS visits, which indicated to him that when things would not go his way, the Father would display the same type of control, impulsive, and obsessive behavior, like calling and emailing the CFS worker as much as 27 times in one day. (Tr. 11/10/2021 at 12-14).
Dr. Yohananoff testified that CBT therapy should ideally address anxiety and compulsiveness, but he did not hear anything from the Father's therapist that they applied this technique, and instead testified that from speaking to the Father's provider, their main focus of treatment was dealing with the Father's day to day anxiety and stress. While he is not an expert on sexual deviancy, he testified that the Father's behavior of sending emails allegedly from the Mother was "very troubling" to him. Even if the Father tested clean throughout a program period, his concern is that Father is not in a support program like AA and that at the time of his observation, the Father was drinking 24 drinks a day, which Dr. Yohananoff classified as an "incredible amount.". (Tr. 11/10/2021 at 14-16).
Dr. Yohananoff opined that the Father should have a system to monitor alcohol abuse and have a support system in place to have an ability to abstain from alcohol. While it is great that the Father has been taught coping techniques, the question is whether he will use those coping mechanisms when triggered as breaking bad habits is hard to do and contingent on the skill of the therapist and the Father's motivation. Dr. Yohananoff believes that the Father has not yet come to terms with what he has done, and that during his evaluation of the Father, he minimized the implication of sending the sexual emails and attributing them to the Mother, and minimized what it means to call ACS time and time again against the Mother. He spoke to the Father's Parole Officer Raymond Stanley who indicated that the Father had been very compliant with everything that was asked of him. (Tr. 11/10/2021 at 16-20).
Dr. Yohananoff reviewed CFS reports dated April 36, 106, April 20, 2017, and December 20, 2018 (D-Exh. E, F and G). The CFS reports indicated that the Child was apprehensive at first with the Father, but over time the visits were positive, and the Father behaved appropriately. During his interview with the Father, the Father reported early childhood trauma from having leukemia from ages 9 to 12, and as a result of this that he developed a high anxiety level. However, Dr. Yohananoff did not observe PTSD. Dr. Yohananoff observed the Father thinking and then acting on his ruminations rather than implementing coping skills, instead resorting to maladaptive behavior. (Tr. 11/10/2021 at 22-29).
When the Father gets anxious, he was unable to address the anxiety and would instead allow his anxiety to take over, resulting in him, for instance, violation the order of protection or calling CFS 27 times in one day. The Father believed that his allegations of the Mother's abuse were not being taken seriously and believed that he had to escalate things, which resulted in the Father sending the disturbing emails, which Dr. Yohananoff viewed as "very, very troubling." While he believes that the Father could have been in a "blackout state" from alcohol consumption, based on his interviews it appeared that the Father did recall sending the disturbing emails. He believes that the Father loves the Child, and suspects that not seeing her is very difficult for him. Whether this behavior will reoccur is dependent on how effective the Father's therapies are. Dr. Yohananoff testified that if visits were going to be implemented, the only way those would be able to start would be supervised by an agency like CFS. (Tr. 11/20/2021 at 29-32).
On cross-examination by the Mother's attorney, Dr. Yohananoff opined that the Father could be triggered if the Child is not responsive to him during visits. He testified that the contents of the emails are "extremely troubling" and that "[t]he fact that even with the benefit of insight four years later he resorts to" an explanation where he places blame on the Mother is troubling as well. As far as Dr. Yohananoff knows, no provider has addressed with the Father the possibility that the Father had sexual fantasies about his daughter. The Father sending disturbing emails to counsel and the court at midnight suggests that the Father has not yet addressed his impulsive and vindictive behavior. (Tr. 11/10/2021 at 34-38).
If the Father does not adequately address his behavior, Dr. Yohananoff has some concerns that the Father may lash out in an angry and impulsive way with the Child if he was rejected in any way by her. However, supervised visits would hopefully help protect the Child. Dr. Yohananoff testified that if the Father is using alcohol, it is probably one of the worst things that he can do to himself as it will inhibit him. Dr. Yohananoff testified that if the Father drinks beer at lunchtime and drank in excess on at least one occasion in the Spring of 2021, it would disturb him. (Tr. 11/10/2021 at 38-40).
He found the Mother's account that when she was hospitalized for post-partum depression, the Father started drinking instead of caring for the Child very concerning. Further, he finds it concerning that the Father still denies being intoxicated at that time, despite the fact that his mother had to come to assist because the hospital staff did not feel comfortable with him returning the Child home. The Father himself acknowledged going out with the Child, having a beer, and coming back to the hospital, which Dr. Yohananoff testified "speaks volumes back then of his lack of impulse control, poor judgment." Dr. Yohananoff testified that addictions of any kind are very difficult to break and people need a lot of support, and so the fact that the Father had not availed himself of any type of support group at the time of Dr. Yohananoff's evaluation does not help the Father. The Father visiting "alt sex" websites while this case is ongoing is poor judgment and suggests he does not have control over his behavior. Dr. Yohananoff classified the Father's maladaptive behavior as severe. (Tr. 11/10/2021 at 40-42).
Upon cross-examination by the AFC, Dr. Yohananoff opined that the Father not being in a support group and lack of acknowledgment of his continued problem with alcohol is a risk factor for the Child having visits with him. Dr. Yohananoff testified that "some type of at least a consultation with an expert in the area of sex addiction might be warranted given" the hypothetical he was presented with. He also testified that if the Father's self-centered perspective is pervasive, then he could not have sufficient insight into how his behavior might impact the Child. Dr. Yohananoff recommended an evaluation by a person who is an expert in sexual behavior/addiction to determine what, if any, services the Father needs to be treated, as well as a support group, and substance abuse evaluations. The CFS reports suggested that the Father was "pretty good" at responding to the Child's cues during supervised visits. (Tr. 11/10/2021 at 42-46; 48-51).
Upon re-cross examination by the Father's attorney, Dr. Yohananoff testified that there was no indication that anything the Child did ever triggered the Father. The Father fully acknowledged his alcohol consumption and it puzzles Dr. Yohananoff why he will not help himself and get a support group to help him sustain his recovery. (Tr. 11/10/2021 at 55; 57-58).
On re-cross examination by the Mother's attorney, Dr. Yohananoff testified that he would find it inappropriate and significant if the Father wrote "W. Loves Daddy" on the Child's arm versus the reverse "Daddy Loves W.." The latter expresses the Father's feelings for the Child, while the former is psychologically coercive and imposes his wishes and views on the Child, rather than allowing her to develop her own view, which is not healthy for the Child. Even if the Father did not physically harm the Child during a visit, she still could be at risk outside the confines of access, as assessment of risk is not limited to the confines of the room of the visit, and should include the aftermath of the visit. (Tr. 11/10/2021 at 58-61).
Upon re-cross examination by the AFC, Dr. Yohananoff testified that effective alcohol treatment requires acknowledgement of a problem, commitment to treatment and time. Failure to acknowledge the problem or saying that "you can drink one or two drinks at lunch" suggests the problem is not acknowledged. (Tr. 11/10/2021 at 61-62).
Upon questioning by the court as to the disturbing, detailed emails the Father sent, Dr. Yohananoff indicated that the Father first said he did not remember sending them, then he said that due to his concerns about the Mother being ignored he needed to escalate things, which implied full awareness of what he was doing. The court asked Dr. Yohananoff to opine as to the potential detrimental impact on the Child to permit even supervised visits given the Father sent these disturbing emails, and whether there is a risk that the Father could be in the room with the Child and sexually fantasizing about her. Dr. Yohananoff responded that the Father can be sexually fantasizing about the Child during the visits but the question is whether he acts upon them or puts boundaries in place; there is no guarantee that the Father does not author additional emails, etc. with such fantasies. Dr. Yohananoff opined that there is not necessarily risk to the Child as a victim of deviant sexual fantasies if the Father does not act on them, but noted that acts like writing on the Child's arm "W. loves Daddy" is concerning behavior that is an attempt to induce a desired behavior in the Child. Dr. Yohananoff opined that the Father sending emails such as the ones the Father sent qualify as "acting on the fantasy" given he crossed a boundary and sent that email out on the internet, making it public, which would have a detrimental impact on the Child if she knew about it. On re-cross examination by the Mother's attorney, Dr. Yohananoff testified that the Father tape recording the Child during a supervised visit is another example of the Father breaking boundaries and something a supervisor may not necessarily know about during a visit. (Tr. 11/10/2021 at 62-68).
The Mother's Summation
At the outset, the Mother notes that the Father has had no contact with the Child since January 2019 and litigation regarding the Father's parental access-which has been repeatedly interrupted and suspended due to the Father's criminal conduct and commission of family offenses against the Mother and the Child-has been ongoing since October 2015, nearly the entire life of the Child. The Mother recited the procedural and factual history of the case and argues that it is in the Child's best interests to continue suspension of the Father's parental access, relying on David W. v. Rosalind W., 62 A.D.3d 717, 718 (2d Dept. 2009) and Thomas v. Thomas, 35 A.D.3d 868, 869 (2d Dept. 2006), citing the Father's lack of impulse control, denial of alcohol dependency and never undergoing therapy as suggested by the psychologist. She further argues that the Father's "lukewarm" acceptance for prior behavior with justifications, is also a relevant factor in determining to suspend visitation, citing Samuel S. v. Dayawathie R., 63 A.D.3d 746, 747 (2d Dept. 2009).
While acknowledging that denying parental access is a dramatic remedy that denies the Child a father, the Mother contends that this deprivation is substantially outweighed by the emotional, psychological and physical risk to the Child, as well as to the safety, well-being and livelihood of the Mother, who is the Child's sole caretaker. She characterized the Father's pattern of impulsive behavior over seven years as "depraved," which included impersonating the Mother and sending sexualized emails to the XXXXX University Personnel that he admitted as part of a plea agreement. (Court Exh. 6). Despite this, the Father testified that he had "zero" memory of writing the emails. (Tr. 11/5/2021 at 57, 93-94).
According to the Mother, the Father minimized and justified the hundreds of emails he sent to the AFC, the Mother's attorney and court personnel when he testified that the emails were an "attempt to get an answer in any way" about resuming visits. (Tr. 11/5/2022 at 50, 54). The Mother reiterated the many disturbing emails the Father sent, some of which describe the Child engaging in sexual acts, which the Father explained away, in part as his attempt to get "other people" to look in on the Child.
The Mother points to Dr. Yohananoff's testimony, that found "troubling" the Father's avoidance of accountability even with the benefit of four years of insight. The Mother argues that the Father's explanation for his impulsive and harmful behavior-that he suffers from anxiety and fear of loss-is unavailing given he gave no explanation as to why he did not employ medication as a tool for dealing with the worst of his anxiety, and instead, according to Dr. Yohananoff, relying on excessive drinking. The Mother cites to Dr. Yohananoff's testimony that the Father's maladaptive behavior is severe and when triggered, exhibits impulsive, obsessive behavior and is not able to maintain proper boundaries.
The Mother argues that in its entirety, the evidence at trial established that is in not in the Child's best interests, and contrary to her safety and well-being for the Father to be granted parental access at this time, emphasizing the many instances of sexual and incestual ideation of the Child and other children. While granting the Father supervised access would mitigate overt sexual abuse of the Child, the Mother expressed concern over "grooming behaviors," such as when the Father wrote "W. loves Daddy" on the Child's arm, which Dr. Yohananoff testified had an "element of coerciveness" and was "not so healthy." The Mother maintains that these behaviors create a risk to the Child's psychological and emotional well-being that supervised visitation is insufficient to protect the Child as the Father has a pattern of misuse of supervised visitation, citing Grossman v. Grossman, 5 A.D.3d 486, 487 (2d Dept. 2004). To conclude, the Mother believes that until the Father focusses on developing insight into his past behavior and coming to terms with it as recommended by Dr. Yohananoff, it is in the Child's best interest for visitation to remain suspended.
The Father's Summation
The Father requests that the court issue final orders granting the Father supervised visitation, resuming unsupervised parenting time with the Child and awarding counsel fees as requested in his order to show cause. The Father believes that restoring his parental access with the Child would be in her best interests. He cites to portions of the CFS reports that he believes demonstrate the lack of any reports of child safety concerns or inappropriate behavior.
In his testimony and summation, the Father provided no support for his request for counsel fees. Accordingly, this request is denied.
The Father argues that denial of a parent's rights of visitation is a drastic remedy and that visitation may only be denied where there is evidence that the visitation would be detrimental to a child's welfare, citing David V. v. Rosalind W., 62 A.D.2d 717 (2d Dept. 2009). Notably, David V. v. Rosalind W. involved a neglect case, whereas here there has never been an ACS finding of neglect or inadequate guardianship against the Father.He further contends that a parent may not be deprived of his right to reasonable access unless "exceptional circumstances" have been presented to the court, citing Matter of Denberg v. Denberg, 34 Misc.2d 980, 986 (Sup.Ct. Queens Cty. 1962). The Father notes that he has completed all of the conditions pursuant to his plea agreement and that there is no justification for denying visitation.
The Father believes that there has been no evidence from any psychologist or mental health professional that points to any harm caused to the Child by the Father, including Dr. Yohananoff. The Father argues that the Mother's testimony as to alleged harms to the Child do not create "risk factors," and the only risk factors and harms raised by the AFC and the Mother's attorney are speculative. He contends that the only "real" harm to the Child has been the Mother's statements to her that the Father is sick as the reason why she has not been able to see him. The Father disagrees with Dr. Yohananoff's analysis regarding the incident where the Father wrote "W. [heart] Daddy" on the Child's arm. He notes that he has never been diagnosed as having "pedophilic ideation" and that he cannot get treatment for a non-existent order.
The Father points to the AFC's position in 2020 that stated that the Child is "curious" about seeing the Father in a supervised setting at some point in the future, but that is no longer the AFC's position in light of the Father's disturbing actions.
The AFC's Summation
The AFC argues that it would be in the Child's best interests to continue the status quo and deny the Father's motion for resumption of supervised visits with the Child. According to the AFC, the Father continues to pose a significant risk of harm to the Child as he has failed to address the underlying causes that led to his heinous conduct, and failed to acknowledge responsibility for his actions or understand the harm he caused. The AFC points to the Father's "dangerous impulsivity" during the pendency of this matter, such as abusing electronic communications, failing to abstain from alcohol and viewing "erotica" on the same website that hosted the offensive and dangerous pornographic material that the Father maliciously distributed using the Mother's name.
The AFC points to the Mother's testimony regarding opposing the Father's request for visits because he has failed to take responsibility for his behavior and has shown a lack of deference and respect for the law and court system. In further support, the AFC notes that Dr. Yohananoff testified to a number of services and evaluations to minimize risk to the Child but failed to address any of his problems or take responsibility, which is akin to resisting treatment. According to the AFC, Dr. Yohananoff voiced concerns that the Father perceives harm and potential harm to the Child "though an egocentric lens." (Tr. 11/10/2021 at 44).
For all these reasons, the AFC believes that the Father continues to pose a risk to the Child and that the Child's welfare and happiness would be furthered by continued suspension of visits with the Father unless he addresses the multiple risk factors that pose serious danger of harm to the Child's well-being. The AFC argues that based on the record before the court, exceptional circumstances exist and visitation would be inimical to the Child's best interest, citing Strahl v. Strahl, 66 A.D.2d 572 (2d Dept. 1979), aff'd 429 N.Y.S.2d 635 and Morgenstern v. Morgenstern, 65 A.D.2d 888 (3d Dept. 1978). In conclusion, the AFC urges the court to deny the Father's motion because he continues to pose an unreasonable risk of harm to the Child and therefore, resumption of visits is not in the Child's best interests.
Discussion and Findings of Fact
Whether to award visitation to a noncustodial parent is within the sound discretion of the court based on the child's best interests. Herrera v. O'Neill, 20 A.D.3d 422 (2d Dept. 2005). There is a rebuttable presumption favoring visitation with a non-custodial parent. Matter of Granger v. Misercola, 21 N.Y.3d 86, 90-91 (2013). A visitation determination should not be set aside absent a sound and substantial basis in the record. Id. at 91.
The court must also consider the effect of domestic violence upon the best interests of the children, together with such other facts and circumstances as the court deems relevant. Dom. Rel. Law § 240. The negative impact that domestic violence has on a child's well-being has been recognized by courts. See, Matter of Peters v. Blue, 173 Misc.2d 389,394 (N.Y.Cty. Fam.Ct., 1997); see also, Matter of Spencer v. Small, 263 A.D.2d 783 (3d Dept. 1999). In the instant matter, the Father has not had contact with the Child since 2019. He entered into a plea agreement whereby he admitted sending emails to the Mother's acquaintances that contained sexually explicit content about the Child and links to sexually explicit materials, and made those emails appear as if they were sent by the Mother. (Statement of Undisputed Facts at ¶18). Thus, the court will consider that domestic violence occurred in the parties' relationship when making determinations regarding custody and parental access.
In considering the totality of the circumstances as they have been presented during the course of the proceedings, the court has assessed the testimony, demeanor, and credibility of each witness. The court finds that the Mother testified credibly and her testimony was not impeached in any material way. She testified credibly regarding the Father's disturbing actions and the impact on her and concern for the Child, particularly given the Father's repeated and escalating inability to control his impulses.
On the contrary, the court found the Father's testimony to not only be incredible but extremely disturbing. The Father's testimony was evasive. He conveniently chose not to remember certain things and the excuses he gave for his behavior were simply not credible. The Father's repeated failure to control his worst impulses resulted in him sending pedophilic ideation emails about the Child and the Mother engaged in sex acts; there are no words to adequately describe the vile and disgusting content of these emails. The Father admitted to consorting with a friend who was under house arrest related to charges that he transmitted child pornography, while this action was still pending. He also admitted to recently visiting the ASSTR website, which demonstrates that he has not taken steps to address his troubling behavior. Despite all of this disturbing behavior, the Father failed to engage in therapy for pedophilic ideation. The court finds the Father's argument that he cannot be treated for a condition he was not diagnosed with to be unavailing. Equally troubling was the Father's behavior during supervised visits. The court credits Dr. Yohananoff's testimony that the Father writing "W. [heart] Daddy" on the Child's arm during a supervised visit to be indicative of psychologically coercive behavior.
The court further credits Dr. Yohananoff's testimony that the Father failing to accept responsibility and engage in treatment for substance abuse to be a risk factor, as well as his testimony indicating that the Child could be at risk even during supervised visits, given an assessment of risk is not limited to the confines of the room of the visit, and should include the aftermath of the visit. See Walker v. Sterkowicz-Walker, 203 A.D.3d 1167, 163 N.Y.S.3d 447, 448 (2d Dept. 2022). The court also finds valid the AFC's position that the Father's "dangerous impulsivity" continues to pose a significant risk of harm to the Child given he has failed to address the underlying causes that led to his heinous conduct or acknowledge responsibility for his actions.
For similar reasons as cited in the cases relied upon by the Mother, the court finds that there is a sound and substantial basis to deny the Father's request for visitation. David V. v. Rosalind W., 62 A.D.2d 717, 718 (2d Dept. 2009) (affirming the family court's denial of visitation to the father, citing a neglect finding from 1999, evidence that the father had "limited impulse control and coping skills, leaving him vulnerable to acting-out behaviors..," the forensic evaluators testimony, the daughter's opposition to visitation and the father's failure to participate in a sex-offender treatment program); Thomas v. Thomas, 35 A.D.3d 868, 869 (2d Dept. 2006) (affirming the family court's decision to deny visitation to the father, which was consistent with expert testimony and the attorney for the child's position, noting that the father "displayed a failure to understand the seriousness of his abusive behavior by refusing to admit that he had a substance abuse problem...."); Grossman v. Grossman, 5 A.D.3d 486, 487 (2d Dept. 2004) (affirming the denial of visitation, noting that the father would "use supervised visitation as a means to continue a pattern of threats, intimidation, and false claims of abuse, which would subject the children to endless investigations"); see also, Matter of M.K. v. H.M., 209 A.D.3d 471, 472 (1st Dept. 2022) (affirming the family court's decision to suspend visitation with the father in part because the father "blamed and vilified the mother for the problems in the father-daughter relationship"); Williams v. Williams, 209 A.D.3d 745, (2d Dept. 2022) (the father's parental access petition was denied without a hearing given his failure to appreciate the consequences of alleged physical abuse of the child and the child's position);.
Here, the Father has repeatedly demonstrated his inability to control his impulses. Further, he has failed to seek appropriate treatment and acknowledge the harm that he has caused. His testimony was unconvincing and lacked remorse - at one point he even denied sending the grotesque emails that he admitted to in his prior plea agreement. The cases cited by the Father are inapposite. Matter of Denberg v. Denberg, 34 Misc.2d 980 (Sup.Ct. Queens Cty. 1962) is a relocation case where there were no allegations of abuse or deviant behavior. The court has grave concerns about exposing the Child to potential harm by the Father -even in a supervised setting-given his demonstrated dangerous behaviors, particularly given that the Father has not addressed the issues underlying his behavior and the Child has had no contact with the Father since 2019, which is almost half of her young life.
For all of these reasons, and in particular Dr. Yohananoff's testimony and the AFC's position, the court finds that exceptional circumstances exist to deny the Father's request in that it would not be in the Child's best interests and detrimental to her welfare to have visitation with the Father at this time.
Accordingly, it is therefore, ORDERED, that the Father's order to show cause is denied in its entirety, and therefore visitation remains suspended, and it is further
ORDERED, that any relief not expressly granted herein is denied.
This constitutes the decision and order of this court.