Anthony A. v Valerie C.

[*1] Anthony A. v Valerie C. 2013 NY Slip Op 51200(U) Decided on June 3, 2013 Family Court, Bronx County Pitchal, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 3, 2013
Family Court, Bronx County

In the Matter of a Visitation Proceeding Anthony A., Petitioner,

against

Valerie C., Respondent.



V xxxx/12



Gigi Parris, Esq.

Bronx Defenders

Family Defense Practice

860 Courtland Ave.

Bronx, NY 10451

Counsel for Anthony A.

Joseph Moliterno, Esq.

670 White Plains Rd., Ste 207

Scarsdale, NY 10583

Counsel for Valerie C.

Judy Ocasio, Esq.

Legal Aid Society, Juvenile Rights Practice

900 Sheridan Ave.

Bronx, NY 10451

Attorney for the Child

Erik S. Pitchal, J.

I.Introduction

In this proceeding pursuant to Article 6 of the Family Court Act, Anthony A., the father of the nine-year-old child, Gary [FN1] C. A., petitions for an order of visitation with his son. Gary's [*2]mother, respondent Valerie C., opposes all visits.

The Court conducted a fact-finding hearing on April 24, 2013; May 10; and May 20. The Court heard testimony from the petitioner, the respondent, and the supervisor at the agency where the child receives therapy; received petitioner's exhibit 1 in evidence; and heard summations from counsel. Based on the record before it and for the reasons stated below, the Court concludes that Mr. A. is entitled to visits with his son and enters an appropriate order.

II.Factual Findings

Many of the relevant facts are not disputed by the parties. Mr. A. and Ms. C. had a romantic relationship and lived together for some time before Gary was born, though by the time of his birth in 2004 they were no longer involved.While Mr. A. testifed that he came to see the child in the hospital soon after he was born, Ms. C. denied this. The parties did agree, however, that Mr. A. never saw Gary again, except for one visit in approximately February 2012, when the boy was just shy of eight years old, and that this has been the only father-son interaction his entire life.

Additionally, the parties agree that their relationship is non-existent and filled with a history of recrimination and ill will, to put it mildly. Mr. A. testified that Ms. C. has a violent, confrontational attitude with him, and that he kept away from her and Gary in part because he did not want to deal with her argumentative and volatile nature. He testified that he would occasionally keep in touch with Ms. C.'s extended family, who would urge him to stay away for the same reason.

For her part, Ms. C. testified that during their relationship, Mr. A. was "maliciously abusive" towards her. He would "choke me, urinate on me, beat me with sticks and belts," and she had to be hospitalized "many times." She asserted that he kicked her out of the home when she was pregnant with Gary, though she later testified that she left him due to the abuse she suffered while pregnant. With a tone and demeanor that can best be characterized as resentful, Ms. C. said that she refused to permit Mr. A. to see Gary for all those years because of how he had treated her. "After he treated me like garbage, then he thought everything would be okay [and we could] let bygones be bygones, but that's not how it works."

Mr. Andindo testified as to several other reasons that he also stayed away from Ms. C. and Gary. First, ACS had advised him soon after the child's birth that he should do so, due to the domestic violence history between the parents. Second, he testified that he had some doubts about whether he was in fact Gary's biological father. On cross-examination he conceded that he hoped that over time he would be able to see a physical similarity between the child and himself, to provide some confirmation of paternity. Third, he noted what he called "my own barriers": using and selling drugs, which led him to periods of incarceration as well as, more recently, successful completion of a substance abuse rehabilitation program.

Mr. A. testified that he has not provided financial support for Gary. He stated that he occasionally tried to buy items for the child, but Ms. C. would throw them away or give them to [*3]other family members, though the basis for this knowledge was not made clear in his testimony.

In March 2009, the Administration for Children's Services initiated a child protective proceeding against Ms. C. regarding her care of Gary. The child was temporarily remanded to ACS custody. The Court made a finding of neglect based on Ms. C.'s admission that, while caring for the child, she used alcohol to the extent that she lost control of her actions, and was not in an alcohol rehabilitation program at the time. Following a dispositional hearing, the child was placed with ACS. In March 2011, a termination of parental rights proceeding was commenced. However, progress on family reunification occurred soon thereafter, and the Court entered a suspended judgment on the termination docket in February of 2012. A trial discharge of Gary to his mother's care commenced in the summer of 2012, and, following the expiration of the suspended judgment in the termination case in February 2013, full legal custody was restored to Ms. C. in March.

It was during this period of Gary's placement in foster care when Mr. A. took more assertive steps to have a relationship with his son. He testified that on the advice of Ms. C.'s relatives, he initiated a paternity proceeding, to determine with certainty whether Gary was his son. That case was filed in August 2011, but issue was not joined until November 2011. Meanwhile, the child was placed in the kinship foster home of his maternal aunt, and Mr. A. testified that the aunt made arrangements with the foster care agency (Children's Village) for Mr. A. to visit Gary at the agency's office.

Mr. A. had one visit with Gary in February 2012. The parties dispute somewhat why he did not have more visits after that. February 2012 was, as Mr. A. put it, around the time that Ms. C. was "getting her rights back," an observation confirmed by the Court's review of the Article 10 and TPR docket entries. Mr. A. testified that Ms. C. denied he was Gary's father, and his further attempts to set up more visits with the agency were fruitless, which he attributed mostly to Ms. C.. On cross-examination he stated that around this time, he gained employment, and this interfered with his ability to visit the child at the agency. He claimed that he explained this to the agency, but that when his schedule later allowed for the visits to resume, Ms. C. refused to bring the child again. For her part, Ms. C. testified that she did cooperate with the first visit, but after that, Mr. A. failed to show up for scheduled visits, and through her testimony and demeanor on the witness stand she made it clear that she did not really believe Mr. A.'s explanation of employment. Thus, she did not cooperate when he later requested for visits to recommence.

In any event, in June 2012, DNA test results were received, confirming that Mr. A. is Gary's biological father, and an order of filiation was entered. In August 2012, Mr. A. commenced this visitation proceeding case because he "wasn't getting anywhere with setting up visits."

In addition to her testimony about her volatile relationship with Mr. A., Ms. C. testified that another reason she opposes visits is that Gary "only knows one father." However, there was no further testimony from Ms. C. or other evidence about who this "father" might be. It should also be noted that no equitable estoppel argument was made by either Ms. C. or the attorney for the child during the paternity proceeding, and there is simply no factual record to support a [*4]finding that another man has played the role of father to Gary in any meaningful, sustained way.

The Court finds that there is insufficient evidence on this record to conclude that the parties' history includes domestic violence between them that is so severe as to call into question the safety of the child should visits be commenced between Gary and his father. Ms. C.'s testimony concerning Mr. A.'s asserted abusive behavior was not corroborated by any external evidence. Nor did Ms. C.'s counsel cross-examine Mr. A. about any specific incidents of abuse. On the other hand, Mr. A.'s counsel did not recall him in a rebuttal case to refute Ms. C.'s testimony. In any event, there was absolutely no testimony that Mr. A. was ever abusive to her in front of the child, and no evidence whatsoever that he has been abusive in front of or towards any other child. The vague assertion that he was "abusive" while she was pregnant with Gary is insufficient to support a conclusion that the child would be in danger, today, to visit with his father.

Moreover, the Court finds that both parents have successfully rehabilitated themselves from the various problems that plagued them earlier in their lives. Mr. A. admitted to having a history of drug use and criminal activity related to drugs, but he submitted evidence that he completed a drug rehabilitation program and provided unrebutted testimony that he has not had trouble with the law since entering that program. As noted above, Ms. C. admitted in open court to neglecting Gary and faced the possible termination of her parental rights, but she completed her service plan to the satisfaction of ACS and the Court and had full legal custody of Gary restored earlier this year.

Notwithstanding the progress and success that each parent has had in overcoming their respective personal problems, it is obvious from the record that the acrimony and bitterness they had for each other before Gary was born has not abated over time. If anything, Mr. A. and Ms. C. are even angrier at each other now than before. The record is also clear that Ms. C.'s personal animosity towards Mr. A. is driving her decision to oppose visits between him and their child.

Indeed, there is no evidence in the record to suggest that visits would be harmful to the child because of anything specific to Mr. A.. Mr. A. testified credibly that he understands that if visits are granted, he will have to build a relationship with a child who does not know him, and he would seek to get to know his son's likes and dislikes. Gary was receiving therapy from a social work intern for the last year, whose supervisor testified that her agency does not make recommendations regarding custody and visitation. Mr. A. testified that if he learned that his son has any kind of problems, he would consult with the therapist and do some research so that he knows how to deal with whatever the issue may be. The only assertion of harm from visits offered by Ms. C. is that Mr. A. is a stranger to the child.[FN2]

[*5]III.Legal Analysis

Ordinarily, non-custodial parents have the right to visit their children, "almost as a matter of course." Weiss v. Weiss, 52 NY2d 170, 175 (1981). Indeed, there is a presumption that parental visitation is in the best interests of the child. Granger v. Misercola, — NY3d —, 2013 NY Slip Op. 03021 (2013). The total denial of visitation to a legal parent is "drastic." Id. at 6 (quoting Herb v. Herb, 8 AD2d 419, 422 (4th Dep't. 1959)). The party opposing visits has the burden to establish, by a preponderance of the evidence, either that visits would be harmful to the child or that the petitioner has "forfeited" the right to visit. Id. at 3-4. As Mr. A. has established paternity and has filed a visitation petition, Ms. C. bears the burden of overcoming the presumption that visits between Gary and his father are in the child's best interests.

A.Harm

To the extent that Ms. C. asserts that her conflict with Mr. A. would make visits harmful, the law does not support her position. Parental conflict does not amount to the sort of "harm" contemplated by the law in this context and is insufficient to overcome the presumption that visits are in the child's best interests. Schack v. Schack, 98 AD2d 802 (2d Dep't. 1983). To support the drastic step of prohibiting visits with a legal parent, there must be sworn testimony or documentary evidence of the asserted harm. Granger at 6. Certainly if it were established that a non-custodial parent had been convicted of a crime of violence against the custodial parent, or another child, a court could conclude that visits with the subject child might be harmful. See, e.g., Dom. Rel. L. § 240(1-c)(a); Ceasar A.R. v. Raquel D., 179 AD2d 574 (1st Dep't. 1992); Robbins v. Albany Co. Dep't. of Soc. Svcs., 179 AD2d 908 (3d Dep't. 1992).[FN3] There might be other actions against persons other than the subject child, short of a criminal conviction for violence, that could lead to an inference that the subject child would be harmed from visiting the perpetrating party. Additionally, if the non-custodial parent does not understand or appreciate the emotional impact that visits could have on a child, especially if there is not a pre-existing parent-child relationship, an inference of harm could possibly be drawn.

As noted above, though, the factual record here is insufficient to establish that any actions by Mr. A. against Ms. C. nine or more years ago would amount to harm to the child to have visits with Mr. A. today. In terms of any lack of appreciation for the impact on Gary of being told that Mr. A. is his father, the Court is satisfied from Mr. A.'s testimony that he understands that he will not have a father-son relationship automatically from the moment he first sees Gary, and that he will have to proceed slowly to build one. While it will no doubt be surprising and confusing to Gary to be introduced to his father for what he may experience to be the first time (as he may not recall their meeting from over a year ago), the Court cannot say that it would be so harmful as to be a basis for prohibiting the visit from even occurring. [*6]

B.Forfeiture

Ms. C. places more emphasis on the argument that Mr. A. has forfeited his right to visit Gary. She makes three basic claims regarding forfeiture. First, Ms. C. asserts that insofar as Mr. A. failed to provide any financial support to the child for the first nine years of his life, he is not entitled to visit the child now. However, the law is clear that the right to visit is not ordinarily contingent on complying with the obligation to pay child support. Resignato v. Resiganto, 213 AD2d 616 (2d Dep't. 1995). It should be noted that Ms. C. never brought a child support claim against Mr. A., as she wanted nothing to do with him and doubted that he was the father for many years.

Second, Ms. C. argues that Mr. A. did not take full advantage of the opportunity to visit during 2012, once visits were arranged at the foster care agency. However, the failure to take advantage of prior visitation rights does not amount to forfeiture of those rights in the future. Rodriguez v. Medina, 277 AD2d 144, 145 (1st Dep't. 2000); Strahl v. Strahl, 66 AD2d 571, 577 (2d Dep't. 1979). Thus, whether or not Mr. A. had a job that prevented him from having more visits with Gary after the one in February 2012 is irrelevant to the legal question. It is sufficient to observe that at some point after the February 2012 visit, the agency and/or Ms. C. prevented him from having any more visits, causing him to initiate this proceeding in August of that year.

A lengthy period in which a non-custodial parent fails to visit is another matter, however; Ms. C.'s third argument is that one visit in nine years is tantamount to abandonment. She points to Mr. A.'s concession that he created his own "barriers" to having a relationship with Gary, such as his use of drugs and his criminal activity, and his own stated uncertainties about whether the child was actually his. It is certainly the case that a non-custodial parent's failure to visit for many years is a factor to consider in determining the child's best interests, though typically courts look to other factors as well, such as the quality of the visits that did occur and the vehemence with which the children may oppose resumption. See Jones v. Jones, 155 AD2d 542 (2d Dep't. 1989); Heyer v. Heyer, 112 AD2d 539 (3d Dep't. 1985).

Ms. C. points to statutory definitions of abandonment and argues that based on the facts of this case, the child could have been freed for adoption without Mr. A.'s consent being required. Soc. Svcs. L. § 384-b(5); see also Dom. Rel. L. §§ 111(1)(d) and (2)(a). The relevant S.S.L. section provides:

For the purposes of this section, a child is "abandoned" by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.

Soc. Svcs. L. § 384-b(5)(a). There is some support for the concept of analogizing a visitation proceeding to a termination proceeding. Matter of Isaiah J., 17 Misc 3d 1121(A), 851 N.Y.S.2d 67, 2007 NY Slip Op. 52094(U) (Kings Co. Fam. Ct. 2007). [*7]

However, there are two reasons that the analogy of "forfeiture" in the visitation context to "abandonment" in the adoption context fails in this particular case. First, the statutory definition of abandonment includes the requirement that the parent not be "prevented or discouraged" from visiting and communicating with the child. Here, the evidence is uncontroverted that Ms. C. wanted to have nothing to do with Mr. A. from the moment their relationship ended, and she wanted him to have nothing to do with Gary. While he might have tried harder over the years to be part of his son's life, Mr. A. would most likely have been stymied at every turn by Ms. C., absent court involvement.

Second, if this case had been before the court in an adoption posture — for example, if Ms. C. had married another man and if her husband wished to adopt Gary — then it is possible that she would have a stronger argument. That was the situation in Quillon v. Walcott, 434 U.S. 246, 248 (1978): the biological father never had custody of the child and did not regularly support or visit him (though he did appear on the birth certificate), and the step-father wished to adopt. While he received notice of the proposed adoption, Mr. Quillon's consent to it was not required by state law, and the Supreme Court held that the statute as applied to him was not unconstitutional.[FN4] Cf. Lehr v. Robertson, 463 U.S. 248 (1983) (holding that biological father's filing of paternity suit does not entitle him to notice of an adoption proceeding where he has failed to establish a relationship with the child and did not qualify as a "notice father" under any provision of D.R.L. § 111-a).

Of course, not only is this case not in an adoption posture, but there is no evidence that another man has played the role of father to Gary in lieu of Mr. A., other than a stray remark in Ms. C.'s direct testimony that the boy "knows only one father," someone other than Mr. A.. Certainly there was no equitable estoppel defense to Mr. A.'s paternity claim; presumably if there had been facts to support such a defense, it would have been raised. Thus, the "abandonment" analogy does not advance Ms. C.'s cause. Mr. A. is still the boy's legal father, and the presumption that visits are in the child's best interests must still be overcome.

Sound policy bases — as well as common sense — are consistent with the law in this matter. Insofar as no other man has stepped into the father role, it makes little sense to forever block Mr. A. from visiting Gary on abandonment-like grounds. His presence in Gary's life would not disrupt an intact family. It would appear that under these circumstances, Gary has the right to know who his father is and build a relationship with him. Indeed, having experienced foster care (albeit in a kinship foster home), establishment of a relationship with a second parent ought to be even more important to the child's overall development.

In sum, the Court concludes that Ms. C. has failed to rebut the presumption that visits between Mr. A. and Gary would be in the child's best interests, as she has not proven by a [*8]preponderance of the evidence either that such visits would harm the child or that Mr. A. has forfeited his parental right to visit.

IV.Conclusion

For the foregoing reasons, the Court concludes that visits between Mr. A. and Gary would be in the child's best interests. Because they do not have a relationship currently, and in light of the child's age, it is best for Gary if the introduction to his father occur slowly, carefully, and in a therapeutic setting. As the Court does not have sufficient information to make a specific final order, the matter will be set down for further hearing.

IT IS HEREBY ORDERED:

The parties are directed to confer with each other concerning the logistics of gradual, therapeutically supervised visits. Counsel should make inquiries of the child's therapist concerning the best way to introduce to Gary the fact that he will be visiting with his father. Counsel should also inquire of the therapist as to her ability and willingness to 1) supervise visits between the child and his father and 2) provide reports to the parties and the Court concerning those visits. In the event the current therapist is unwilling or unable to participate in the visiting process, counsel should come to the next court date with alternative ideas for implementation of the Court's decision in this matter.

Counsel should confer with the case coordinator by the close of business on June 4, 2013, to pick an adjourn date within the next three to five weeks.

Dated: June 3, 2013ENTER

_____________________________________

Hon. Erik S. Pitchal Footnotes

Footnote 1: A pseudonym.

Footnote 2:It should be noted that the attorney for the child supports the father's petition. Initially, the respondent requested the Court to conduct a Lincoln hearing, but later determined that because the child does not know Mr. A. and is unaware of these proceedings, if the Court ultimately dismisses the petition the Lincoln hearing itself could be the cause of harm. The attorney for the child agreed that a Lincoln hearing would be inadvisable, and none was conducted.

Footnote 3:Incarceration itself (depending on the crime) is not grounds for suspension of parent-child visits. See, e.g., Lopez v. Lopez, 212 AD2d 710 (2d Dep't. 1995). Mr. A. is not presently incarcerated.

Footnote 4:The Supreme Court later held that for a biological father who did have a substantial relationship with the child but was never married to the mother, D.R.L. § 111 was unconstitutional, because the statute did not provide him the right to consent to an adoption by the step-father. Caban v. Mohammed, 441 U.S. 380 (1979).