Matter of C.S. v A.L.

[*1] Matter of C.S. v A.L. 2017 NY Slip Op 50533(U) Decided on April 19, 2017 Family Court, Bronx County Taylor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 19, 2017
Family Court, Bronx County

In the Matter of C.S., Petitioner,

against

A.L., Respondent.



REDACTED



Debbie Jonas, Esq., Bronx Defenders, for the Petitioner-mother

Dana Stricker, Esq., Assigned counsel for the Respondent-father

Patricia B. DeCola, Esq., Assigned counsel for the child M.L.

Alison Holstein, Esq., the Legal Aid Society, counsel for the children C. and J.
Gilbert A. Taylor, J.

On February 16, 2017, the Petitioner-mother C. S. [hereinafter "the Petitioner"] filed a motion [hereinafter "Motion No.1"] seeking an order appointing a forensic evaluator to conduct an evaluation of the parties, the Petitioner, the Respondent-father A. L. [hereinafter "the Respondent"] and the subject child M. L., born on July 24, 2009. On March 2, 2017, the Respondent filed an affirmation in opposition. On March 13, 2017, the Petitioner filed a reply affirmation. On March 13, 2017, the Petitioner filed a motion [hereinafter "Motion #2"} seeking a finding of civil contempt against the Respondent for alleged failure to comply with the court's [*2]order of visitation and contact between the Petitioner and M. L., fining the Respondent for the Petitioner's costs and expenses and $250.00 in addition and compelling the Respondent to comply with the court's orders. On March 29, 2017, the Respondent filed a cross-motion to modify the court's December 15, 2016 to state that the Respondent shall use his best efforts to facilitate telephone contact between the Petitioner and the child, excusing the necessity of an affidavit in support from the Respondent, denying the Petitioner's contempt motion, and an affirmation in opposition to the contempt motion. On March 30, 2017, the Petitioner filed an affirmation in opposition to the Respondent's cross-motion and reply to the Respondent's affirmation in opposition. On April 7, 2017, the Attorney for the Child filed an affirmation in support of the Petitioner's contempt motion. No other responsive papers were submitted on all motions.

Procedural History/Factual Findings:

On September 23, 2014, the Petitioner filed a petition for custody of the subject child M. L. At that time, the subject child was residing with the Respondent. There was already an Article 10 proceeding before the Hon. Karen I. Lupuloff, where both parties submitted to the court's jurisdiction under Section 1051(a) of the Family Court Act. When the parties separated in September of 2013, the Respondent moved out with M. L. Their other two children, C. and J., remained in the Petitioner's physical custody. On October 27, 2014, Petitioner's petition was heard before the Referee Juanita E. Wing and service was ordered on the Respondent. The matter was adjourned to December 12, 2014. In December of 2014, the child C. alleged that the Respondent sexually abused her and an abuse petition was filed on December 4, 2014. Judge Lupuloff ordered a remand of M. L., removing her from the Respondent's care and issued a temporary order of protection against the Respondent. The children C. and J. were released to the Petitioner. On December 12, 2014, Judge Lupuloff ordered agency supervised visitation for both parties with M. L. and adjourned the matter to December 17, 2014. On December 17, 2014, issue was joined on the neglect docket and the Petitioner asked for a hearing pursuant to Section 1028 of the Family Court Act seeking a return of the child to her. Such request was denied as the child was residing with the Respondent at that time. Regarding Petitioner's petition, it was on before Referee Rosanna Mazzotta on December 17, 2014, who referred to matter to Judge Lupuloff to join the pending abuse petition.

The matters were adjourned to April 8, 2015 for a hearing Pursuant to Section 1061 of the Family Court Act seeking to modify the remand, a permanency hearing and status on the custody docket. The Petitioner appealed Judge Lupuloff's denial of the 1028 hearing. The First Department stayed Judge Lupuloff's order, allowing the 1028 to proceed. On February 4, 2015, the matter was before Judge Lupuloff pursuant to the First Department's decision and the matter was adjourned to February 9, 2015 for a 1028 hearing. On February 9, 2015, the Petitioner withdrew her application for a 1028 hearing ant the matter was adjourned for a conference with the Judge's Court Attorney to March 16, 2015. On March 16, 2015, the matter was conferenced and adjourned to May 13, 2015 for fact-finding and a permanency hearing. On April 23, 2015, the matter was on for five Orders to Show Cause regarding the child C., which were granted and the matter was adjourned to May 13, 2015. On May 13, 2015, the matter did not proceed to trial, as the Administration for Children's Services [hereinafter "ACS"] was not ready to proceed, and the child was paroled to the Respondent with ACS supervision. Judge Lupuloff ordered therapeutic visitation with M. L. once weekly and liberal day visits supervised by ACS or an ACS-approved resource and the matter was adjourned to August 13, 2015 for status and to set a [*3]fact-finding date. On May 20, 2015, the matter was before the court because the child C. went AWOL. On August 13, 2015, ACS withdrew its abuse petition against the Respondent. The matter was adjourned to September 22, 2015 for a conference with the Judge's Court Attorney and October 6, 2015 for a visitation hearing and to pick fact-finding dates. On September 22, 2015, it was reported at the conference that visitation was not occurring and that therapeutic visitation through the New York Society for the Prevention of Cruelty to Children [hereinafter "NYSPCC"] was not working out and the matter was adjourned to October 6, 2015. On October 6, 2015, on consent, the Petitioner received an adjournment in contemplation of dismissal [hereinafter "ACD"] for twelve months with ACS supervision. The Respondent was ordered to comply with visitation. The matter was adjourned to November 17, 2015 for a conference with the Judge's Court Attorney and to January 29, 2016 for status on the ACD, visitation and the custody dockets. On November 17, 2015, it was reported at the conference that the child C. returned to the Petitioner's care, that M. L. refused to see the Petitioner and that ACS would confer with M. L.'s therapist on the best way to proceed. The matter was adjourned to January 29, 2016. On January 29, 2016, a settlement conference was held and it was reported that the Petitioner was compliant with the ACD condition, but missed three visits without calling to cancel. The temporary order of visitation was modified to twice month agency supervised with the Petitioner required to confirm 24 hours in advance, and only to occur if and when M. L.'s therapist deems it appropriate. The matter was adjourned to March 8, 2016 for a conference with the Judge's Court Attorney and to May 3, 2016 for fact-finding on the custody matter. On March 8, 2016, the matter was administratively adjourned to May 3, 2016. On May 3, 2016, the court took judicial notice of prior orders of Judge Lupuloff and adjourned the matter to May 9, 2016 for fact-finding.

On May 9, 2016, a hearing commenced regarding the Respondent's request to suspend visits between the Petitioner and M. L., where the ACS Child Protective Specialist [hereinafter "CPS"] Mr. A. testified on direct and cross-examination. The matter was adjourned to August 1, 2016 for a continued hearing. On August 1, 2016, it was reported that a brief focused assessment by Mental Health Services [hereinafter "MHS"] did not occur and that M. L. missed some therapy sessions. Testimony of Mr. A. continued and the matter was adjourned to August 4, 2016 for a continued hearing. On August 4, 2016, the brief focused assessment on the issue of visitation by MHS did not occur and the court ordered that it be completed by November 30, 2016. The matter was adjourned to August 11, 2016 for a continued hearing. On August 11, 2016, no testimony was taken. It was reported that NYSPCC would be available for therapeutic visits and that the Attorney for the Child would speak to M. L. about visitation. The matter was adjourned to November 30, 2016 for a continued hearing. On November 30, 2016, the MHS assessment was received for the Judge to review prior to distribution and the matter was administratively adjourned to December 5, 2016 for a continued hearing. On December 5, 2016, the MHS report was distributed to all counsel. Counsel indicated that they would be seeking forensic evaluations. Testimony of Mr. A. was completed and the matter was adjourned to December 8, 2016 for status. On December 8, 2016, counsel for the Respondent was relieved and another attorney was appointed for the Respondent, who is now current counsel. The Respondent informed the court that he does not agree with forensic evaluations. Parties agreed that the Petitioner would have telephone correspondence with M. L. and the matter was adjourned to December 15, 2016 for status. On December 15, 2016, it was reported that two phone calls took place and the second call went better than the first. Telephone contact was [*4]ordered at least weekly and M. L. was allowed to speak with her siblings. The matter was adjourned to March 27, 2017 for fact-finding. On March 27, 2017, the fact-finding did not proceed, as the Respondent was allegedly in Colorado tending to his mother, who was ill. The Petitioner disputed this and the court ordered the Respondent to present proof to substantiate his absence by April 19, 2017. The court further ordered that replies to the Petitioner's motion be submitted by April 7, 2017 and that any responses to the replies be submitted by April 13, 2017. It was reported that no phone calls took place between Petitioner and the child since the last court date. The Attorney for the Child reported that M. L. told her she did not want to speak with the Petitioner over the phone because the Petitioner yelled at her. The Petitioner denies yelling at M. L. The matter was adjourned to April 19, 2017 for status and possible decision on the motions.

Legal Analysis

This matter has a very lengthy and troubled history and involves two very serious allegations in a contested custody proceeding, parental alienation and contempt of court. In the midst of determining the child's best interests, this court is faced with a contentious situation between two parents, filled with obvious animosity towards each other. Nevertheless, the court in its paerens patriae role must determine which parent is most fit to have full custody of the subject child, ensuring that such an important decision and the resulting outcome is best for this young child. However, at first the following questions presented must be answered: (1) is a forensic evaluation required in order to determine, inter alia, whether the child's refusal to visit with the Petitioner is the result of simple estrangement or parental alienation by the Respondent; and (2) should the Respondent be held in contempt of court for violating this court's orders?

Motion for a Forensic Evaluation

Regarding forensic evaluations, the law is well-settled that the determination of whether to direct a social or psychological evaluation in custody and visitation matters is within the sound discretion of the court. Sassower-Berlin v. Berlin, 31 AD3d 771 (2d Dept. 2006). In order to determine what is in a child's best interests, the court must have adequate information upon which to better review the facts and circumstances and render a sound decision. Such information can be obtained in a psychiatric or psychological evaluation, which can be required to serve the purposes of the Family Court Act. Freeman v. Freeman, 96 Misc 2d 302 (Rockland Cty. Fam. Ct. 1978). While a court cannot compel a parent in a custody proceeding to undergo therapy or analysis, it can order the parent or child to be examined by a psychiatrist or psychologist and consider such report in its custody determination. Grado v. Grado, 44 AD2d 854 (3d Dept. 1974).

This emotionally-charged matter clearly requires that the court conduct a careful balancing of all applicable factors in determining what is in the child M. L.'s best interests. Gage v. Gage, 167 AD2d 299 (1990). While the court would prefer that the parties consent to the evaluation, the court is not constrained by the refusal of one parent to participate. Freeman, 96 Misc 2d at 303-304. As this court may not be able to discover potential negative behavior by the alleged alienating parent without the aid of a professional, a forensic evaluation is especially valuable in such circumstances. Bennett v. Schultz, 110 AD3d 792 (2d Dept. 2013).

The case history and reports from the visiting coach included in the Petitioner's motion, exhibits B, D, E, F, G and H describe the gradual deterioration of visits between the petitioner and subject child, which eventually led to visits stopping altogether. Each reported visit was mostly positive with much love and mutual affection shown between the Petitioner and the child [*5]and the Petitioner was always acting appropriately during visits. Then, out of the blue, the child began to show hesitation to visit, then stating that she no longer wished to visit with the Petitioner, that she "felt uncomfortable" about visiting but not wanting to tell the Petitioner so she would not feel sad. It was also reported that the Respondent and child would appear very early for some visits, the result of which would be a period of waiting which can make children uneasy and apprehensive. As time passed, the child would be more adamant about not visiting without stating a valid reason, but then bringing up the fact that the Petitioner stabbed the Respondent in the past. As the child was only one year of age when it occurred, the suspicion is raised regarding possible coaching of the child by a third party.

Petitioner cites an informative article regarding parental alienation, where Dr. Phillip M. Stahl, a clinical and forensic psychologist describes typical alienated behaviors in children, such as the following: a near or complete rejection of one parent in favor of the other; superficial and trumped-up or exaggerated complaints about the rejected parent with little or no substance; and inconsistent and contradictory statements and behaviors. Stahl, Understanding and Evaluating Alienation in High-Conflict Custody Cases, 24 Wisc. J. Fam. L. 1 (2003). Based on the documentation from the visiting coach, the subject child has exhibited behaviors which are similar to those Dr. Stahl described in his article. In combination with the child's hesitation to visit as listed above, there is sufficient justification for a forensic evaluation to assist the court in determining whether the child's hesitation to visit is the result of parental alienation on the Respondent's behalf.

The Respondent's arguments in his affirmation are unavailing. There is no evidence that the Petitioner has consistently destabilized and traumatized the child. To the contrary, the interactions reported between them during visitation are nothing but positive on the Petitioner's behalf. Furthermore, the Respondent has offered no details as to the Petitioner's alleged destabilization and traumatization of the child. Respondent's reliance on In Re James Joseph M. v. Rosana R., 32 AD3d 725 (1st Dept. 2006) is misplaced, as the subject child has not endured numerous other examinations on the issue of custody. While the court takes the prior history of the case seriously, the visiting coach expressed no concerns about and inappropriate behavior of the Petitioner or lack of affection towards the child. When ordering forensic evaluations, the court must always balance the concerns about emotional cost to the child with the benefit of an independent professional forensic evaluation. The practice of appointing independent experts is sanctioned by the rules of the court (see, 22 NYCRR §§ 202.16(g), 202.18), which provide for the use of such reports, without consent, as the equivalent of the expert's direct testimony, subject only to each party's right to cross-examine. Ochs v. Ochs, 748 N.Y.S.2d 650 (NY Supt. Ct. 2002). The value of the essential role played by the court-appointed neutral forensic psychologist in custody litigation is now so well-recognized that such an appointment is essentially required in any custody litigation where there are serious questions of parental fitness. Vernon Mc. v. Brenda N., 196 AD2d 823 (2d Dept. 1993). As the Petitioner correctly states, if this court finds that the Respondent has in fact alienated the child from the Petitioner, it does raise the issue of whether the Respondent is fit to have custody at all, which would be determined at a later date. The court finds that the risk of any emotional cost to the child is sufficiently outweighed by the potential benefit of determining why a young child refuses to see her mother, which could lead to an assessment and possible treatment in order to preserve the parent-child relationship.

This court is faced with the daunting task of determining whether the Respondent has alienated the child from the Petitioner. It is clear that based on the foregoing, the court requires [*6]a thorough examination, review and opinion of a licensed professional who can provide important insight and guidance regarding the underlying bases for the family's current situation. Based on the history of this family, the facts and controlling law on this issue, it is clear that a forensic evaluation of this family is warranted under the circumstances and will be so-ordered.

Motion for Contempt

The child M. L. now wants no telephone contact with the Petitioner. Regardless of the underlying reason, it is terribly unfortunate. The Petitioner alleges that the Respondent informed his attorney that the Petitioner had screamed at M. L. during a phone call and that M. L. no longer wished to speak with her. Petitioner alleges the existence of tape recordings of the phone calls which took place between the Petitioner and M. L. between December 15, 2016 and February 24, 2017, which show that the Petitioner never screamed at M. L. The Petitioner further claims that in fact, the Petitioner was loving and appropriate during the calls. Petitioner cites at least seven calls which went either unanswered or the Respondent was unavailable to produce the child to speak with the Petitioner. Petitioner claims that the Respondent has failed to encourage M. L. to speak with her, thereby sabotaging her ability to communicate with M. L. Petitioner notes that the Respondent never objected to the order for phone call contact in court, nor did he seek to change the order.

The law is well-settled that it is in the best interests of a child to have relationships with both parents absent extraordinary circumstances. Young v. Young, 212 AD2d 114 (2d Dept. 1995). This right is considered more precious than any property right. Resnick v. Zoldan, 134 AD2d 246 (2d Dept. 1987) and that a child has a right to be nurtured and guided by both natural parents. Bostinto v. Bostinto, 207 AD2d 471 (2d Dept. 1994). The Court stated in Young that a custodial parent's interference with the relationship between a child and the non-custodial parent raises the possibility that the offending party is unfit to act as a custodial parent. Furthermore, a parent can be held in civil contempt of court for failing to follow a court order regarding visitation. A motion to punish a party for civil contempt is addressed to the sound discretion of the [hearing] court. (Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, 78 AD3d 626 [2d Dept. 2010], quoting Chambers v. Old Stone Hill Rd. Assoc., 66 AD3d 944 [2d Dept. 2009]). To sustain a finding of civil contempt, a court must find that the alleged contemnor violated a lawful order which clearly expressed an unequivocal mandate, and that, as a result of the violation, a right or remedy of a party to the litigation was prejudiced (see Judiciary Law § 753[A][3]). Labanowski v. Labanowski, 4 AD3d 690 (3d Dept. 2004). Such failure must be willful (Constantine v. Hopkins, 101 AD3d 1190 [3d Dept. 2012]) and contempt must be proven by clear and convincing evidence (Romanello v. Davis, 49 AD3d 652 [2d Dept. 2008]).

In the instant matter, while the court finds that the order was not fully complied with, there lacks clear and convincing evidence that the Respondent violated the order at all, albeit willfully by not producing the child for telephone contact with the Petitioner. The Respondent is correct that Family Court Act Section 156 deals with contempt for failure of a party "to do an act or refrain from doing an act," which does not apply to the circumstances herein. The language of the December 15, 2016 order only requires telephone contact between the Petitioner and the child. It does not direct the Respondent to do anything or refrain from doing anything. Therefore, the child's unwillingness to speak with the Petitioner does not rise to the level contempt on the Respondent's part. The order only directs behavior between the Petitioner and the child. Furthermore, even if the order had directed the Respondent to specifically produce the child for telephone contact with M. L., the Respondent's claim that the child does not wish to [*7]visit with the Petitioner based on the past domestic violence issues and the child's fears creates an issue which would defeat a finding of willfulness by clear and convincing evidence.

In her affirmation in support of contempt, the gravamen of the Attorney for the Child's argument is regarding sibling visitation, which of course should be part of any visitation order in this matter. She further states that this Court has not reprimanded the Respondent-father for failing to enforce the court order of visitation, despite what she describes as "clear and convincing evidence of parental alienation." This argument is unavailing and a misrepresentation of the facts and circumstances herein, as there has been neither clear nor convincing evidence presented to support such a claim. This Court remains steadfast in its parens patriae authority to protect the best interests of this child and it would be precipitous at best to reprimand the Respondent-father for what are now only unproven allegations.

However, any attempt by the Respondent to curtail such communication either directly or through undue influence of the child is entirely relevant to the issue of parental alienation and would be addressed at a hearing to determine if such alienation exists. The Petitioner argues that it is the Respondent's responsibility to ensure that telephone contact occur between M. L. and the Petitioner and that the Respondent's statement that he would not prevent M. L. from speaking to the Petitioner is insufficient to show proper supervision and guardianship of M. L. The court finds this reasoning unavailing regarding a finding of contempt against the Respondent. Obviously, the Respondent should use his best efforts to ensure communication between the Petitioner and M. L. The court will excuse an affidavit in support from the Respondent, as the Petitioner's motion did not have an affidavit in support from the Petitioner.

Conclusion:

The court finds that a forensic evaluation is warranted in this matter. However, there is no basis to hold the Respondent in contempt of court. The court's order of December 15, 2016 is modified to include the following language: "Respondent shall use his best efforts to facilitate telephone contact between the Petitioner and the child."

WHEREFORE based on the foregoing, the Petitioner's motion #1 is granted in its entirety. Petitioner's motion #2 is denied in its entirety and Respondent's cross-motion is granted in its entirety. Notify parties.

Dated: Bronx, New York

April 19, 2017

Hon. Gilbert A. Taylor, J.F.C.