FAMILY
COURT OF THE STATE OF NEW YORK
CITY
OF NEW YORK: COUNTY OF QUEENS
[CAPTION]
REPORT
OF COURT
ATTORNEY
REFEREE
To:
Judge of the Family Court, Queens Court
On
October 26, 2012, the petitioner, [Father] filed an order to show cause seeking
the the following relief: suspension of the parenting time of the respondent, [Mother];
the completion of a psychological evaluation of [Mother]; the
restriction/suspension of [Mother]'s weekend visitation pending the outcome of
the evaluation; conditioning the continuation or reinstatement of visitation on
therapeutic or medication compliance and other relief the court may deem
appropriate. The respondent filed an affidavit in response objecting to the requested
relief. The matter was referred to me on November 21, 2012, and I was directed
to hear and report upon the issues set forth in these matters. Transcripts have
been provided. I hereby respectfully report as follows:
Procedural
History
These
matters have a lengthy procedural history which is relevant to the determination
of the current proceedings. The parties have two children, [Child #1], born on []
and [Child #2], born on []. The parties were previously before the Supreme
Court in Queens County before commencing proceedings in family court. On [],
Acting Supreme Court Judge [] issued a decision after trial granting [Father] custody
of the children and granting [Mother] visitation with the children. On [], Judge
[] signed the parties' Judgment of Divorce. Subsequently on [], Judge [] issued
an order modifying [Mother]'s parenting time. After lengthy proceedings in the
family court which commenced in July 2010, Your Honor issued a final order
modifying [Mother]'s parenting time on [] upon confirming a report submitted by
this Referee. A copy of the order was entered into evidence during the hearing.
The order dated [] provided the following:
1)
[Mother]'s after school parenting time was terminated
2)
Weekend visitation was modified to alternate weekend day visitation from 10:00
a.m until 6:00 p.m with pick up and drop off curbside at [Father]'s building.
3)
[Mother] was directed not to enter [Father]'s building at any time.
4)
If [Mother] is more than fifteen minutes late returning the children, she shall
forfeit her next visit.
5)
[Mother] shall not attend mass at [] Catholic Church in [] on Sundays on
weekends so long as the children attend that Church.
6)
[Mother] shall ensure that the children are properly fed while in her care and
attend any of their activities prior to returning them home at 6:00 p.m.
7)
[Mother] may only attend the children's activities during her parenting time on
alternate Saturdays and Sunday when the children are in her care.
8)
[Mother] shall not have any contact with the children's babysitters or other
third parties providing services to the children.
9)
[Father] shall endeavor to complete the children's school work with them during
the time they are in his care. If the children bring homework or school
projects with them while visiting their mother, [Mother] shall ensure the work
is completed and returned with the children.
10)
Neither party shall discuss the litigation or court proceedings with the
children nor disparage the other parent in the presence of the children.
11)
[Mother] shall not attempt to contact or otherwise interact with the children's
school faculty, staff or other support members.
12)
[Mother] may also have additional visitation as the parties arrange, and the parties may agree to modify the schedule of
parenting time so long as it is done in writing, including electronic writing to
avoid disputes.
On
October 26, 2012 [Father] filed an order to show cause seeking to modify the order
of visitation issued on []. In his order to show cause [Father] alleged that [Mother]
engaged in acts which constitute abuse, neglect and child endangerment.
Specifically, he alleged that [Mother] left the child [Child #1] at a soccer
field after engaging in an argument with another parent regarding her dogs,
subjected the child [Child #2] to physical and verbal harm the same day and instructed
the child not to discuss the incident with her father and that [Mother] struck
the child [Child #2] on prior occasions. [Father] also alleged that [Mother]
violated the [] order by appearing at a coffee with the principal at the
children's school on Friday, October 5, 2012, has appeared outside the
children's schools on other occasions, has followed [Father] and the children
on a non-parenting time day in her car, and has attended or been present at the
children's sporting events on non parenting days. [Father] subsequently filed a
supplemental affidavit on November 12, 2012 alleging that [Mother] on a non
parenting time day blocked the egress of [Father] and the children from a
soccer field parking lot with her car and that she made knowingly false child
sexual abuse allegations against [Father] in November 2012 resulting in a
vaginal examination of the child [Child #1] who was twelve at the time. [Father]
requests that all visitation be suspended and that, as a precondition to any
further visitation, [Mother] obtain psychological help.
On
November 21, 2012, the parties and counsel first appeared in court. Your Honor
denied [Mother]'s application for court appointed counsel and directed the
Administration for Children's Services ("ACS") to provide a report to
the court to include information on outstanding child protective investigations
and to refer both parties for mental health evaluations. [Mother] was given the
opportunity to hire counsel and the matter was referred to this Referee. The
parties and counsel for [Father] as well as counsel for the children appeared
before me on December 21, 2012. At that time, [Mother]'s attorney submitted
both a notice of appearance and an affirmation of engagement requesting an
adjournment of the proceedings. As the report from ACS had not been completed,
the court reordered the report and adjourned the proceedings until January 30,
2013 for the appearance of [Mother]'s attorney. On January 30, 2013, all
parties and counsel were present. A pre-trial conference was conducted and the
matter was adjourned for the completion of a statement of trial readiness. On
February 7, 2013, all counsel and the parties appeared. Six trial dates in
April 2013 were selected although counsel still had not completed the statement
of trial readiness as some limited discovery issues were outstanding. Both parties
identified their witnesses *1 and the matter was adjourned for the completion
of discovery by a date certain and submission of the statement of trial readiness.
Two additional pre-trial conference dates were held on March 4, 2013 and April
3, 2013. By the March 4, 2013 court proceedings, [Mother] still had not
provided discovery nor had the statement of readiness been completed.
Throughout the proceedings, [Mother] insisted that she would not be completing
the single statement of trial readiness required to be submitted by the parties
and counsel but that she would be completing her own statement of readiness.
Although the court explained the procedure for submission of one statement of
readiness by all counsel and the parties to the court, at the pre-trial
conference on April 3, 2013, the statement of trial readiness that was submitted
contained information provided only by the attorney for the child, [Father] and
his counsel.
The
court conducted a trial in these proceedings on April 15, 2013, April 16, 2013,
April 19, 2013, April 25, 2013, April 26, 2013, April 29, 2013 and May 29,
2013. Although on February 7, 2013, [Mother] had preliminarily identified six witnesses
(including herself) that she would present at the trial, when the hearing began
on April 15, 2013, [Mother] indicated that she did not have a complete witness
list. The court directed her attorney to provide a completed witness list to
counsel and the court by the commencement of the proceedings on April 16, 2013.
On April 16, 2013, the completed witness list was not provided, and the court
directed [Mother]'s attorney to provide counsel the names of the witnesses by
9:00 a.m on Thursday, April 18, 2013. [Mother] was also directed to have the
witnesses present in court on April 19, 2013 when it was anticipated her case would
begin. On April 18, 2013 at 2:32 p.m, [Mother] submitted a witness list
containing 39 names to the clerk's office. On April 19, 2013, the attorney for [Mother]
stated that he would only be calling two witnesses to testify: [Mother] and
[Witness #1]. [Father] completed his direct case on April 19, 2013 and [Mother]'s case began with her own testimony.
The trial thereafter continued on April 25, 2013 and April 26, 2013. [Mother] and
[Witness #1] testified. On April 25, 2013, at the request of [Mother]'s
counsel, the court signed a subpoena for the ACS workers involved in the
proceedings as the attorney for [Mother] had initially indicated on February 7,
2013 that he might wish to call ACS as a witness. On April 29, 2013, [Witness
#2] from ACS testified for the respondent. The court then selected a final
trial date to complete the testimony of [Witness #2]. On May 29, 2013, [Witness
#3] testified for [Mother]. *2 No other witnesses were present. At that time,
the attorney for [Mother] requested the opportunity to call additional
witnesses. The court indicated that it would sign subpoenas for two additional witnesses,
[Witness #4] and [Witness #5]. [Mother] stated that she had character witnesses
whom she wished to testify. The court scheduled two additional but final trial
dates and directed that all witnesses were to be present on the next two dates.
On the next court date, June 3, 2013, there were no witnesses present in court.
*3 [Mother] indicated that there were additional witnesses she wished to call.
The court denied an application for [Mother]'s therapist, [Witness #6], to testify
by telephone as the doctor is located in Queens, New York and there was no
reasonable basis given for the application for telephonic testimony. The court
again signed subpoenas for [Witness #4] and [Witness #5]. The court also signed
a subpoena for [Witness #7] who was on [Mother]'s original witness list. The
matter was adjourned to June 5, 2013 at 2:00 p.m. On June 5, 2013, only one
witness was present, [Witness #8], whose testimony the court heard. [Mother]'s request
for a further continuance was denied. *4 The attorney for the children declined
to call any witnesses, the court heard summations and the proceedings were
concluded.
Immediately
before the trial commenced on April 15, 2013, the attorney for [Mother] made an
oral application to dismiss the order to show cause before the court alleging
that the pleading did not state a prima facie case for a change of visitation
which was orally denied. *5 I recommend You Honor confirm the denial of the
application. I noted that the petitioner raised numerous allegations in his
pleading which, if proven at trial, could serve as a basis for the court to
modify the order of visitation.
At
the trial, [Father] testified in support of his order to show cause and
submitted 14 documents into evidence. [Mother] testified on her own behalf and
presented four additional witnesses: [Witness #1], [Witness #2], a child
protective specialist from ACS, [Witness #3], a supervisor from ACS, and
[Witness #8]. Additionally, [Mother] submitted 15 documents into evidence at
the trial. The court also conducted in-camera interviews with the children in the
presence of their attorney on April 26, 2013.
Once
the trial had already commenced and at the conclusion of the court proceedings
on April 15, 2013, the court indicated that it would be conducting in camera interviews
with the children. The parties were advised that they would be given the
opportunity to submit questions to the court through their counsel that they
wished it to consider asking the children during the in-camera interviews. During
the court proceedings on April 16, 2013, the attorney for the children
requested that the court suspend all contact between [Mother] and the children
pending the completion of the in-cameras based on a voice mail [Mother] had
left for the child [Child #1] the evening of April 15, 2013. This Referee
submitted an interim report recommending that the request be granted and that
application was granted. *6 At the close of the petitioner's case on April 19, 2013,
an application to dismiss prima facie was denied.
The
Testimony and Evidence
[Father]
testified at the trial. He presented as a credible witness. The court had the opportunity
to observe [Father]'s eye contact, body language and demeanor during his
testimony and he presented as sincere and forthright in his responses to
questioning on both direct and cross examination. [Father] testified that he is
the ex-husband of [Mother] and that as a result of a prior application he made
to the court, [Mother]'s overnight weekend parenting time was terminated as
well as her after school parenting time. The court accepted into evidence as
petitioner's exhibits one and two the report issued by this Referee dated []
and the order issued by Your Honor on [] conforming that report and modifying [Mother]'s
parenting time with the children. [Father] stated that on October 14, 2012, the
children left for visitation with [Mother] with their soccer bags. [Father] told
the children he would be seeing them at [Child #1]'s game but that he would
probably leave at half-time to attend high school open houses. When [Father]
arrived at the soccer field in Old Bethpage, he saw [Mother] and [Child #2]
each with a dog on a leash. He subsequently saw [Mother] engaged in what he
described as an animated discussion with one of the parents or a coach. [Father]
observed [Mother] and [Child #2] both pick up their dogs and put them on their
laps. The man then pulled out what appeared to be a phone, began dialing and
making a gesture toward [Mother] with his hands out and palms up. [Mother] and [Child
#2] then went with the dogs and sat in her minivan. [Mother] moved her car and
then shortly after she and [Child #2] left the field. [Father] stated that he
planned to leave the field to attend the open houses but that he received a
phone call from his daughter [Child #2] from an unrecognizable number. During
that call, [Father] learned that [Child #2] was at a service station and that [Mother]
was not coming back to pick up [Child #1]. [Father] remained at the soccer
field and then drove [Child #1] to the open house at the Mary Louis Academy.
According to [Father], it was about 45 minutes to an hour between the time [Mother]
left the field and the end of the game and, in that time, [Mother] did not
return to the field. During the car ride, [Child #1] called her cellphone which
she had left in [Mother]'s car and yelled at her mother. [Child #2]
subsequently called and [Father] told her that he believed it was a mistake
that [Mother] had gone to Molloy High School instead of Mary Louis Academy. [Father]
then proceeded to take [Child #1] to an additional open house at Molloy High
School and then took her to Fort Tilden where both children had soccer games.
After the game when it was 6:00 p.m., the time [Mother]'s parenting time was
scheduled to end, [Mother] grasped [Child #2] by the shoulder and attempted to
pull her to the car. According to [Father], [Child #2] pushed her mother away
and said, "I'm going with dad" (tr 4/15/13 at 75, line 15). [Father] testified
that he allowed [Child #1] to go with her mother because [Mother] was already
agitated, and he did not want her to become increasingly agitated.
Additionally, [Child #1] said she had left some things at her mother's house
and that her mother would drive her home. [Child #1] arrived back home between
7:00 and 7:15 p.m.
[Father]
stated that during his car ride home with [Child #2] she made him aware that [Mother]
had screamed and yelled at her, pulled her head first out of the minivan by the
arms, twisting her arms, had dropped the child's bag on the pavement and
subsequently into traffic. [Child #2] said her mother was out of control and
that her mother had tried to kill her. According to [Father], [Child #2] said
her mother threw her bag three times: once into the street, once onto the
sidewalk and once into a cemetery. [Child #2] said she was so scared she ran
away. The next day [Father] found a voice mail on his phone which had been left
for him by [Child #2]. In the voice mail, [Child #2] reports events that transpired
while she was with her mother and states that
[Mother] "went on a rampage....I had to get out of the car because
she tried to kill me, so I'd like to tell you that like, I really don't want to
be with her, all right?" (petitioner's exhibit 3). As a result of the
incident, [Father] filed a police report although he did not file a report with
ACS. He stated that he did not take [Child #2] to the doctor or observe any
marks or bruises on her.
[Father]
also testified that on October 5, 2012 he attended a function, a coffee with
the principal, at the [] which is his child's school. [Father] testified that
the event took place in the school cafeteria and occurred on a school day when
he was scheduled to have parenting time. He saw [Mother] in the room. She was
present when he arrived at the event and remained when he left the event after
about 25 minutes. On October 10, 2012, a day that [Mother] did not have
parenting time, she appeared at two soccer practices of the children and remained
for approximately ten to fifteen minutes. [Father] testified that while driving
between the practices at the two fields, [Mother] followed them
"practically bumper to bumper throughout the entire trip." (tr
4/15/13 at 102, line 25). [Father] testified that on October 20, 2012, [Mother]
attended two separate games of the children when it was not her parenting time.
According to [Father], [Mother] appeared at the second game, and placed her chair
directly next to where he and [Child #2] were standing. [Child #2] then pulled
him by the arm and he followed her and moved to the other side of the field. [Mother]
then followed them and sat down next to them again. [Father] testified that [Mother]
was present at the Alley Pond Park field for more than an hour, and that [Child
#2] had a reaction to her mother's presence and said something to him. On
October 24, 2012 a weekday when it was not [Mother]'s parenting time, while [Father]
was present at [Child #2]'s soccer practice, [Mother] drove directly in front
of him slowly and stared at him. He also stated that on October 26, 2012, he
was walking toward the street and [Mother]'s car passed in front of him and [Child
#2] and she glared at him.
[Father]
testified that on October 28, 2012, he contacted the police department and
filed a domestic incident report to advise them that [Mother] had returned the
children after 6:30 p.m the evening of October 27th thereby forfeiting her
parenting time on October 28, 2012 pursuant to September 28,2012 court order. [Father]
noted that he delayed in filing in the police report until the morning of
October 28th as he did not want to bring the children to the precinct. He
called the police between 5:00 and 6:00 in the morning on October 28 so the
police would come to his home instead. [Father] attended [Child #1]'s soccer
game on October 28, 2012 and he sat on the sidelines with [Child #2]. [Mother] came to the game and sat down next
to him and [Child #2]. After the game, he and the children were in the car and
he noticed [Mother] had pulled her minivan behind him preventing him from
pulling out of his parking space. [Father] told the children to keep the doors
locked and to remain calm in response to what the children were saying to him. [Mother]
blocked his car in for about two to three minutes and he was ultimately able to
get his car out of the spot, not because [Mother] moved her car, but because
there was a free parking spot next to him and he was able to get his car out
through that spot and drive to the far side of the parking lot, turn around and
proceed to the exit. When he approached the exit, [Mother] was blocking the
only exit with her car. They sat in the car and he reassured the children that
they would be able to get out of there and told them to calm down. [Mother] got
out of her car, came ten feet in front of his car and began taking photographs.
Other cars were lined up behind [Father] and were honking their horns.
Eventually, [Mother] moved her car and [Father] and the children were able to
exit the parking lot.
On
November 2, 2012, [Father] received a phone call from [Witness #2] from the Administration
for Children's Services and he then brought the children to her office to meet
with her. Once he arrived at the ACS office, he was told that there were
allegations that he touched the children inappropriately, he showered and
masturbated in front of them and that he did not take appropriate measures to
deal with rashes and infections on their private areas. During the meeting, he
denied the allegations, and the children were then interviewed by the ACS worker.
[Father] then signed releases for ACS to obtain information including
information from the children's doctor, [Witness #4], and he subsequently
brought [Child #1] to [Witness #4] for a vaginal examination rather than have the
exam performed by an ACS doctor. According to [Father], [Child #1] appeared embarrassed
and upset when taken to [Witness #4]’s office and she appeared upset after the
examination. [Father] testified that it disgusted him that his daughter had to
be subjected to such an exam and he felt that the false accusations took away
his ability to protect his child. When [Father] was in the Queens Family Court
on November 8, 2012, he learned from the ACS worker that the allegations
against him were deemed unfounded, and he subsequently received written
notification of the same. He stated that as a result of the allegations, the
children have never been removed from his care by ACS nor has a neglect, abuse
or criminal case ever been filed against him.
[Father]
testified that there were also proceedings before Judge [] on November 7, 2012
in the Supreme Court which were initiated by [Mother] as well as proceedings on
November 8, 2012 before Judge []. Transcripts for both court appearances were entered
into evidence at the trial as petitioner's exhibits nine and ten. The Supreme
Court proceeding on November 7, 2012 resulted from the filing of an Order to
Show Cause by [Mother] (petitioner's exhibit 19). Judge [] indicated during the
proceedings that [Mother] had made allegations of sexual abuse of the children,
child abuse and parental alienation by [Father]. A review of the transcript
from the proceeding reveals that [Mother] told the Judge, although the parties
were in family court the week prior, that she did not make the family court
judge aware of the allegations because she had just that week spoken to her
friend who is a doctor about the redness in her child's private areas. She told
the Judge that her other child had bleeding "down there" but that a
doctor had indicated that the child was fine (petitioner's exhibit 9 at 8, line
15-16). She also spoke in the November 7th proceedings about a hemorrhoid that [Child
#2] had on her anus for years which she said was not normal. On November 8, 2012,
the parties appeared in the Supreme Court before Judge []. Judge [] noted that [Mother]
had filed 46 applications before the court and directed that she could not file
any additional applications without court approval. When asked by the Judge to
articulate any specific instances of sexual abuse by [Father] and the dates of
the occurrences, [Mother] was unable to do so and said "I brought it to
the court's attention because it's something that's been in my mind for a
while." (petitioner's exhibit 10 at page 5, lines 9-11).
[Father]
also testified that after the court proceedings on April 15, 2013 when the
court addressed the intention to conduct in-cameras with the children, he took
the children out to dinner. His daughter subsequently handed him her cell phone
and he became aware that [Mother] had left [Child #1] a voice mail at 5:12 p.m
which was subsequently entered into evidence as petitioner's exhibit 11. In
that recording, [Mother] states as follows:
"Hi,
it's mom. Listen, dad is going to come home. He is going to tell you this lady
from court, very nasty lady, Referee [], and that black guy [], he's going to
try and get you and [Child #2] to come in to court to talk in camera which is
taped and they'll make a copy of it and it will become a permanent record. Do not
say anything except, you know, that you love your mom. She's great. You love
spending time with her and you want to be with her a lot more, and that you
want her to be making decisions on your behalf, attending your events, to be at
your school, at church, at community, you know, to get your records, to be at
your doctor and dentist appointments, to be with you in the summer, on your
birthday, especially on your birthday, on holidays, vacations in the summer,
weekdays, overnights on weekends. You love your puppies. The house is neat and
clean. You always have a good time with mom. Mom gets along great with you and
with [Child #2]. I don't yell at you or do anything wrong. I drive safely. The
house is nice,. You're happy in my care and you always have a good time, and I always
watch out for your best interest. I take you to nice places and buy you nice
things, and I never scream and curse. I never do anything inappropriate. I'm
always nice to people. I don't get into fights. You do not know anything about
me leaving you, abandoning you at the game or leaving you unattended ever. You
always, the coach is always in charge of you at practice and games. Often
parents leave to go to the bathroom or they go in their car because it's cold, and
the coach watches you. You're private and separate and you're always safe. Tell
them you know nothing about the alleged incident against [Child #2], that [Child
#2] tends to get upset. She over-dramatizes things and that she does engage in
temper tantrums, that you know, you have been hit by her and she has gotten out
of hand, and it's because of high sugar that she takes on and she does get
moody. But that she loves her mom, and that mom buys her like nice things, and
she did not complain about mom, but sometimes she's obsessed with the computer and
T.V. and that she can act up and have like long standing tantrums and that the
day they alleged she went to soccer, she was feeling, you know, she played in
the game. She went with mom because, with dad, because you both wanted to go
with mom, but dad said [Child #2] had to come with him, because he wanted you
to come with him, too. Call me back if you can." (petitioner's
exhibit 11).
[Father]
testified that [Mother] speaks to the children on the phone and that he has
never prevented the children from talking to their mother.
[Mother]
also testified at the hearing. The court found [Mother] to be an absolutely incredible
witness who was evasive, obstructionist, belligerent and even deceptive, and the
court does not credit her testimony which was often contradictory, repetitive,
non responsive to the questions asked and irrelevant to the proceedings before
the court. While testifying [Mother] often sat in a defensive posture and also
presented at times as angry and sarcastic. [Mother]'s behavior during the
proceedings was often inappropriate and erratic. [Mother] often blurted out
comments and interrupted the court proceedings, interjected during the
testimony of witnesses, answered questions posed to other witnesses, chastised
the lawyers for standing when addressing the court, made inappropriate comments
to counsel, *7 and sought to leave the proceedings spontaneously for various reasons.
On one occasion, [Mother] even left the building and had to be directed to
return by court officers. *8
[Mother]'s
testimony repeatedly consisted of long non responsive speeches where she made allegations
of bribery against the attorneys appearing in the proceeding, bias by the court
and the attorney for the children, and harassment by court personnel *9 and
counsel. [Mother] also used her opportunity to testify as a forum to launch
personal attacks on [Father], the attorneys and the court rather than respond
to the questions posed to her during both direct and cross examination. [Mother]
often focused on issues addressed in prior court proceedings, some of which
were never before the family court as well as previous proceedings before the
family court. She also continually offered testimony about changes needed to
the custodial arrangement even though custody proceedings are not currently before
the court. On one occasion when simply asked if the September 28, 2012 order
issued by Judge Bogacz was the current order specifying her parenting time, [Mother]
failed to respond to the question and instead chronicled the parties' court
proceedings and the custody/parenting time history concerning the children
beginning in 2001 at length. [Mother] criticized various triers of fact and
explained how other triers of facts supported her custodial and parenting
rights in her estimation. [Mother] criticized the attorney for the children,
alleged coaching and misrepresentations by counsel and [Father]to the court,
spoke about the in-camera proceedings and how she believed they should be
conducted. [Mother] also addressed her
fitness as a parent alleging she should be given joint custody of her children
claiming she is a fit mother, an educated person and her children are
emotionally abused and alienated from her (tr 4/25/13 at 177-183). [Mother]
subsequently alleged that all her petitions '"disappeared from the
system" and offered an explanation for her default in prior proceedings. *10
(tr 4/25/13 at 183-184, lines 25 et seq.).
Throughout
her testimony, despite constant directions from the court to cease such
behavior, [Mother] continually communicated with her lawyer by gesturing to,
questioning, and making comments and directions to her lawyer during her testimony.
Although by this juncture the court had already issued countless warnings to [Mother],
on April 29, 2013, the following dialogue occurred:
Referee: "[Mother], take your hands away
from the microphone. [Mother], I'm going
to strike your testimony. Do you understand that everything you said in this
courtroom is not going to be considered? I don't understand what you don't
understand about what I just stated. You're placing your hand over your mouth and
turning your head to speak to you lawyer. You are a witness testifying in this
proceeding. You are not allowed to speak to your lawyer."
Witness: I didn't speak to him and I didn't put
my hand over my face.
Referee: [Mother], listen to what I'm saying. This is a
rule that applies to every witness who's testifying. You're no different,
ma'am, when you are testifying, than any witness who sits on that stand. Do you
understand what I just said to you? Yes or no?
Witness: I understand, but I feel that my safety
is threatened at this point by you and others in this room and I feel I would
like to make a police report.
Referee: Right now?
Witness: About the threats and harassment.
Referee: Who would you like to make a police report
about? Again, right now, sitting in this room with a court officer here, with
four lawyers - excuse me, three lawyers and The Court present, who would you
like to make a police report against so the record is clear?
Witness: I would like this proceeding to be
stopped immediately based on your harassment of me and [Attorney for the
Children]'s continuing abuse and harassment of me and assault on me and anything
you're discussing is criminal evidence at this point and will be brought up with
the police today in a police report and we should not continue because you're
violating my rights and the penal law and you should stop immediately with this
proceeding because right now we're dealing with a criminal investigation and
I'm going to be taking this to the district attorney's office."
(tr
4/29/13 at 15-16, lines 7 et seq.).
At
times, [Mother] refused to answer questions, citing her own objections to the
questions posed. On cross examination, [Mother] refused to answer questions
citing the unjustness of the lengthy questioning and claiming that documents
shown to her for identification were "irrelevant." (tr 4/29/13 at 35,
line 5). On more than occasion during cross examination, [Mother] refused to answer
questions and had to be directed accordingly by the court. On April 26, 2013,
on cross examination, [Mother] denied placing certain items in her daughter [Child
#1]'s soccer bag. She was asked: "is it your testimony you had not placed
those items in her bag?" [Mother] refused to answer at first saying "I
have nothing else to say about that." The court instructed her " [Mother],
please answer the question of the lawyer" to which [Mother] responded,
"The way that Mr. Ayers is posturing is, you know, is combative." (tr
4/26/13 at 15, lines 6-25). The court continued to instruct [Mother] by saying:
"[Mother], Mr. Ayers is standing up as is appropriate before the court. Please
answer the question." [Mother] responded by saying: "I don't have to
answer the question if I don't want to." The court: "Yes, actually, [Mother]
you do. [Mother], I'm sorry, I didn't hear an answer." [Mother]:
"There is no answer." The court: "Please answer the question, [Mother]."
[Mother]: "No." (tr 4/16/13 at 16, lines 1-11). On another occasion,
when asked to identify documents, [Mother] responded by saying "we're only
going to allow certified copies to be admitted. We're going to be objecting to
everything." (tr 4/29/13 at 117, lines 1-2). [Mother] then "demanded"
that the documents presented to her for identification be certified and she
"demanded" that "all my applications in the file, to date, the
entire file, is added into evidence from beginning to end. From supreme and the
appellate division from 2000 to date and this case be a full custody hearing."
(tr 4/29/13 at 117, lines 16-21).
On
April 29, 2013, [Mother] claimed that she was unable to read and identify any documents
presented to her because she had forgotten to wear both her glasses and contact
lenses to court. She stated that, "I didn't know I was going to be reading
documents, that the court was going to force me to read. It's a dictatorship
here today. Sorry. I don't have my glasses." (tr 4/29/13 at 30, lines
13-16). After being directed by the court to return after the lunch recess with
glasses and/or contact lenses, she returned wearing glasses. During the
afternoon session on that date, [Mother] broke her glasses and subsequently
threw them from the witness chair across the room to counsel's table. She
claimed she was also wearing contact lenses and did not need the glasses to
see. Numerous times during her testimony, [Mother] would insist on leaving the
courtroom claiming she had an emergency while simultaneously requesting to
speak to her lawyer. [Mother] also
claimed various medical ailments during the proceedings such as headaches,
migraines and a stomach virus.
During
her testimony, [Mother] claimed that she was not served with the order issued
by Judge [] on September [], 2012 until late October 2012. [Mother]
subsequently testified that she was never actually served with the order. When
asked if she had parenting time on Fridays pursuant to the order issued on
September 28, 2012, [Mother] testified that she is not familiar with the entire
order, (tr4/29/13 at28, line 29). During her testimony, [Mother] denied every
attending the children's events during her non-parenting times. She stated
that: "After I was served with Judge []'s order I have not. I don't
know the date on that but I think it was in October some time." (tr 4/25/13
at 189, lines 13-15). Despite her testimony about her lack of knowledge of the
full contents of the order, [Mother]'s testimony does evince an awareness that
her parenting time had been modified by October 2012. For example, she testified
with specificity to the constraints she felt were placed on her relationships
with the children by the new schedule in effect in October 2012 which allowed
her only day visitation, and her testimony showed she was aware that she had to
return the children in a timely fashion or risk forfeiting her next visit.
The
court took judicial notice that October 5, 2012 was a Friday. [Mother]
testified that she was unable to recall the date of October 5, 2012 when she
was alleged to have been present at the coffee with the principal. She
subsequently denied being at the coffee with the principal that day and then
testified that she could not recall whether she saw [Father] and the children
at any other time that day. An Order to Show Cause that [Mother] submitted to
the Queens Supreme Court on November 7, 2012 was entered into evidence during
the hearing. Paragraph 15 of the affidavit submitted by [Mother] states as
follows: "On Friday October 5, 2012 Respondent came into our children's
schools to attend breakfast with the principal which he has never attended for
the past four years. I have attended this even often offering suggestions and
ideas to the principal. I am a tenured and certified teacher in New York. I
have a Master's Degree in Education. Respondent stared at me in an evil way as
he walked in. Everyone could see his disdain and anger toward me. He tried to
sit down with our child's soccer coach Brian but was advised that he should sit
elsewhere." (petitioner's exhibit 19). Even if the court assumed arguendo
that [Mother] had not yet received the court's order dated September 28, 2012
which prohibited her from being present at the children's schools at any time,
the court had previously issued an order on May 10, 2012 prohibiting [Mother]
from being present at the children's schools unless she was scheduled to pick them
up for visitation. Under either order, [Mother]'s presence at the school for
such an event was not permissible.
[Mother]
testified that on October 14, 2012, the children had a soccer game on Long
Island. She denied having an animated discussion with anyone on the soccer
field that day. [Mother]'s explanation for the events that led to her leaving
the field with [Child #2] were as follows: [Mother] claims the man who runs the
field told her dogs were not allowed so she placed the one dog she had with her
back in the car. [Mother] claimed that she and [Child #2] left the field and
went to the bathroom a mile down the road and when they returned [Father] had
already left with [Child #1]. According to [Mother], she and [Child #2] left
the field a few minutes before the end of the game but she was unable to state how
long she and [Child #2]were absent from the field other than to say that it was
less than an hour. [Mother] also claims that [Child #2] was upset and trying to
reach out to [Child #1] because she wanted to be reunited with her sister. [Mother]
denied physically harming [Child #2] on that day and further claims that [Father]
is attempting to alienate her. [Mother] said "[Child #2] was distraught. [Child
#2], you know, likes to be with her sister. And she likes to know that her sister
is safe." (tr 4/19/13 at 58-59, line 24 et seq.). [Mother] claimed that
her daughter revealed their plans to attend the open houses that day to [Father]
and that he wanted to go and stalk them. She also claimed that [Father]
abducted [Child #1] during her parenting time that day. When presented with the
audio recording [Father] testified that [Child #2]left on his phone
(petitioner's exhibit 3), [Mother] conceded on direct examination that she
recognized her daughter's voice (tr 4/16/13 at 56, line 25). On cross
examination, however, [Mother] stated that "I don't know if that is my daughter
or not."(tr 4/26/13 at 133, line 17). She continued to say "I do not
think that's my daughter, and I don't think that she did say those things. I
believe it was coached and it was when she was home, and [Father] was preparing
her to lie at the police station if she did and that's outrageous." (tr 4/26/13
at 133, lines 24 et seq). [Mother] continued on in her response to claim that the
attorney for the children has accepted bribes and stole documents from her and
ran out of the court house. When asked if [Child #2] was in her care when she
left the message, [Mother] said that the police are currently investigating
wiretapping by [Father], claimed that the court is participating in the abuse
of her children, alleged tampering with criminal evidence, claimed that the
attorney for the children is coaching them and should not be present at the
in-camera of the children and that it is abusive for the court to conduct an
in-camera of the children.
The
court took judicial notice that October 10, 2012 was a Wednesday. [Mother]
denied going to the children's soccer practice on October 10, 2012 and on
October 12,2012. She also stated that she never followed the children in her car.
She alternatively denied being at the Alley Pond soccer field on October 20, 2012
and stated that she did not believe that she was present at the soccer game on
that day. She also denied driving by [Father] and the children on October 24,
2012, which the court took judicial notice was a Wednesday.
Counsel
stipulated that [Mother] had visitation with the children the weekend of
October 27 and 28, 2012. [Mother] denied returning the children back late on
Saturday, October 27 but states that the children were returned by 6:15 p.m and
that [Father] was not there. [Mother] testified that she went to pick up the
children on Sunday morning at 10:00 but that they were not there. She made a
police report and then proceeded to go to the soccer field where she then proceeded
to call the police. According to [Mother] she met the police in the elevated
parking to avoid making a scene but she stated that the officers remained on
site and were there when she left the field although [Father] was not arrested.
[Mother] denied blocking [Father]'s car either in his parking spot or at the
exit to the field on October 28, 2012. She acknowledged that her car is the vehicle,
a 2006 Chrysler Town and Country, pictured in respondent's exhibit A in
evidence but alleged that there were two exits to the field and plenty of room
for all the cars. Respondent's A shows an open gate with [Mother]'s car in the
middle of that gate. From the picture it is clear that no other cars could
enter or exit the gate with [Mother]'s car so situated. [Mother] offered several
pictures of the field into evidence at the hearing. She alleges that two of the
pictures show a different gate on the other side of the field (respondent's
exhibits E and F). Although [Mother] alleges that on October 28, 2012 the gate was
open, she testified that she took the pictures which were entered into evidence
on April 24, 2013.
[Mother]
admitted that there was a complaint made against [Father] for sexual abuse but alleges
that it was based on concerns she had after speaking with a doctor and a
psychologist. She indicated that her friend told her that the allegations were
very alarming and that there could be an improper relationship if her children
had reported the allegations. According to [Mother], [Child #2] reported seeing
her father naked and sleeping on the couch with her father and [Child #1]
reported receiving back rubs from her father. [Mother] then proceeded in her
testimony to talk about a medical condition that [Child #2] had "a couple of
years ago" (tr 4/19/13 at 75, line 5) and focused on how [Father] prevents
her from having contact with the children's doctors even though the order dated
of September [], 2012 restricts her access to third party providers of the
children. [Mother] testified that [Child #2] has had a hemorrhoid since she was
very young and described it as a skin tag on her anus. She also stated that it
is not of a current concern to her but when asked why she raised it in her
allegations to the family court and other courts, she said that when she mentioned
it to a few professionals, they said it was "one piece to a puzzle."
(tr 4/29/13 at 47, line 4).
[Mother]
claimed that it was [Father]'s decision to take the child [Child #1] for a vaginal
examination claiming that "no one made allegations of rape" or any
need for an internal examination of the children (tr 4/19/13 at 76). [Mother]
claimed that when she made the allegations to ACS, she did not understand that
it could result in either child being examined medically because no one said
that the children were being sexually abused.
[Mother]
initially testified that she was concerned that [Child #1] was requesting back
rubs from her but then testified that this behavior did not concern her and
that she never claimed the children were being improperly touched. She also
testified that [Father] took the wrong child for the vaginal examination. She
stated on cross examination that her report to ACS concerning [Child #1] only alleged
that the child was left home alone and that [Child #2] was her main concern although
she then stated that she did make ACS aware of the backrubs. [Mother] claims
that she wanted to keep the ACS investigation a private matter but that [Father]
brought the matter to court. The record in these proceedings show that [Father]
filed his supplemental affidavit on November 12, 2012 in which he raised the
allegations that [Mother] filed false child sexual abuse allegations. [Mother] filed
an emergency application in the Supreme Court on November 7, 2012, resulting in
court proceedings on November 7, 2012 and November 8, 2012 in which [Mother]
made allegations of sexual abuse before Judge [] and before Judge [] (petitioner's
exhibits 9 and 10). [Mother] filed an Order to Show Cause in the Family Court
on November 15, 2012 in which she repeated the allegations that [Father] is a
"sexual predator" (petitioner's exhibit 20). [Mother] also filed an
affidavit in response with the family court on November 13,2012 in which she repeated
the allegations of sexual abuse against [Father] (petitioner's exhibit 21). On January
18, 2013, [Mother] filed an additional Order to Show Cause in the Supreme Court
in which she again addressed her concerns about [Father] and pedophilia.
[Mother]
testified that the complaint she made to ACS was investigated and closed. [Mother]
claimed that even as a former school teacher she was a mandated reporter of
child abuse which included reporting the potential abuse of her own children. [Mother]
claimed that even though there was no evidence to support the allegations she
raised, it does not mean that there is not potential for them to be true or
that they are not true. [Mother] claims that when one parent has complete
control, which she defines as the restriction of the other parent from decision
making and access to third party providers and a deprivation of contact, there
is the potential for sexual abuse. [Mother] acknowledged that before she raised
the sexual abuse allegation before Judge [], she had brought the children to
the doctor and the doctor indicated they were ok. When asked why she then filed
her application before the court, [Mother] responded that she was giving the Judge
background on the past, what her concerns were and looking out for the welfare
of her children. (tr 4/29/13 at 72, lines 18-20).
[Mother]
testified that she did not discuss the in-camera proceedings with the children.
*11 As soon as she heard that the attorney for the father was seeking to
introduce a CD recording from April 27, 2013, [Mother], who was testifying,
stated: 'Excuse me, I'm going to use the bathroom. [Attorney for Mother], this is a
hearing for October through November." (tr 4/29/13 at 4, lines 5-7). The
court thereafter accepted petitioner's exhibit 13A and 13B into evidence.
Petitioner's 13 consisted of two recordings in which [Mother] is heard asking
the child [Child #1] if she consented to her father making a copy of her
messages and giving it the court and everyone.
[Mother] proceeds to tell [Child #1] that it is a criminal matter. [Child
#1] responds by telling her mother that "you don't involve children in
that." She also tells her mother three times that "I am not a
victim." On the second recording [Child #1] tells her mother that all she
ever says about her father is "lies, lies, lies." When asked whether
she ever discussed the court proceedings with the children, [Mother] testified
that her children might have overheard things occasionally but it has never
been intentional (tr 4/25/13 at 195, lines 1-2). Petitioner's exhibit 11 was
played for [Mother] during cross examination and she denied that it was her voice
or that she left a message for her daughter [Child #1] on April 15, 2013 after
the court advised the parties that it would be conducting in-cameras with the
children.
[Mother]
claimed in her testimony that she disciplines the children by using positive reinforcement
and by giving them instructive things to do and planning activities they enjoy.
She also stated that when the children are in her care she assists them with
their school work, takes them to the library and Barnes and Nobles and takes
them to museums and cultural events
[Mother]
also called [Witness #1] to testify. The court found [Witness #1] to be a
fairly credible witness. [Witness #1] testified that he is an orthopedic
surgeon at the [hospital]. There was a stipulation that [Witness #1] is a
licensed medical doctor, licensed in the state of New York with a specialty in
orthopedics. [Witness #1] testified that he is acquainted with [Mother] and her
children and that he met [Mother] in 2006 when he purchased a house from her.
When he first met [Mother] and the children he saw them monthly when meeting
for brunch after church or when they visited his home. Thereafter, [Witness #1]
saw [Mother] and the children between monthly to once every few months. His
interactions were usually having dinner and traveling to and from dinner. He
approximated that he saw them five to six times in 2012. [Witness #1] testified
he is required by the state and the hospitals to which he is admitted to engage
in certain training such as training in patient's rights and the recognition
and reporting of child abuse. [Witness #1] testified that in 2012 he observed
the children and saw that [Child #2] had become almost reticent, reserved and
quiet but that their interactions with their mother was normal. He indicated
that he discussed these concerns with [Mother] and stated that [Child #2]'s
behavior was one of the signs that a child might not be treated properly. He
subsequently stated that he did not know who, if anyone she might have been
improperly treated by and acknowledged that it could have been [Mother]. He
also stated that [Mother] told him that she believed she was being alienated
from [Child #2]'s life and that [Mother] discussed the relationship between [Father]
and the children with him. [Witness #1] stated that he did not make any recommendations
to [Mother] but he expressed concerns that she was being taken out of the
children's lives and that this could be a sign of sexual abuse.
On
cross examination, [Witness #1] conceded that he is a mandatory reporter for
abuse allegations concerning children and that he did not feel it was necessary
to report an allegation of abuse against [Father]. He also conceded that a
child's reticent or reserved behavior may not in themselves be signs of abuse. [Witness
#1] also testified that [Mother] had not explained to him any of the court orders
that have been issued regarding her parenting time with the children. During
[Witness #1]'s testimony two documents were admitted into evidence: his
curriculum vitae and a letter he had written on behalf of [Mother] in 2007 for
prior court proceedings.
[Witness
#1] testified that every time he sees [Mother] she raises the topic of the
court proceedings including on the occasions where the children are present although
he later stated that the conversations were not in front of the children. [Witness
#1] also testified that he has seen [Mother] yell at the children in response
to their behavior but later qualified this statement and said that it was not
"at the top of her lungs." (tr 4/26/13 at 117, line 14). According to
[Witness #1], he saw [Father] once at a church function when the children were
present. At that time, he saw nothing in [Father]'s interactions with the
children that concerned him. [Witness #1] further testified that he is not an
expert in the area of child abuse and neglect and that he was unfamiliar with
the elements of parental alienation syndrome. He also testified that he told [Mother]
that what he saw in [Child #2]'s behavior was indicative of possible sex abuse,
and he would be surprised to learn that [Mother] made an report regarding sex
abuse of the child [Child #1].
[Mother]
also called [Witness #2] as a witness. [Witness #2] testified that she is a
child protective specialist for the Administration for Children's Services
where she investigates cases of child abuse and neglect and does court ordered investigations.
A two page report dated March 4, 2013 prepared by [Witness #2] was entered into
evidence during her testimony. The report indicates that the children did not
have any visible or suspicious marks or bruises and the children are not
fearful of either parent.
[Mother]
also called [Witness #3] to testify at the hearing. [Witness #3] testified that
she has been employed by New York City Children's Services for six years and has
been a child protective specialist supervisor for three years. She indicated
that she supervised [Witness #2] in the preparation of the court ordered investigation
dated January 29, 2013 although she did not consult with [Witness #2] in the
report's preparation. Prior to [Witness #3]'s testimony, the ACS report dated January
29, 2013 was entered into evidence on consent as respondent's exhibit W. During
her testimony, [Witness #3] testified that she did not meet the children [Child
#2] or [Child #1] but reviewed the report and testified that, at the time of
the January 29, 2013 report, the children had no visible marks or bruises and
the "children have supported that the visits with the mother have been
going well and they have not been fearful of the mother" (respondent's
exhibit W). [Witness #3] also testified
that home visits on the parties' homes as well as mental health evaluations
were completed as a result of the investigation and that no neglect proceedings
were initiated against [Mother] as a result of the investigation. [Witness #3]
testified that [Mother] appeared to be a concerned parent but that she had three
face to face contacts with her during the course of the ACS investigation and that
her behavior seemed "strange." [Witness #3] testified that she was
aware of a prior indicated case against [Mother] for inadequate guardianship.
The
January 29, 2013 ACS report was entered into evidence and states that ACS
indicated a case against [Mother] for inadequate guardianship. The case was
opened on October 16, 2012 and closed on December 7, 2012. According to the
report, "it was determined that the mother failed to exercise a minimal
degree of care in providing proper guardianship for the child [Child #2] in
that the mother lost self control and placed the child at risk for substantial
harm" (respondent's exhibit W, page 2). The report continues to explain
that [Mother] "pulled the child [Child #2] out of the car at a busy intersection
causing the child to fall on her back. The mother lost self control in that she
took the child's soccer bag and threw it out the car and up against the wall
several times. A police report was made and the child also left a voice mail
for the father stating the mother tried to kill her and she was fearful to stay
with the mother and requested the father to pick her up" (respondent's
exhibit W, page 2). The report also stated that collateral resources supported that
"mother's behavior is erratic at times in the presence of the children"
(respondent's exhibit W, page 2)
As
part of ACS's investigation, [Mother] was referred for a mental health
evaluation and evaluated by both a psychiatrist and a psychologist. The
evaluation was entered into evidence by [Mother] (respondent's exhibit W). The
evaluation provided indicates that [Mother] was "very focused on defaming
her ex-husband and placing blame on him with regard to the children.... She was
overly inconclusive in her answers and would frequently incorporate her husband's
wrong doings. She displayed poor insight into how her own actions could be
affecting her children's emotional health" (respondent's exhibit W,
evaluation page 3). The report also indicated that [Mother] was open to family
and individual therapy.
Consistent
with [Mother]'s behavior while testifying in court, the report indicates that [Mother]'s
verbal productions were "typically long winded" and that she
"often did not remain focused on the topic at hand as she seen [sic] more
invested in speaking negatively about her ex-husband than addressing the
question asked of her" (respondent's exhibit W, evaluation page 4). The
report also indicates that "she acknowledges some problems within the
relationship with her ex-husband, but attributes all the blame for their problems
on him" (respondent's exhibit W, evaluation page 6). The report also talks
about [Mother]'s lack of insight and states that her insight was "limited
relating to her involvement in the children's emotional health. She placed much
of the blame on her ex-husband and had difficulty recognizing the role her
actions played on her children's emotional health" (respondent's exhibit
W, evaluation page 7).
[Mother]
also called [Witness #8] to testify at the hearing. [Witness #8] was a credible
witness but her testimony was of limited value to the proceedings. [Witness #8]
testified that she has known [Mother] for eight years through their children
who previously attended the same school three to four years ago and have had
periodic play dates. [Witness #8] testified that during August and September 2012,
she saw [Mother] and the children once a month, possibly more and she observed "normal"
parenting interactions. When asked if she observed [Mother] discipline the children she stated
that she has seen [Mother] issue directions regarding safety but nothing out of
the ordinary and that the children are generally well behaved and responsive to
parental directions. [Witness #8] stated that she has only seen [Father] once
when she was with [Mother] when she dropped the children at the entrance to his
home and [Father] was there to receive the children.
The
court also conducted in-camera interviews with the children in the presence of
their attorney. Both children are bright and articulate young girls. The
children were both able to relate their thoughts, emotions and experiences to
the court. Without revealing the substance of the in-camera interviews, the
court is also considering the experiences of the children in assessing [Father]'s
allegations that form the basis for his modification petition and in assessing
the best interest of the children. The wishes of the children are also being
considered in assessing [Father]'s application to suspend all visitation
between [Mother] and the children.
Conclusions
of Law
In
order to modify an existing custody or visitation arrangement, there must be a
showing of a subsequent change in circumstances so that modification is
required to protect the best interests of the children. Leichter-Kessler v. Kessler, 71 AD3d 1148 (2d Dept 2010); Skeete v. Hamilton, 78 AD3d 1187 (2d Dept 2010). Visitation is a joint right
of a noncustodial parent and a child. Weiss v. Weiss, 52
NY2d 170 (1981). A non-custodial parent is entitled to reasonable visitation
rights and the denial of that right is such a drastic remedy it must be based
on "substantial evidence that visitation would be detrimental to the
welfare of the child." Klutchko v. Baron, 1
AD3d. 400, 405 (2d Dept 2003). See also Kachelhofer v. Wasiak, 10 AD3d 366 (2d Dept 2004); Quinn v. Quinn, 87 AD2d 643 (2d Dept 1982). For visitation to be suspended,
the evidence must show that visitation poses a risk to the child's physical
safety or that it would be harmful to his/her emotional health. Hughesv. Weigman, 150 AD2d 449 (2d Dept. 1989);
EricL. V. Dorothy L, 130
AD2d 660 (2d Dept 1987). Supervised visitation is only necessary where
unsupervised visitation would be detrimental to the welfare of the child. Powellv. Blumenthal, 35 AD3d 615 (2d Dept 2006).
The risk of harm to a child need not be physical but can be emotional harm. CraigS. v. Donna S., 101 AD3d 505 (1st Dept 2012).
Courts have found supervised visitation appropriate under a myriad of circumstances
when it is appropriate to protect the best interests of the children. Bullingerv. Costa, 63 AD3d 735 (2d Dept 2009)
(holding that unsupervised visitation was inappropriate due to father's
inability to control his anger, general disregard for the safety of others and
alcohol abuse); Fisk v. Fisk, 274 AD2d 691 (3d Dept 2000) (supervised
visitation properly directed where father disparaged mother and his
psychological difficulties affected his judgment when interacting with his
children); James Joseph M. v. RosanaR., 32 AD3d
725 (1st Dept 2006) (affirming a determination of supervised visitation where
mother repeated false allegations of sexual abuse against the father subjecting
the child to a vaginal examination and interviews with law enforcement and medical
personnel and interfering in the child's relationship with her father).
Supervised visitation, however, where needed, "is not considered a deprivation
of meaningful access" to a child. Graham v. White, 16
AD3d 583, 583 (2d Dept 2005); Carl J.B. v. Dorothy T., 186
AD2d 736, 738 (2d Dept 1992). The determination as to whether visitation should
be supervised is within the discretion of the court. Ashmore v. Asmore, 92 AD3d 817 (2d Dept 2012). Additionally, a court may not
require a noncustodial parent to attend therapy as a precondition to obtaining
visitation rights or for the resumption of visitation rights. Jonesv. Jones, 185 AD2d 228 (2d Dept. 1992);
Nacsonv. Nacson, 166 AD2d 510 (2d Dept 1990). A
court may, however, under appropriate circumstances, direct a parent to undergo
counseling or treatment as a component of a visitation order. Grassiv. Grassi, 28 AD3d 482 (2d Dept 2006).
Under
Section 656 of the Family Court Act, the court may issue an order of protection
"in assistance or as a condition of any other order made under this part.
The order of protection may set forth reasonable conditions of behavior to be
observed for a specific time by any petitioner or any respondent...." NYFCA § 656. Section 656 further delineates the specific conditions that may be imposed
in such an order which include a stay away order directing a party to stay away
from the home, school, business, place of employment or designated location of
the other party, or the child, to refrain from committing a family offense as
defined in Section 812 of the Family Court Act, to refrain from acts that
create an unreasonable risk to the "health, safety or welfare of the child
and to participate in a educational
program." NY FCA § 656(a), (c) (e) and (f). If a court possesses sufficient
information, it does not have to conduct a separate hearing to determine whether
an order of protection should be issued. Melnitzky v. Melnitzky, 278
AD2d 2 (1st Dept 2000). In Melnitzky, in upholding the motion court's
determinations that the defendant posed a danger to his wife and children, the
court stated that "the court made such findings after having examined the
parties over several court appearances, and it is clear that, even without a
hearing, the court possessed sufficient information upon which to render an
informed decision in the best interests of the children. Id. at 2. An order
of protection issued under Section 656 maybe issued until the youngest child
reaches the age of majority. Abare v. St. Louis, 51 AD3d1069 (3d Dept 2008); Anson v. Anson, 20 AD3d 603 (3d Dept 2005); Morse v. Brown, 298 AD2d 656 (3d Dept
2002). Even absent a party's request for an order of protection, the court may sua
sponte issue an order of protection under Section 656 if
appropriate. Tirado v. Miller, 75 AD3d 153, 159 (2d Dept 2010).
See
also Melody v. Robert M., 103 AD3d 932 (3d Dept 2013); Bronsonv. Bronson, 23 AD3d 932 (3d Dept 2005).
Based
on the testimony elicited at the hearing, [Father] has shown that there has
been a change of circumstances since the entry of the order dated [] rendering modification
of the order necessary to protect the best interests of the children. In
September 2009, Judge [] issued an order that restricted [Mother] parenting
time with the children. In that order, Judge Strauss indicated that any
violations of his order "shall" result in a termination of [Mother]'s
parenting time (petitioner's exhibit 1 at 25). On [], You Honor issued a court
order which further restricted [Mother]'s parenting time after confirming the
report of this Referee issued on []. In that report, the court found that [Mother]
had violated the orders of parenting time which were in effect. The violations
established included: consistently returning the children late from visitation,
returning the children hungry with incomplete homework, removing items from
their school bag, engaging in direct contact with the children's third party
providers and school personnel and attending the children's activities on non
parenting days. Additionally, the report found that [Mother]called the child [Child
#2] a "fucking bitch" in the presence of her sister [Child #1] while throwing
her belongings at her. [Mother] also tried to remove [Child #2] from her school
on a non parenting time day and confronted [Child #1]'s teacher in the child's
presence (petitioner's exhibit 1). Notwithstanding these violations, this
referee recommended that [Mother]'s parenting time be reduced rather than terminated
and the report was confirmed. Since the issuance of that report and the
subsequent court order of [], 2012, however, [Mother] has continued to
engage in a course of conduct in which she violates the court's order and
places the emotional and physical well being of the children at risk.
[Father]
testified that on numerous occasions, [Mother] has attended the children's activities
on day when the children are not in her care. On October 12, 2012, [Mother]
appeared at two soccer practices of the children and remained for 10 to 15
minutes at each practice. She also followed [Father] and the children in her
car bumper to bumper between practice. On October 20, 2012, [Mother] again
attended two separate games of the children when it was not her parenting time.
Moreover, she placed her chair directly next to [Father] and [Child #2],
causing [Child #2] to pull [Father]'s arm and lead him to the other side of the
field. [Mother] proceeded to follow [Father] and [Child #2] to the other side
of the field. On October 28, 2012, [Mother] attended [Child #1]'s soccer game even
though she had forfeited her parenting time due to lateness on October 27, 2012.
She then called the police to the field. [Father] testified that on October 24,
2012 when [Mother] was not scheduled to visit with the children, she drove by
him slowly when he was at [Child #2]'s soccer practice. On another occasion, on
October 26, 2012, when he and [Child #2] were walking on the street, [Mother]'s
car passed in front of them.
[Father]
testified that on October 5, 2012,despite a court order *12 directing that [Mother]
not attempt to contact or otherwise interact with the children's school
faculty, staff or other support members, [Mother] attended a coffee with the
principal. While [Mother]'s memory of the event was unclear during her
testimony and she subsequently denied being present at the event, in the Order to
Show Cause she submitted on November 7, 2012 to the Supreme Court, [Mother] clearly
states that she was present for the event (petitioner's exhibit 19).
[Mother]
has also engaged in erratic and unpredictable behavior in the presence of the children.
On October 12, 2012, in addition to attending the soccer games of the children when
it was not her parenting time, [Mother] followed [Father] and the children
"bumper to bumper" between the two games placing the children's
physical safety at risk. [Father] also testified to events that occured on the
soccer field in Bethpage, New York on October 28, 2012. [Father] testified
that, even though [Mother] was not supposed to have parenting time that day,
she attended [Child #1]'s soccer game. After the game, [Mother] attempted to
physically prevent him and the children from exiting the field on two
occasions. First she pulled her car behind his to block him from leaving his
parking spot. [Mother] subsequently blocked the exit from the soccer field with
her car, exited her car and began taking photographs. During both incidents, [Father]
had to reassure the children and tell them to remain calm because of their
mother's behavior.
On
October 12, 2012, [Mother]'s erratic behavior caused her not only to leave [Child
#1] at the soccer field during her parenting time but also to verbally and
physically assail [Child #2]. [Mother] was present at the [Child #1]'s soccer
game and after an animated discussion with someone, she summarily left the
field with [Child #2] leaving [Child #1] behind despite the fact that [Child
#1] was her responsibility. [Mother] never
returned to pickup [Child #1]. [Father], who was present at the game but was
going to leave, testified that [Mother] left the field between 45 minutes to an
hour before the end of the game and she never returned. [Father] also received
a phone call from [Child #2] telling him that she and her mother would not be
returning to the field.
[Mother]'s
violent behavior toward [Child #2] also appears to be escalating. In the prior report
submitted on August 24, 2012, it was cited that [Father] observed [Mother] call
[Child #2] a "fucking bitch" and throw her book bag, clarinet case
and clothing at her. According to [Father], [Child #2] was crying
uncontrollably and hyperventilating. [Child #1] witnessed these events and attempted
to console her sister. On October 14, 2012, [Child #2] reported to her father
that her mother screamed at her, pulled her head first out of her van, twisting
her arms, and dropped her bag on the pavement and into traffic. [Child #2] told
her father that her mother out of control and had tried to kill her. Although [Mother]
denied that the voice mail message entered into evidence, where [Child #2] says
that her mother tried to kill her and she says she does not wish to be with her
mother, contains her daughter's voice or, alternatively, that it may have been
coerced, [Child #2] was with her mother when she left the voice mail and her
voice was identified by her father for the court (petitioner's exhibit 3).
While [Mother] disputes the allegations, ACS also indicated a case against [Mother]
for inadequate guardianship based on the incident (see respondent's W in
evidence). Subsequently that day, [Mother] attempted to force [Child #2] to get
in her car so [Mother] could take her home, but [Child #2] pushed her away and
went home with her father.
[Mother]
has also engaged in a pattern of behavior designed to negatively impact the children's
relationship with their father and with one another. The [] court order specifically
directs that "neither party shall discuss the litigation or court proceedings
with the children nor disparage the other parent in the presence of the
children." Upon learning that the court would be conducting in-camera
interviews with the children, [Mother] immediately called [Child #1] after the court
appearance and addressed each and every allegation in the petition. She
instructed [Child #1] what to say in response to the allegations in detail, how
she should describe her mother, the relationship they have, and what she should
tell the court she wishes going forward. Notably, [Mother] also instructs [Child
#1] to demean her sister [Child #2] by alleging that [Child #2] is the one who behaves
inappropriately and has "tantrums," "overdramatizes
things," and has hit her (petitioner's exhibit 11). Although the court stressed
to the parties that there were not to discuss the proceedings with the children
and were not to speak to the children about the in-camera proceedings once they
were completed, [Mother] proceeded to do so the first opportunity she had. The
court heard an audio recording made on April 27, 2013, the day after the
in-camera, in which [Mother] questions [Child #1] about the voice mail she left
her daughter prior to the in-camera. [Mother] questions [Child #1] about
whether she consented to her father copying her messages and tells [Child #1]
that it is a criminal matter. Sadly, it is [Child #1], taking on the role of an
adult, who informs her mother that "you don't involve children in
that." As [Mother] continues to question her, [Child #1] is then heard
saying to her mother in a very agitated tone: "I am not a victim, I am not
a victim, I am not a victim. I am going inside" (petitioner's exhibit
13A). In a second recording, [Child #1] says to her mother: "All you can
say about dad is lies, lies, lies." In this recording [Child #1] also
sounds very agitated and upset. She continues to tell her mother: "You're
just making it up to be with us. Then why do you lie? Maybe get some real reasoning"
(petitioner's exhibit 13B). It is clear from[Child #1]'s statements that her mother
talks about the court proceedings, speaks negatively about her father and that
she wants her mother to stop. It is also clear from the upset, agitated, and,
at times, angry way [Child #1] is speaking in the recordings that her mother's
behavior is impacting her negatively. Moreover, although [Child #1] has not, to
this court's knowledge, been verbally or physically assailed by her mother in
the same manner as [Child #2], [Child #1] has witnesses her mother's violent
and inappropriate actions toward her sister. The court also found [Mother]'s
statement that [Child #2] was "distraught" on October 14, 2012, the
day that [Mother] left [Child #1] at the soccer field, to be very telling. [Mother] stated that "[Child #2] was distraught.
[Child #2], you know, likes to be with her sister. And she likes to know that
her sister is safe." (tr 4/19/13 at 58-59, line 24 et seq.). [Child #2]'s
reaction, as described by her mother, tells the court that [Child #2] has
safety concerns for both herself and her sister.
[Mother]
also made unfounded allegations of sexual abuse against [Father] on several occasions. [Mother] filed allegations with the
Administration for Children's Services in November 2012. As a result of those
allegations, her daughter [Child #1] was subjected to a vaginal examination. During
the trial, [Mother] made several unbelievable allegations: that she did not
believe that the children would be subjected to medical examinations despite
the allegations she made, and even denying that she made allegations of sex
abuse at all. At one point, [Mother] blamed [Father] for bringing [Child #1] to
the doctor for the exam, claiming that he did so of his own accord despite the ACS
investigation. [Mother] also claimed that the wrong child was evaluated by ACS.
[Mother] raised her allegations in the Supreme Court on November 7, 2012 and
November 8, 2012 but was unable to provide any specific information to the
court. She directly told the court that she had take the children to the doctor
who indicated that the children were "ok." [Mother], however,
persisted in raising the allegations again in additional court documents
submitted on November 13, 2012, November 15, 2012 and on January 18, 2013. [Mother]
conceded that the investigation by ACS was deemed unfounded and closed but,
most incredibly, still maintained that the allegations could still be true or
that there could be the potential for them to be true. Although [Mother]
offered [Witness #1] as a witness ostensibly to justify the allegations she
made to ACS, [Witness #1] testified that he did not make any recommendations to
[Mother], he did not feel, as a mandated reporter, that it was necessary to
make a report of abuse against [Father] and he conceded that he expressed concerns
about [Child #2] and not [Child #1] during his contacts with the children. [Witness
#1] in fact testified that he would be surprised to learn that [Mother] made allegations
of sex abuse concerning the child [Child #1]. He also conceded that [Mother]
could have been the one treating [Child #2] improperly.
[Mother]'s
behavior in the courtroom was not only inappropriate as previously noted but simply
peculiar at times raising additional concerns for the court about her mental
health. On one occasion, [Mother] stated that the attorney for the father, who
was simply conducting a cross examination of her, was making threatening
gestures toward her. On another occasion, [Mother] began spontaneously laughing
during her testimony after accusing the attorney for the children of making fun
of her attorney (tr 4/19/13 at 49). On another occasion, in the middle of her
testimony while sitting in the open court room, [Mother] she stated that she
wanted to file a police report because she believed her safety was threatened
by the court and by others in the room, (tr 4/29/13 at 15). [Mother] began whispering to her lawyer while
testifying and when admonished by the court
to stop, she responded by saying "But I feel them mocking me. They are
mocking me." (tr 4/25/13 at 31, lines 5-6). As previously noted, [Mother]
broke her glasses while testifying and subsequently threw them across the room.
[Mother] also made claims that the court officer in the part was shouting at
her and disparaging her when the officer merely instructed her to be seated and
remain quiet (tr 4/15/13 at 39, lines 23-24). On April 19, 2013 when the
parties and counsel were informed that the case were being transferred to a
different courtroom, [Mother] immediately exited the courthouse and had to be
directed to return. *13 When the matter was called into the courtroom, [Mother]'s
explanation for leaving the building was that "I was being harassed by a couple
of people. I felt my safety was in jeopardy at that time!" (tr 4/19/13 at
3, lines 23-24). Both [Witness #1] and [Witness #8] testified that they observed
normal parent child interactions between [Mother] and the children. Both
individuals testified, however, that the duration of their contacts with [Mother]
and the children were limited. The testimony of these witnesses leaves the
court to believe that either [Mother] only has the ability to control her
behavior for limited periods of time or that she can control her behavior and
chooses to do so only under certain circumstances.
At
the completion of the trial, the attorney for the father requested suspension
of visitation while the attorney for the children requested therapeutic
supervised visitation for [Child #2] and a maintenance of the parenting time
schedule for [Child #1]. In making its recommendations, the court has considered
the positions of counsel and the experience and feelings of the children. In
any custody or visitation matter, however, it is the court's responsibility to
determine what is in the children's best interests. In making its
recommendations, the court recognizes that there are some positive aspects to
the relationship the children share with their mother. [Mother]'s negative and violent
behavior, however, is escalating as is her inability, or unwillingness, to
observe the limitations established by the court orders to the detriment of her
children. At this juncture, continued unsupervised contact would be detrimental
to the children based on [Mother]'s continuing and escalating, unpredictable,
erratic and even violent behavior toward and in the presence of her children. [Mother]
has shown that she is completely oblivious to her children's needs and has failed
to take any responsibility for her actions. She consistently blames [Father] for
her current parenting time schedule and has no insight into her own behavior.
The court has serious concerns about [Mother]'s ability to act appropriately in
the presence of the children as well as the children's safety while in her
care. In only a one month period after [Mother]'s parenting time was
substantially reduced, her conduct has deteriorated leading to the filing of
this instant application.
Recommendations
Completion
of psychological evaluation of [Mother]
In
the psychological evaluation completed by ACS, it concludes that
"collateral sources should
be reviewed and interviewed to obtain a more thorough investigation into her functioning
and any psychopathology." Although an evaluation was completed of [Mother],
the evaluation indicates that further assessment is necessary. The evaluation
also indicates that an Axis III diagnosis could not be assessed. Based on the
report submitted, the history of the proceedings, [Mother]'s behavior during the proceedings, the
testimony heard and the evidence submitted, I am recommending a full
psychiatric assessment of [Mother]. [Mother] should also be directed to comply
with any recommendations made by the psychiatrist including therapy and
medication as a component to a parenting plan.
Parenting Time
Although [Father] requested the suspension of
visitation in his pleading, I am recommending that [Mother]'s parenting time be
modified to allow for therapeutic supervised visitation with both children. *14
Such visitation ensures that the children will be able to maintain a relationship
with their mother but in a safe environment under stable conditions. [Mother]'s
visitation should be supervised by a therapeutic social worker and said social
worker should be directed to provide reports to the court every 90 days. Counsel
should have access to the reports upon request. Counsel may review the reports
with the parties but shall not provide copies of the reports to the parties.
Visitation should be community based and at dates and times as arranged with
the social worker and the parties. [Mother], however, should be entitled to a
minimum of six hours of visitation bi-weekly and should be permitted additional
time if scheduling and finances allow. Although [Mother] has private counsel in
this proceedings, she should be given the opportunity to submit
financial documentation to the court to determine her ability to paid for the
visitation. *15 See Cervera v. Bressler, 50 AD3d 837 (3d Dept 2008).
If this recommendation is confirmed, [Mother] should be given two weeks from
the date of the confirmation to submit the following documentation: the last
four year's tax returns, a notarized financial disclosure form, copies of all bank
statements and brokerage statements. [Mother] should also submit a notarized letter
detailing her current means of support as well as an accounting of the moneys
received from the sale of a home to [Witness #1] in 2006. *16 The visitation
can be supervised by Comprehensive Family Services or by a social worker who is
approved by the Appellate Division, Second Department. If this recommendation
is accepted, all counsel, after conferring with their clients, may either
consent to one supervisor and submit the name to the court jointly for the
issuance of an order, or each attorney should submit the name of a supervising
agency or social worker to the court for the court's selection and issuance of the
order. These submissions should occur within two weeks of confirmation of this report.
If
the recommendation for therapeutic supervised visitation is accepted, other
portions of the [] should also be continued. Notwithstanding any order of
protection that might be issued, [Mother] should be directed only to attend the
children's activities during her parenting time. [Mother] shall not have any
contact with the children's babysitters or other third party providers
providing services to the children. [Mother] shall not attempt to contact or
otherwise interact with the children's school faculty, staff or other support
members. [Mother] shall not attend mass at [] Church in [], New York on Sundays
so long as the children attend that Church. Neither parent shall discuss the
court proceedings or the litigation with the children nor disparage the other
parent in the presence of or to the children.
Order
of Protection
Based
on the record before the court, I am recommending that an order of protection
be issued
against [Mother] on behalf of the children and [Father] in order to protect the
safety and welfare of the children. Having conducted a lengthy hearing in these
proceedings, it is clear that such an order is necessary to protect the safety
and welfare of the children. [Mother] has continually violated court orders by
appearing at the children's school as well as appearing at the children's
sporting events when it was [Father]'s
parenting time. When she appeared at the children's sporting events on multiple
occasions in violation of the court order, she intentionally sat right next to [Father]
and [Child #2], and followed [Father] and [Child #2] when [Child #2] directed
her father to move. She followed [Father] and the children while they were
driving in the car bumper to bumper placing their safety at risk. She has
driven by [Father] as well as [Child #2] at the children's events when it was
not her parenting time. She blocked the children and [Father]'s egress from a
parking spot and a soccer field with her car. She has also repeatedly made
false sex abuse allegations against [Father] thereby subjecting [Child #1] to a
vaginal examination at the age of 12. On October 28, 2012, she verbally and
physically attacked her child [Child #2] causing [Child #2] to tell her father
that [Mother] was "out of control." [Mother]'s behavior has been
erratic and violent at times. Under Section 656 of the Family Court Act, I am
recommending that an order of protection be issued for [Father] and the
children directing that [Mother] not assault, menace, harass them or engage in
any unlawful conduct and that she be directed to stay away from the children
and their school subject to court ordered visitation. The order should also
direct that [Mother] not use any corporal punishment on the children or discuss
the litigation with the children. The order of protection should remain in
effect until [Child #2] reaches the age of 18. *17
Jamaica,
NY
July
2, 2013
Respectfully
Submitted
Court
Attorney Referee
*1
[Father] identified three witnesses and [Mother] identified five to six
witnesses.
*2
On April 29, 2013, counsel for [Mother] sought to introduce a court report
prepared by [Witness #2] which contained attachments from collateral sources
over the objection of counsel for the father and counsel for the children.
After a lengthy discussion between counsel and the court, all counsel consented
to the two page report prepared by [Witness
#2] dated [], 2013 being entered into evidence as respondent's exhibit V. On
May 29, 2013, [Witness #2]'s attorney was present in court and indicated that [Witness
#2] was unavailable due to unexpected family medical leave. [Witness #3], Witness
#2]'s supervisor was present. The attorney for [Mother] indicated that he was prepared
to take [Witness #3]'s testimony. Counsel also indicated that he was seeking again
to enter into evidence the attachments to [Witness #2]'s report from collateral
resources and that his only need to inquire of [Witness #2] was for that
purpose. He indicated that if there were a consent to the attachments being
entered into evidence, he would no longer need to inquire of [Witness #2].
Counsel for the father and the attorney for the children objected to the court delaying
the proceedings for [Witness #2]'s appearance stating that the collateral
documents could not be authenticated through the ACS worker and indicating that
they had no cross examination based on the testimony already elicited. The
court denied an adjournment and marked the testimony of [Witness #2] as
completed. The court stated that it would not grant a continuance only for
counsel to seek to authenticate hearsay documents prepared by collateral resources.
The portion of the report completed by the caseworker had already been admitted
into evidence on consent. The report prepared by [Witness #2] did not make
recommendations nor was [Witness #2] called an expert witness. Although [Witness
#2] was not an expert witness, the court drew an analogy between a court
ordered investigation and a forensic report where it has been held to be error
to allow the admissibility of a forensic report that contains hearsay
collateral information over the objection of a party.
*3
The attorney for [Mother] presented subpoenas to the court for its signature on
Friday afternoon, May 31, 2013. On June 3, 2013, the attorney indicated that
the subpoena for [Witness #5] was served the morning of June 3, 2013 but he was
not working and that he could not confirm service of the subpoena on [Witness
#4].
*4
On June 5, 2013, incomplete affidavits of service of the subpoenas were
provided to the court. For example, the portions of the subpoenas containing
the name of the person who effectuated service and where service was
effectuated were blank. The portions of the subpoenas that were actually
completed appeared to the court to have been completed by [Mother].
*5
The court respectfully indicated to counsel for [Mother] that such an
application should have been made in writing prior to the commencement of the hearing.
*6
A written report dated April 19, 2013 was submitted to your Honor, the
application was granted and an order was issued on April 19,2013 temporarily
suspending all contact between [Mother] and the children pending the completion
of the in-cameras. This Referee scheduled the in-cameras for April 26, 2013
noting that [Mother] was not scheduled to visit with the children the weekend
of April 20th and April 21st. Effectively, the order prevented telephone contact
between [Mother] and the children which is not specifically provided for in the
current order of visitation.
*7
For example, during a discussion about discovery, [Mother] interrupted the
attorney for the children and shouted "Mind your own business and recuse
yourself." (tr 4/16/13 at 21, lines 11-12). During the testimony on April
29, 2013, [Mother] told the attorney for the father when being cross examined
that he was "rambling on a tangent" and "...it's like you're babbling."
(tr 4/29/13 at 107, line 20; at 108, lines 7-8).
*8
On the morning of April 19, 2013, counsel and the parties were advised by
Lieutenant []
of the Uniformed Court Officers that the proceedings would be heard in a different
courtroom. Counsel and the parties were instructed to proceed immediately to
part 40 in the family court. According to Lieutenant [], [Mother] thereafter
left the building and had to be instructed to return for the proceedings.
*9
On April 15, 2013, [Mother] continually interrupted the court proceedings by
calling out and interjecting when the court was addressing her counsel's motion
to dismiss the petition. After the court officer instructed her as follows:
"Ma'am, have a seat and be quiet." (tr 4/15/13 at 39, lines
23-24), [Mother] claimed that she wanted
to make a complaint against the officer for the way she has been treated
alleging that she is "being shouted at and disparaged, and he has no right
to treat me that way." (tr 4/15/13 at 40, lines 10-12).
*10
A motion to vacate the default judgment filed by [Mother] in the prior
proceedings before the court was denied on December 11, 2012.
*11
The in-camera interviews with the children occurred on Friday, April 26, 2013.
*12
Both a [], 2012 court order and the [], 2012 court order prohibited [Mother]
from being present at the children's schools for such an event.
*13
As previously noted, this information was provided to the court by Lieutenant [].
*14 In his Order to Show Cause, [Father] requests
that the court grant any other relief it deems just and proper. Moreover, the
court can conform the pleadings to the proof established at the hearing.
*15
Although the court can consider issuing a 722-c order if [Mother]'s financial circumstances
are appropriate for one, that order will only allow [Mother] to have a limited number
of hours of supervised visitation with the children.
*16
In the prior report submitted to the court in [] 2012, the court detailed [Mother]'s
failure when directed to provide required financial documentation to the court.
*17
The Orders of Protection are subject to modification in future proceedings
provided that there is a change of circumstances.
