Background Petitioner Mother YYW (“Petitioner”) filed a petition seeking to modify two prior final orders, which denied her custody and expressly prohibited visitation with her sons R.G. and W.G. (“R.,” “W.” and together “the subject children”). The orders gave Respondent father Z.G. (“Respondent”) full legal and physical custody of the subject children. 2016 Neglect and Abuse Proceedings On or about September 17, 2016, Hon. Ilana Gruebel found clear and convincing evidence that Petitioner severely abused, abused and neglected R., and consequently derivatively severely abused, abused and neglected W. See Decision on Fact Finding, dated September 17, 2016, p. 5, Respondent Exhibit D. Judge Gruebel also found a preponderance of the evidence that Respondent neglected R. and therefore derivatively neglected W.. See id Judge Gruebel based these findings on testimony provided by the parties and medical professionals and supporting evidence. Respondent testified that Petitioner was the primary caregiver of R., who was two years old at the time he sustained catastrophic and permanent injuries. See id. at pp. 2, 4. At that time, Respondent was pregnant with W.. Respondent was employed in Far Rockaway and his work schedule dictated that he could only return home to Petitioner and R. two to three times a month. See id. In the fact-finding, Dr. Ingrid Walker Descartes testified that she consulted on R.’s injuries after he was brought to the hospital with severe injuries as a specialist in child abuse pediatrics. See id. at p. 3. Dr. Walker Descartes testified that to a reasonable degree of medical certainty, R. was physically abused, including being severely shaken, which resulted in permanent brain damage. See id. The brain damage that R. suffered resulted in permanent injuries, including inability to breathe on his own, inability to eat on his own, complete immobility, and loss of sight. See id. Dr. Walker Descartes further testified that “there were 49 different marks and bruises counted on R.’s body,” some of which were “patterned shapes and teeth marks,” and others were “patterned marks of scratches and pinches.” See id. In addition, Dr Walker Descartes testified at “there were puncture marks on his face in various stages of healing.” See id. Petitioner’s Conviction and Incarceration In 2016, Petitioner was convicted of Assault in the First and Second degrees, and Reckless Assault of a Child. See Department of Corrections and Community Supervision Inmate Information, printed October 31, 2021, p. 2, Respondent Exhibit F. Petitioner is sentenced to a maximum of 20 years. 2017 Custody and Visitation Proceedings R. was removed from the parties’ care during the pendency of the proceeding and has since either been hospitalized or institutionalized. See Order of Disposition, dated December 6, 2016, pp 2-3, Respondent Exhibit C (“Respondent Exh. C”). W. was born in the Rikers Island Correctional Center while Petitioner was incarcerated. Thereafter, W. was placed in non-kinship foster care and was released into Respondent’s custody in or about December 6, 2016. See id. Judge Gruebel’s December 2016 order contained several directives that Petitioner was required to follow, including that she must complete classes on anger management and parenting skills, and “that she not have any contact with either subject child.” Id. at 2. On or about February 15, 2017, Judge Gruebel awarded Respondent legal and physical custody of W.. See Final Order on Petition for Custody and Visitation after Hearing, dated February 15, 2017, pp. 1-2, Respondent Exhibit E. Judge Gruebel also stated that Petitioner “is permitted NO visitation with the subject child, without prior Court approval.” See id. at p. 2 (emphasis in original). On or about May 3, 2017, Judge Gruebel awarded Respondent legal and physical custody of R., finding that he is capable of ensuring that R. receives care in an appropriate institution for the rest of his life. See Final Order on Petition for Custody and Visitation, dated May 3, 2017, p. 2, Respondent Exhibit B (“Respondent Exh. B”). Judge Gruebel went on state that THE [Petitioner], [Y.Y.W.] IS NOT PERMITTED ANY VISITATION WITH THE SUBJECT CHILD, R. [G.], WITHOUT PRIOR COURT APPROVAL. THE COURT FINDS THAT ANY CONTACT WOULD BE INIMICAL TO THE CHILD’S WELL BEING, BASED ON FINDINGS BY THIS COURT CLEAR AND CONVINCING EVIDENCE THAT THE MOTHER SEVERELY ABUSED THIS CHILD AND DERIVATIVELY ABUSED HIS SIBLING, W. [G.]. (See Decision and Order of Fact Finding, dated September 17, 2016, JFC). See Id (capitalization in original). 2019 Petition to Modify the Prior Final Orders on Custody and Visitation On or about February 8, 2019, Petitioner brought two petitions seeking a modification of the 2017 custody orders. Through her petitions, Petitioner sought supervised visitation, phone and mail contact with the two subject children. See Petition, dated February 8, 2019. Therein, Petitioner argued that she should be granted visitation with the subject children because she completed “programs” while incarcerated, specifically Anger Replacement Training and Living Safely Without Violence. See id. at p. 4. The hearing took place virtually because of the ongoing COVID 19 pandemic on November 3, 2021 and November 4, 2021. The parties, counsel for Petitioner, counsel for Respondent, counsel for the subject children (“AFC”) and a Foochow language interpreter were present both days. Petitioner stated that she is currently incarcerated at the Bedford Hills Correctional Facility (“BHCF”). See Trial Transcript of November 3, 2021, p. 13. Although Petitioner brought two separate petitions seeking visitation with both subject children, she clarified that she is only seeking visitation with W.. See id. at p. 18. Petitioner last saw W. at or around six years ago, when W. was approximately a year old. See id. at p. 18. Through limited testimony, Petitioner argued that she should be permitted visitation with W. because there was a change in circumstances since Judge Gruebel prohibited the same, specifically that she participated in seven different classes offered by BHCF. See Trial Transcript of November 3, 2021, p. 17. Petitioner testified that she completed “all the parenting programs,” a “trauma class,” and a basic course in non-violent communication. See id.; see also Certificates, Petitioner’s Exhibits 1, 2 and 3. Each class met once a week for approximately five or six weeks. See Trial Transcript of November 3, 2021, p. 17. Petitioner confirmed that the only changed circumstance was that she completed the aforementioned classes, and that there was “nothing [else] new.” See Trial Transcript of November 4, 2021, p. 7. Petitioner refused to answer whether she needed additional services relating to “severe child abuse.” See Trial Transcript of November 3, 2021, p. 20. Petitioner was evasive when asked whether it is in W.’s best interest to have visits with her. Petitioner stated “[y]ou cannot say there’s no benefit. At least he will know who is his mother [sic].” See id. at p. 27. When asked how visits in a maximum security prison with a virtual stranger would impact W., Petitioner replied “I don’t see any bad inference. At least he had — he will get chance to know who is his mother [sic].” See id. Petitioner attempted to reassure the Court that W. “would not be hurt because all of this personnel [sic] will be around” during possible visits with her at BHCF. See Trial Transcript of November 3, 2021, p. 18. In the absence of any friends or family who would volunteer to transport W. to visit with her, Petitioner suggested enlisting Administration for Children’s Services or “the parenting class” to somehow facilitate transportation. See id. Petitioner repeatedly refused to testify regarding her abuse of R., ensuing conviction, incarceration or neglect proceeding when she was cross examined by Respondent’s counsel or the AFC. See Trial Transcript of November 3, 2021, p. 16. Petitioner also testified that she did not abuse R., which the Court does not find credible. See id. at p. 20. Furthermore, Petitioner stated that she did not recall Dr. Walker Descartes’ testimony in the neglect proceeding regarding the 49 marks, bruises and bites found on R.’s body when she brought him to the hospital. See id. at p. 13. Respondent’s counsel entered medical records from the residential health care facility where R. is institutionalized. As a result of the “non-accidental” traumatic brain injury caused by Petitioner’s abuse, R. is in a permanent vegetative state and, with almost complete certainty, will never recover. See Medical Records, Respondent’s Exhibit A (“Respondent Exh. A”). These records describe the ongoing interventions necessary to keep R. alive and as comfortable as possible. Interventions include: permanent utilization of a feeding tube; permanent utilization of breathing assistance; perpetual monitoring for bed sores and hygiene needs as R. is incontinent and bed-bound; responding to R.’s physical reactions as a form of communication because he is blind and completely non-verbal; utilizing trauma-informed care because of R.’s history of severe abuse. See pp. 22, 30-31, 33, 48, 54, 176. Legal Analysis: To modify a prior final order of custody or visitation, a petitioner must demonstrate a change in circumstances that necessitates a modification to the previous order. See Gurewich v. Gurewich, 58 AD3d 628, 629 (NY App. Div. 2d Dep’t 2009), quoting Fallarino v. Ayala, 41 AD3d 714, 714 (NY App. Div. 2d Dep’t 2007). The change in circumstances does not need to be “extraordinary,” but instead simply must necessitate a change to serve the subject child’s best interests. See Rivera v. Fowler, 112 AD3d 835, 836 (NY App. Div. 2d Dep’t 2013). The best interests of the subject child are evaluated by reviewing the totality of the circumstances. See Pagan v. Gray, 148 AD3d 811, 812 (NY App. Div. 2d Dep’t 2017); see also Eschbach v. Eschbach, 56 NY2d 167, 174-175 (1982). Circumstances to be evaluated include the existence of the prior award, particularly if the award “results from the Trial Judge’s judgment after consideration of all relevant evidence” (Eschbach, 56 NY2d at 172), stability of the subject child’s life (see Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 (1982)) and relative fitness of the respective parents (see id.). Cases where an incarcerated parent seeks a modification of a visitation order are evaluated utilizing the same standard as parents who are not incarcerated, and likewise also “depend to a great extent upon an assessment of the character and credibility of the parties and witnesses.” Parker v. Hennessey, 156 AD3d 885, 885 (NY App. Div. 2d Dep’t 2017). Visitation with the non-custodial parent is presumed to be in the subject child’s best interests, even when the parent is incarcerated. See Torres v. Pascuzzi-Corniel, 125 AD3d 675, 676 (NY App. Div. 2d Dep’t 2015), quoting Georghakis v. Matarazzo, 123 AD3d 711, 711 (NY App. Div. 2d Dep’t 2014). This presumption may be rebutted by a preponderance of evidence if visitation with the incarcerated parent would be inimical to the subject child’s wellbeing. See Torres v. Pascuzzi-Corniel, 125 AD3d at 676, quoting Granger v. Misercola, 21 NY3d 86, 90, 92 (2013). Such evidence can be presented through exhibits or testimony. The court may draw a negative inference from a party’s refusal to testify, even in a civil matter involving a related criminal case with pending charges. See Matter of Alanah M., 96 AD3d, 757, 758 (NY App. Div. 2d Dep’t 2012). Denial of the visitation rights of an incarcerated parent is a “drastic remedy” which should only be sought when there are “compelling reasons” demonstrating that visitation with an incarcerated parent will be detrimental to the best interests of the subject child. See Kenneth G. v. Aricelis A., 2007 NY Misc. LEXIS 7830, *22 (Fam. Ct. NY Cnty 2007), citing Lonobile v. Betkowski, 261 AD2d 829, 829 (NY App. Div. 4th Dep’t 1999). Appellate Divisions across the state have cited a body of factors to consider when determining if visitation with an incarcerated parent is in a subject child’s best interest. Factors include the distance the subject child would need to travel to visit with the incarcerated parent, the method of transportation to be utilized, who would accompany the subject child, “the severity of petitioner’s sentence, the tender age of the [subject] child, petitioner’s virtually nonexistent previous relationship with [the subject child],” and whether the subject child has “visitation experience in a prison setting.” Ellett v. Ellett, 265 AD2d 747, 748 (NY App. Div. 4th Dep’t 1999); see also Marcial v. Sullivan, 296 AD2d 551, 1-2 (NY App. Div. 2d Dep’t 2002), Wispe v. Leandry, 63 AD3d 853, 853 (NY App. Div. 2d Dep’t 2009). Notably, in Kenneth G. v. Aricelis A., the court stated “[c]learly, in cases where the parent is incarcerated because of a violent crime committed against a child, visitation has been denied.” See id. The Appellate Division, Second Department determined that visitation with a parent who is incarcerated because of a violent crime committed against a child’s sibling rendered visitation with that parent is against the subject child’s best interest. See Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999); see also In re Tamara H., 228 AD2d 598, 598 (NY App. Div. 2d Dep’t 1996) (Father was convicted for violently assaulting the subject child’s sibling, and was found to collaterally abused the subject child. Thereafter, visitation was determined to be contrary to the subject child’s best interest and denied.), Rodriquez v. Van Putten, 309 AD2d 807, 807 (NY App. Div. 2d Dep’t 2003), Velasquez v. Kattau, 167 AD3d 912, 913 (NY App. Div. 2d Dep’t 2018) (Father was convicted for sexually assaulting the subject child’s stepsister. Thereafter, visitation was determined to be contrary to the subject child’s best interest and denied.). Application: Upon consideration of the pertinent factors, this Court denies both petitions. Petitioner failed to demonstrate by a preponderance of the evidence that circumstances sufficiently changed such that visits between her and the subject children are in R. and W.’s best interests of the subject children. Moreover, Respondent successfully rebutted the presumption that Petitioner should have visitation with the subject children through the introduction of extensive medical records substantiating the lasting effect of Petitioner’s abuse of R.. As guided by caselaw, the Court carefully considers Judge Gruebel’s ruling that Petitioner severely abused R., derivatively severely abused W., denied visitation with R. and W. after she heard extensive testimony and reviewing all available evidence. See Respondent Exh. B. Judge Gruebel specifically prohibited visitation with R. on the basis that allowing the same would be inimical to his wellbeing. See id. Petitioner was evasive and obstinate in her refusal to even acknowledge the circumstances under which she lost custody and visitation rights to the subject children. For instance, after refusing to answer any questions regarding her abuse of R., derivative abuse of W., conviction, incarceration, or the neglect and abuse proceeding before Judge Gruebel, Petitioner repeatedly stated “it’s my right. I am not going to answer this type of question.” Trial Transcript of November 4, 2021, p. 4, 13. Petitioner even requested that the Court prohibit counsel for Respondent from asking questions about previous events. See Trial Transcript of November 3, 2021, p. 21. However, Petitioner stated that she would permit counsel for Respondent to ask questions about her behavior in BHCF (see Trial Transcript of November 3, 2021, p. 26). The Court draws a negative inference from Petitioner’s failure to testify. At best, Petitioner’s actions demonstrated a lack of understanding about the horrific nature of her actions and their impact, and at worst demonstrated a fundamental disregard of the same. At one point, Petitioner denied abusing R.. See Trial Transcript of November 3, 2021, p. 20-21. The Court does not find Petitioner’s testimony credible in this regard. Petitioner continued to ignore the inconvenient truth of her severe abuse by completely disregarding the petition she filed seeking visitation R.. Petitioner testified that she only wanted to see W., and Petitioner’s inquiries and testimony was focused on W.. See Trial Transcript of November 3, 2021, p. 18. Petitioner argued that her completion of seven classes while incarcerated at BHCF is a sufficient change in circumstances to dictate that it is in W.’s best interests to visit with her in a maximum-security prison. Each class lasted between five and six weeks, and Petitioner asserted that she took all available parenting classes. However, Petitioner’s assertion that availing herself of seven classes falls pitifully short of a change in circumstances. Foremost, Petitioner was ordered to take anger management and parenting class by Judge Gruebel in her December 6, 2016 Order on Disposition. See Respondent Exh. C. Accordingly, Petitioner’s completion of various classes does not demonstrate intrinsic motivation to becomes a better parent and less violent person, but instead demonstrates her ability to follow a court order. Moreover, Petitioner did not substantively address in any capacity how these classes will practically assist her in being a better parent to W.. Petitioner also refused to answer whether she needed additional services to address, and hopefully prevent, the severe abuse R. suffered. Petitioner was unable to articulate how visits with her would be in W.’s best interests. When asked, Petitioner stated “you cannot say there’s no benefit. At least he will know who is his mother [sic].” See Trial Transcript of November 3, 2021, p. 27. Petitioner was unconcerned about how W. may react to seeing his mother for the first time in six years in the setting of a maximum-security prison. Petitioner also did not address how W. may feel if made to visit her, in light of the fact that she is sentenced to be imprisoned for 20 years because of her severe abuse of R.. Lastly, Petitioner also did not suggest a reasonable means to transport W. back and forth from the visit. Petitioner vaguely suggested “parenting classes,”1 ACS, or Respondent may facilitate transportation. Petitioner seemed focused on the benefit she would receive from visits with W. to the almost complete exclusion of even considering how any such visits would impact W.. Lastly, Respondent successfully rebutted the presumption that Petitioner should have visitation with the subject children. By way of counsel, Respondent introduced medical records from the institution caring for R. which demonstrate the complete devastation that Petitioner’s abuse caused. See Respondent Exh. A. The records are comprehensive and describe each specialty that provides life-sustaining care to R.. R. is non-verbal, blind and cannot ambulate. See id. R. cannot, and likely will not ever, use the bathroom independently, breathe or eat without medical intervention. See id. The lasting effect of Petitioner’s abuse of R. renders her unfit to parent either subject child at this time. Petitioner’s lack of fitness, including her recalcitrant attitude towards her past actions and their impact on W., render visits with the subject children against their best interests. Conclusion: BASED on all the above, It is hereby ORDERED, that the petitions are dismissed with prejudice after trial. Dated: January 26, 2022
