PLEASE TAKE NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER On or about June 14, 2024, the petitioner the Administration for Children’s Services (hereinafter referred to as “ACS”) filed Family Court Act (“FCA”) Article 10 neglect petitions on behalf of the subject children L.D., I.D. and J.D. (hereinafter referred to as the “subject children” or “L.D.” “I.D.” and “J.D.”) against the respondent Mr. K.D. (hereinafter referred to as the “respondent father” or “K.D.”). The respondent father now moves for an Order permitting him to have once a week supervised virtual visitation with the subject children while he is incarcerated. For the reasons set forth below, the motion is denied. The neglect petitions in this case assert, inter alia, that the respondent K.D. failed to provide the subject children with proper supervision and guardianship based on allegations of excessive corporal punishment on the subject child J.D., who is two years old, and allegations of perpetrating acts of domestic violence against the non-respondent mother Ms. A.M. (hereinafter referred to as the “non-respondent mother” or “A.M.”) in the presence of the children. Specifically, the petitions allege that on or about March 20, 2024, the respondent father slapped J.D. across the face, causing redness, swelling and bruises; that on or about April 5, 2024, the respondent father accused the non-respondent mother of cheating and then proceeded to strangle her, punch her in the face, menaced a metal stick at her while in the presence of the subject children and that the non-respondent mother sustained strangulation marks to her neck and bruises to her leg and arms; that on or about April 7, 2024, the respondent father threatened to kill the non-respondent mother with a sledgehammer, while in the presence of the subject children, causing the non-respondent mother to fear for her safety and run out of the home seeking police assistance; that on April 8, 2024, a full stay away order of protection was issued against the respondent father on behalf of the non-respondent mother and the subject children in Criminal Court; that on or about June 10, 2024, the respondent father entered the non-respondent mother’s apartment, without the consent of the non-respondent mother and in violation of the Order of Protection, strangled the non-respondent mother and physically assaulted her using a sledgehammer and a razor in the presence of the subject children, specifically attacking her with a sledgehammer and repeatedly hitting her all over her body causing the non-respondent mother to sustain scratches and bruises to her neck, arm and leg; that on June 10, 2024, once the subject children went to sleep, the respondent father entered the non-respondent mother’s bedroom and raped her, after which the respondent father went to bed and the non-respondent mother called 911 to report the physical and sexual assault; that on or about June 13, 2024, the subject child I.D., who is five years old, disclosed that “my mommy was hurt all over her body and daddy left when it was bedtime,” that the respondent father had a flat thing in his hand when he attacked the non-respondent mother and choked her, that the respondent father broke the television with a hammer and that there was a lot of arguing, screaming and yelling; that on or about June 13, 2024, the subject children disclosed that they were fearful of the respondent father and that they would feel more comfortable moving to a new home so “daddy won’t beat up mommy; ” and that on or about June 13, 2024, the subject child L.D., who is six years old, disclosed that she was scared during the June 10, 2024 incident. On June 14, 2024, at intake on the neglect petitions, the Court temporarily released the subject children to the non-respondent mother, assigned her counsel and issued a full stay away temporary order of protection against the respondent father on behalf of the non-respondent mother and the subject children, with no carve out for visitation. At the next court appearance on June 20, 2024, the respondent father appeared, he was assigned counsel and he requested visitation with the subject children. Based on the nature of the allegations in the petitions, opposition to the application from ACS based on the allegations in the petitions and the request made by the attorney for the children that she be given time to speak with the subject children about their position on visitation with the respondent father, the Court denied the visitation application. Thereafter, at a court appearance on July 3, 2024, the respondent father again requested visitation with the subject children. ACS, the non-respondent mother and the attorney for the children vehemently opposed the application. Specifically, the attorney for the children asserted that she had spoken with the two older subject children, I.D. and L.D., who stated that they love their father and do want to see him, but that they are scared to see him, that they expressed concern that the respondent father was going to hurt them like he hurt their mother and that they were still very focused on the alleged brutal attack on their mother by the respondent father with a hammer that they allegedly witnessed. The attorney for the children also requested that ACS make a referral for mental health services for the subject children. The Court denied the respondent father’s visitation application on the ground that there would be an emotional safety risk to the subject children if visitation were to occur. The Court also ordered ACS to make referrals for mental health services for the subject children and stated that it would reassess visitation after hearing from the subject children’s mental health provider as to their emotional well-being as it relates to visitation with their father. The respondent father now moves for an Order that he be granted once a week supervised virtual visitation with the subject children while he is incarcerated. He argues that under the FCA, he is entitled to visitation with the subject children as a respondent parent, that he has not had visitation with the subject children since the neglect case was initiated in June 2024 and that as virtual supervised visitation is the most restrictive type of visitation a respondent can have, such visitation should be ordered. The respondent father’s motion for an Order that he be granted once a week supervised virtual visitation with the subject children while he is incarcerated is denied. Pursuant to FCA 1030(c), “A respondent shall be granted reasonable and regularly scheduled visitation unless the court finds that the child’s life or health would be endangered thereby, but the court may order visitation under the supervision of an employee of a local social services department upon a finding that such supervised visitation is in the best interest of the child.” “[T]he presumption that parental visitation is in the best interests of a child [may be] overcome by…evidence showing that visitation with respondent would not be in [the child's] best interests” (In re Giovanni H.B., 172 AD3d 489 [1st Dept 2019]). The respondent father’s motion is denied as the Court finds that visitation with the respondent father is not in the subject children’s best interest at this time as it would pose a risk to the subject children’s emotional health and well-being. At argument on the motion, the Court received a letter from the subject children’s psychotherapist. Specifically, the subject children’s psychotherapist states in her letter, in pertinent part, as follows: “The main goal of [Child-Parent Psychotherapy] CPP is to support and strengthen the relationships between young children and their caregivers, and to help them heal from stressful and traumatic events. There are three phases of CPP: Foundational, Core Intervention, and Termination. [the non-respondent mother] and her three children are still in the foundational phase, the focus of which is to complete assessments with the family to assess the extent of everyone’s trauma and identify any trauma related symptoms….The family is expected to complete the foundational phase by the end of November 2024. Once this phase is completed, the family will begin the core intervention phase where play therapy will begin. At this time, as I have only completed five sessions with the family, I cannot provide an accurate assessment of the children’s readiness to have visits with their father. I would like to be able to fully assess the children’s trauma by completing all assessments needed and then beginning the core intervention phase of treatment with the family, which includes play therapy. Through play therapy, I would like to explore with the children their relationship with their father, [K.D.]. As well as begin to address the children’s emotions, feelings and thoughts of experiencing and witnessing many violent acts by their father against their mother. I will be able to give a more accurate report on the children’s readiness for visits with their father by the end of December 2024.” In addition, the Court heard testimony from the subject children’s psychotherapist that during her sessions with the family, the subject children have exhibited symptoms of trauma which need to be explored in order to properly evaluate any risk that visitation with the respondent father might pose. The Court also heard from the attorney for the children, who stated that she spoke to the two older subject children again about their position on visiting with the respondent father and that while the subject children express desire to see their father, they also express apprehension and fear about seeing him based on what they allegedly witnessed their father do to their mother and worry about whether the respondent father will hurt them too. The attorney for the children also argued that due to the young ages of the subject children, specifically, six, five and two years old, the Court should wait for further information and assessment from the subject children’s psychotherapist, before granting visitation. ACS also opposed the motion based on the very young ages of the subject children, the allegations in the petition and the subject children’s fear about seeing the respondent father. Based on the foregoing and given the young ages of the subject children and the evidence that their emotional health would be at risk, the Court finds that it is not in the subject children’s best interest to have visitation with the respondent father at this time. As the subject children continue in their mental health treatment with their psychotherapist, the Court will reassess whether the respondent father may be permitted to have visitation with the subject children, based on progress reports from the subject children’s psychotherapist as well as hearing from the attorney for the children. If the respondent wishes to do so, he is permitted to write letters to the subject children, which shall be reviewed by ACS prior to being given, or read, to the subject children, until such time as agency supervised visitation begins. The matter is adjourned until November 19, 2024 at 11:00 AM for a conference before the Court at which time the respondent father may renew his application for visitation with the subject children. This constitutes the decision and order of the Court. Dated: October 24, 2024
