| Matter of Stellone v Kelly |
| 2007 NY Slip Op 09460 [45 AD3d 1202] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Jacqueline L. Stellone, Respondent, v Heidi M.Kelly, Appellant. (And Three Other Related Proceedings.) |
—[*1] Assaf & Mackenzie, Troy (Melody A. Mackenzie of counsel), for respondent. William V. O'Leary, Law Guardian, Albany.
Kane, J. Appeals (1) from an order of the Family Court of Albany County (Maney, J.),entered June 7, 2006, which, among other things, dismissed Heidi M. Kelly's application, in twoproceedings pursuant to Family Ct Act article 6, to terminate a prior order of visitation, and (2)from an order of said court, entered January 18, 2007, which, among other things, in twoproceedings pursuant to Family Ct Act article 6, granted Jacqueline L. Stellone's motion todismiss Heidi M. Kelly's petition to terminate a prior order of visitation.
After the parents of the subject child (born in 1994) divorced in 1999, Heidi M. Kelly(hereinafter the mother) obtained sole custody. Jacqueline L. Stellone, the child's paternalgrandmother (hereinafter the grandmother), was granted visitation every other weekend. In 2003,tension rose between the parties, resulting in a July 2004 order granting the grandmothervisitation once per month for two hours and one telephone call per week. By that time, themother's husband had begun adoption proceedings, which were ultimately highly contested,culminating in the child's adoption by her stepfather in 2005. Mainly following her adoption, thechild's attitude toward the grandmother deteriorated to the point where she expressed her desirethat they have no contact. In November 2004, the grandmother filed a violation petition againstthe mother. In January 2005, the mother filed a petition seeking to terminate all visitation with[*2]the grandmother. Following a lengthy hearing, Family Courtissued a June 2006 order which determined that a change in circumstances was demonstratedthrough the child's and mother's deteriorated relationships with the grandmother. The courtcontinued the visitation in the prior order, required the mother to continue the child in counselingwith a therapist of the mother's choosing, ordered family counseling between the child and thegrandmother with a therapist of the grandmother's choosing, and required the mother tocooperate with the family therapy and follow all recommendations.
In October 2006, the mother again filed a petition seeking termination of the grandmother'svisitation and, soon thereafter, the grandmother filed a violation petition. In January 2007,Family Court, among other things, granted the grandmother's motion to dismiss the petitionbecause the mother failed to allege a change in circumstances since the June 2006 order. Themother appeals from the June 2006 and January 2007 orders.
Family Court did not err in considering the testimony of the grandmother's expert witness.The grandmother's disclosure responses included the witness, the basic area of her testimony andthe general basis for that testimony. Based upon the failure to disclose the expert's report, thecourt precluded that document. While opinions and conclusions of a psychologist may bediscounted or rendered valueless if all involved parties are not interviewed or evaluated, here, themother was given an opportunity, but declined, to meet with the psychologist or allow the childto do so (see Matter of De Mel v Aldana, 159 AD2d 349, 349 [1990]; People ex rel.Cramp v Cramp, 117 AD2d 762, 763 [1986]). The expert, who acknowledged the limitationsof her opinions and recommendations due to her inability to meet with the mother or child, reliednot only upon her evaluation of the grandmother, but also a review of voluminous court filingsand transcripts, correspondence between the mother and grandmother, and approximately sevenhours of taped telephone conversations between the grandmother and child (see Crum vCrum, 122 AD2d 771, 771 [1986]). The court had the discretion to admit the expert'stestimony and consider the one-sidedness of the evaluation when determining what weight toaccord that testimony (see People ex rel. Cramp v Cramp, 117 AD2d at 763).
Family Court properly continued the grandmother's visitation, with the addition ofcounseling. Even in a grandparent visitation case, when a prior order has been entered and a partyis seeking to modify it, that party bears the burden of proving a change in circumstancessufficient to warrant a modification of the visitation order (see Matter of Wilson vMcGlinchey, 2 NY3d 375, 380 [2004]). Here, the court found that the deterioration in boththe mother's and child's relationships with the grandmother constituted a change incircumstances. According due deference to the court's credibility determinations and discretion inmatters of visitation, we will not disturb this finding (see Matter of Steinhauser v Haas, 40 AD3d 863, 864 [2007]).
Moving then to a best interests analysis, "neither the presumed wishes of the child nor theexistence of animosity between the parent and the grandparent[] is a proper reason for denial ofvisitation," without more (Matter of Johansen v Lanphear, 95 AD2d 973, 974 [1983]; see Matter of E.S. v P.D., 8 NY3d150, 157 [2007]; Matter of Steinhauser v Haas, 40 AD3d at 865). Foremost in theinquiry is the nature and extent of the existing relationship between the grandparent and child(see Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182 [1991]; Matter of Ziarno vZiarno, 285 AD2d 793, 794 [2001], lv denied 97 NY2d 605 [2001]). Other factors inthe analysis include the basis and reasonableness of the parent's objections, the grandparent'snurturing skills and attitude toward the parent, the law guardian's assessment and the child'swishes (see Matter of E.S. v P.D., 8 NY3d at 160-161). Despite the child's adamantstatements that she no longer wanted any contact with the grandmother, Family Court did notabuse its [*3]discretion in finding that this attitude arose withouta reasonable basis. Of the three minor incidents alleged by the mother as having led to the child'srelationship with the grandmother, two occurred years earlier and did not seem to affect therelationship at the time they occurred. The other incident, while a reason to cause the child someupset, seems to have elicited a persisting reaction that was grossly out of proportion to theincident. The mother's only reason for her objection to visitation was that it was hurting the child,without any real basis for this opinion (see Matter of Kenyon v Kenyon, 251 AD2d 763,764 [1998]; compare Matter of Wilson v McGlinchey, 2 NY3d at 382). The court alsoopined that the mother's admitted dislike and anger toward the grandmother placed the child in abattle of loyalty which caused the rift here, requiring counseling to heal the fractured relationshipand restore the close bond that had existed between the child and grandmother. Thus, the court'scontinuation of the limited visitation and requirement of counseling was supported by the record.
Although continued visitation was proper after the hearing, Family Court should not havedismissed the mother's October 2006 petition without a hearing. The mother, as the party seekingmodification, was required to make a sufficient evidentiary showing of a change in circumstanceswhich could warrant modification of visitation (see Matter of Critzer v Mann, 17 AD3d 735, 736 [2005]). Whilethe mother's petition alleged some of the same problems that had previously been addressed bythe court, sufficient new information was included. Testimony at the prior hearing revealed thatthe child stated that she would rather die than visit with the grandmother, but the motheracknowledged that the child was engaging in hyperbole and would not really harm herself. TheOctober 2006 petition, as well as the supporting affidavits of the mother and child's therapist,included allegations that the child's friend, school administrators and therapist expressed concernthat the child was at a real risk of self-harm due to the stress of forced visitation. Notably, thegrandmother alleges that the family therapist, chosen by her, expressed a need for the child to behospitalized to assess her mental and emotional well-being. Given these serious allegations, thecourt should have addressed the petition on the merits.
Crew III, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the order entered June 7,2006 is affirmed, without costs. Ordered that the order entered January 18, 2007 is modified, onthe law, without costs, by reversing so much thereof as granted Jacqueline L. Stellone's motion todismiss Heidi M. Kelly's petition; motion denied and matter remitted to the Family Court ofAlbany County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.