Matter of Stellone v. Kelly

• Citation: 2007 NY Slip Op 09460,45 A.D.3d 1202,846 N.Y.S.2d 723
• Decision Date: 29 November 2007
• Docket Number: 501289.
• Parties: In the Matter of JACQUELINE L. STELLONE, Respondent, v. HEIDI M. KELLY, Appellant. (And Three Other Related Proceedings.)
• Court: New York Supreme Court Appellate Division

45 A.D.3d 1202

846 N.Y.S.2d 723

2007 NY Slip Op 09460

In the Matter of JACQUELINE L. STELLONE, Respondent, v. HEIDI M. KELLY, Appellant. (And Three Other Related Proceedings.)

501289.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided November 29, 2007.

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 two proceedings 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 two proceedings pursuant to Family Ct Act article 6, granted Jacqueline L. Stellone's motion to dismiss Heidi M. Kelly's petition to terminate a prior order of visitation.

Kane, J.

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 paternal grandmother (hereinafter the grandmother), was granted visitation every other weekend. In 2003, tension rose between the parties, resulting in a July 2004 order granting the grandmother visitation once per month for two hours and one telephone call per week. By that time, the mother'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, the child's attitude toward the grandmother deteriorated to the point where she expressed her desire that they have no contact. In November 2004, the grandmother filed a violation petition against the mother. In January 2005, the mother filed a petition seeking to terminate all visitation with the grandmother. Following a lengthy hearing, Family Court issued a June 2006 order which determined that a change in circumstances was demonstrated through the child's and mother's deteriorated relationships with the grandmother. The court continued the visitation in the prior order, required the mother to continue the child in counseling with a therapist of the mother's choosing, ordered family counseling between the child and the grandmother with a therapist of the grandmother's choosing, and required the mother to cooperate with the family therapy and follow all recommendations.

In October 2006, the mother again filed a petition seeking termination of the grandmother's visitation 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 petition because the mother failed to allege a change in circumstances since the June 2006 order. The mother 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 and the general basis for that testimony. Based upon the failure to disclose the expert's report, the court precluded that document. While opinions and conclusions of a psychologist may be discounted or rendered valueless if all involved parties are not interviewed or evaluated, here, the mother was given an opportunity, but declined, to meet with the psychologist or allow the child to 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 limitations of her opinions and recommendations due to her inability to meet with the mother or child, relied not only upon her evaluation of the grandmother, but also a review of voluminous court filings and transcripts, correspondence between the mother and grandmother, and approximately seven hours of taped telephone conversations between the grandmother and child (see Crum v Crum, 122 AD2d 771, 771 [1986]). The court had the discretion to admit the expert's testimony and consider the one-sidedness of the evaluation when determining what weight to accord that testimony (see People ex rel. Cramp v Cramp, 117 AD2d at 763).

Family Court properly continued the grandmother's visitation, with the addition of counseling. Even in a grandparent visitation case, when a prior order has been entered and a party is seeking to modify it, that party bears the burden of proving a change in circumstances sufficient to warrant a modification of the visitation order (see Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004]). Here, the court found that the deterioration in both the mother's and child's relationships with the grandmother constituted a change in circumstances. According due deference to the court's credibility determinations and discretion in matters 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...