Montoya v. Davis

• Decision Date: 30 November 2017
• Docket Number: 525039
• Citation: 156 A.D.3d 132,66 N.Y.S.3d 350
• Parties: In the Matter of Jose MONTOYA, Respondent, v. Lori DAVIS, Appellant. Attorney for the Child, Appellant. (And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 132

66 N.Y.S.3d 350

In the Matter of Jose MONTOYA, Respondent,

v.Lori DAVIS, Appellant.

Attorney for the Child, Appellant.

(And Two Other Related Proceedings.)

525039

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 11, 2017

Decided and Entered: November 30, 2017

Mack & Associates, PLLC, Albany (Barrett D. Mack of counsel), for Lori Davis, appellant.

Alexander W. Bloomstein, Hillsdale, attorney for the child, appellant.

Tully Rinckey PLLC, Albany (Michael L. Boyle of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.

OPINION AND ORDER

Clark, J.

Appeal from an order of the Family Court of Columbia County (Kehn, J.), entered May 12, 2017, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Following the birth of their son in 2006 and continuing through 2009, petitioner (hereinafter the father) and respondent (hereinafter the mother) resided separately in Suffolk County. However, at some point in 2009, apparently upon the parties' consent, the mother relocated with the son to Columbia County, and the father relocated to North Carolina. At that time, by order entered October 5, 2009 upon agreement of the parties, the mother had "custody" of the child and the father had "such visitation as the parties [could] mutually agree."¹ Thereafter, pursuant to a January 2012 order, entered upon the father's default, Family Court (Koweek, J.) ordered that the father's visitation with the child be therapeutically supervised by the child's therapist, with such therapeutic visits to be paid for by the father, and that the October 2009 order "continue only to [the] extent [that it was] not inconsistent." Over the next few years, the father had a total of three therapeutic visits with the child.

In October 2015, the father commenced the first of these proceedings by filing a modification petition seeking unsupervised contact with the child. At a January 2016 appearance on the father's petition, Family Court (Kehn, J.) appointed a forensic evaluator to conduct a neutral forensic custodial evaluation, which the evaluator completed the following month.² In March 2016, the mother filed a family offense petition against the father, alleging that he committed harassment in the first or second degree by incessantly sending her text messages that accused her of interfering with the father's relationship with the child. The following month, in April 2016, the court temporarily awarded the father unsupervised visits with the child and directed the forensic evaluator to prepare an updated report. The mother then moved, by order to show cause, to suspend the father's unsupervised contact with the child. After the forensic evaluator completed her updated report in May 2016, the father filed a second modification petition—which he subsequently amended—seeking joint legal and primary physical custody of the child.

Following a fact-finding hearing and a Lincoln hearing, Family Court, among other things, granted the father sole legal and primary physical custody of the child, suspended the mother's parenting time with the child "for a period of no less than six months" and conditioned the mother's future contact with the child upon her participation in counseling.³ The court also ordered the mother to sign a release in favor of the attorney for the child "so that her compliance with treatment [could] be monitored" and directed that, following court approval, the mother's contact with the child be in a therapeutic environment. Both the mother and the attorney for the child appeal.⁴

The parties do not dispute that there has been a change in circumstances since entry of the prior order of custody and, as such, the primary issue before us is whether the child's best interests were served by Family Court's order (see Matter of Nathanael G. v. Cezniea I., 151 A.D.3d 1226, 1227, 57 N.Y.S.3d 541 [2017] ; Matter of Walter TT. v. Chemung County Dept. of Social Servs., 132 A.D.3d 1170, 1170–1171, 19 N.Y.S.3d 596 [2015] ; Matter of Blagg v. Downey, 132 A.D.3d 1078, 1079, 18 N.Y.S.3d 219 [2015] ). In assessing which custodial arrangement will serve the best interests of the child, courts consider, among other factors, the parents' relative fitness, stability, ability to provide for the child's overall well-being, past performances, home environments and willingness and ability to foster a positive relationship between the child and the other parent (see Matter of Paluba v. Paluba, 152 A.D.3d 887, 888–889, 58 N.Y.S.3d 719 [2017] ; Matter of Emmanuel SS. v. Thera SS., 152 A.D.3d 900, 901–902, 58 N.Y.S.3d 725 [2017], lv denied 30 N.Y.3d 905, 2017 WL 5492775 [Nov. 16, 2017] ). Upon extensive review of the record, we find that a sound and substantial basis does not exist to support Family Court's determination to grant the father sole legal and primary physical custody of the child, suspend the mother's parenting time for a period of no less than six months and direct that, following her participation in counseling and court approval, the mother's contact with the child be in a therapeutic environment.

At the fact-finding hearing, the father primarily relied upon the testimony and updated forensic evaluation report of the court-appointed forensic evaluator to support his request for joint legal and primary physical custody of the child. The forensic evaluator testified, in accordance with her updated report, that the mother had engaged in parental alienation to such a high degree that the only viable resolution was to award the father primary physical custody of the child and to direct that the mother have no contact whatsoever with the child for at least the first six months of the new custodial arrangement.⁵ Notwithstanding the strong position taken by the forensic evaluator, our review of the record leads us to conclude that her opinions and recommendations were afflicted by a pervasive and manifest bias against the mother, which should have alerted Family Court to their questionable reliability.

It is apparent from our review of the testimony that, although paid to conduct a neutral forensic custodial evaluation, the forensic evaluator failed to remain objective, abdicated her role as a neutral evaluator and, ultimately, became an overly zealous advocate for the father. Throughout her testimony, the forensic evaluator consistently denigrated the mother and her husband and offered broad-sweeping characterizations of the parties, which appeared to be mostly informed by the father's version of events and point of view. She was unable to answer simple yes-or-no questions without editorializing and using vitriolic language directed at the mother. In contrast, the forensic evaluator regularly praised and defended the father, painting his failings—including his inconsistent and limited presence in the child's life over a period of at least three years—as being completely at the hands of the mother and through "no fault" of the father. The forensic evaluator portrayed the father as blameless, although such position conflicted with her prior conclusion—reached in her initial report—that the father "own[ed] some of the liability" due to his failure to "follow[ ] through" and "be[ ] consistent with his contact with [the child.]"⁶ Moreover, the forensic evaluator discounted the possibility that the child may have his own feelings, independent of any interfering conduct by the mother and her husband, about the father's inconsistent presence in his life.

Additionally, with little to no explanation, the forensic evaluator's recommendation drastically changed from her February 2016 report to her May 2016 updated report. Although the forensic evaluator concluded in both reports that the mother had engaged in alienating behavior, she did not recommend a change in physical custody in her first report, reasoning that the mother "ha [d] been the longstanding primary care parent and [that the child] ha[d] been subjected to too many parental losses." Rather, the forensic evaluator recommended that the father have visitation with the child for four to five hours on Saturday and Sunday on the third weekend of the month and that the parties separately participate in a parenting course that focused on how to coparent successfully. In stark contrast, in her updated report, the forensic evaluator stated that the "only viable remedy" to address the mother's alienating behavior was a change in physical custody, so that the child could be "deprogrammed and reunify with his loving father." The forensic evaluator did not explain why her recommendation had changed so dramatically or address her prior concerns about removing the child from his longstanding primary caretaker and subjecting him to another parental loss. Nor did the forensic evaluator state how she was able to reach this new recommendation without again meeting with the mother (see Matter of Nikolic v. Ingrassia, 47 A.D.3d 819, 821, 850 N.Y.S.2d 539 [2008] ; see generally Matter of Stellone v. Kelly, 45 A.D.3d 1202, 1204, 846 N.Y.S.2d 723 [2007] ),⁷ who refused to participate in the update—apparently at the advice of counsel.

The impartiality of the forensic evaluator was further called into question by her pattern of discounting the qualifications and opinions of nearly every collateral source that she came into contact with while preparing her reports. For instance, as reflected in the forensic evaluator's initial report, the licensed clinical social worker who conducted the three therapeutic visits between the father and the child stated that she terminated the visits "because of the inconsistency of contact between [the father] and [the child]." During her testimony, the forensic evaluator attempted to explain the father's lack of consistency, stating that there were "many obstacles" that prevented the father from continuing therapeutic visits...