Y.Y.W. v. Z.G., V-02XX-17/19A

CourtNew York Family Court
Writing for the CourtHon. Caroline P. Cohen, JFC
Citation2022 NY Slip Op 50071 (U)
PartiesIn the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act Y.Y.W., Petitioner, v. Z.G., Respondent.
Docket NumberV-02XX-17/19A
Decision Date26 January 2022

2022 NY Slip Op 50071(U)

In the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act Y.Y.W., Petitioner,
v.

Z.G., Respondent.

Docket No. V-02XX-17/19A

Family Court, Kings County

January 26, 2022


Unpublished Opinion

Yusuf Abdul-Wahab Elashmawy, Esq., counsel for Respondent

Cheryl Charles-Duval, Esq., counsel for Petitioner

Vincent Theodore Phillips, Esq., Legal Aid Society, counsel for the subject children

Hon. Caroline P. Cohen, JFC

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....

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