The assumption is that the father was asking for the court to pay for this expert assessment and further ask that it be dispositive.
MATTER OF ZV, 2025 NY Slip Op 50100 – NY Co. Family Court 2025:
YAEL WILKOFSKY, J.
“On or about May 31, 2024, the petitioner Administration for
Children’s Services (“ACS”) filed a Family Court Act (“FCA”) Article 10
neglect petition on behalf of the subject child Z.V. (the “subject
child”) against the respondent J.V. (the “respondent father”). The
respondent father now moves for an Order directing that a visitation
assessment be conducted by S.N., LMSW, to assess what, if any, parental
visitation or conduct is recommended between the respondent father and
the subject child. For the reasons set forth below, the respondent
father’s motion is denied.
The petition alleges that the respondent father fails to provide the
subject child with proper supervision and guardianship based on
allegations of excessive corporal punishment. Specifically, the
allegations in the petition are as follows. On or about May 22, 2024,
the respondent father burst into the bathroom of their apartment and
told the subject child, who was 12 years old at the time, to “square
up.” The respondent father then took the subject child’s laptop and
antagonized her to take the laptop back from him. When the subject child
attempted to retrieve her laptop from the respondent father, he placed
her into a chokehold with his arm around her neck. The subject child
then went into the kitchen and the respondent father followed her, at
which point the respondent father again placed her in a chokehold and
wrestled her to the living room floor. The subject child reported that
during the incident, she felt strangled and like she was about to die as
she was struggling to breathe and could not feel oxygen. After the
respondent father released the subject child from the chokehold, the
subject child ran out of the apartment, went to her former school to
report the incident, and refused to return to the respondent father’s
home. On or about May 23, 2024, a forensic interview was conducted at
the Manhattan Child Advocacy Center (“CAC”) during which the subject
child disclosed that the respondent father had wrestled her to the floor
prior to the May 22, 2024 incident and that he does so whenever she
behaves badly in school or is disrespectful. At the CAC interview, the
subject child was observed to have a quarter-sized brown bruise in the
center of her right cheek, two-inch long red scratch marks on her right
forearm and a red mark on her left forearm, which, the subject child
reported, were caused by the respondent father during the May 22, 2024
incident. Thereafter, the subject child was brought to the hospital,
received medical attention and was subsequently discharged.
On May 31, 2024, at intake on the neglect petition, the Court removed
the subject child from the respondent father, finding that it would be
contrary to the subject child’s welfare to return home to the respondent
father and that removal was necessary to avoid imminent risk to the
subject child’s life or health. The Court temporarily directly placed
the subject child with her adult half-sister. The Court issued a full
stay away temporary order of protection against the respondent father on
behalf of the subject child except for agency supervised visitation, at
the subject child’s discretion. At a June 10, 2024 court appearance,
the respondent father made an application for resource supervised
visitation and family therapy. The subject child’s counsel opposed the
request on the grounds that there had not yet been any agency-supervised
visits based on the subject child’s steadfast refusal to visit with the
respondent father, that she had not yet spoken to the subject child
about expanding to resource-supervised visits and that based on the
allegations in the petition, the respondent father should be engaged in
his own services prior to beginning family therapy with the subject
child. The Court issued an Order permitting the respondent father to
have resource-supervised phone contact with the subject child, at the
subject child’s discretion, and reiterated that all in-person visitation
was to be agency-supervised and at the subject child’s discretion. At a
court appearance on July 25, 2024, the Court again addressed visitation
between the respondent father and the subject child. The Child
Protective Specialist (“CPS”) assigned to the case informed the Court
that the subject child was reluctant to have in-person visitation with
the respondent father, even if the visits were supervised, and that
although the subject child loves her father, she was not yet ready to
have virtual visits with him either as she was still working through her
feelings about the respondent father’s behavior toward her. At a court
appearance on November 18, 2024, when discussing visitation, counsel for
the subject child informed the Court that in October 2024, the subject
child had a telephone visit with the respondent father that did not go
well, specifically, that during the visit, the respondent father was
crying to the subject child asking the subject child to return home and
blaming the subject child’s sister for things that the subject child
felt were the respondent father’s fault. Counsel for the subject child
further reported that the subject child did not wish to have any visits
with the respondent father, that she wanted to remain in her sister’s
care and that the subject child would like to engage in therapy. Counsel
for the subject child also asserted that perhaps if the respondent
father was engaged in his own therapeutic services, the subject child
would be less reluctant to visit with him. Additionally, counsel for the
subject child requested that the respondent father provide the subject
child with all her personal belongings which had remained in his home
since the case was filed. The Court ordered that the respondent father
give the subject child all her personal belongings and that the
petitioner assist in ensuring that the subject child obtain all her
belongings from the respondent father’s home. The Court also ensured
that the petitioner was making a referral for individual therapy for the
subject child.
The respondent father’s motion for an Order directing that a
visitation assessment be conducted by S.N., LMSW, to assess what, if
any, parental visitation or conduct is recommended between the
respondent father and the subject child, is denied as the Court finds
that it is not in the subject child’s best interests to undergo such an
assessment. Initially, the Court finds that the visitation assessment
that the respondent father seeks is akin to a forensic evaluation
conducted in custody cases and is not appropriate in a neglect case such
as this one. Moreover, even if such a visitation assessment were
appropriate, the Court finds that there is no need for such an
assessment, which would be intrusive and burdensome to the subject
child, as the Court is in the best position, and has all the information
it needs, to make the assessment about what type of visitation between
the respondent father and the subject child is appropriate in this case.
Indeed, throughout this case, based on all the information before it,
the Court has assessed the type of visitation that is in the subject
child’s best interests and permitted the respondent father to have
supervised in-person visitation with the subject child only at the
subject child’s discretion based on such assessment. Pursuant to FCA
1030(a), “[a] respondent shall have the right to reasonable and
regularly scheduled visitation with a child in the temporary custody of a
social services official unless limited by an order of the family
court.” “[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]).
Initially, the Court determined that visitation with the respondent
father only at the subject child’s discretion is in the subject child’s
best interests because the subject child, who is a mature and articulate
13 year-old, has been adamant that she does not want visits with her
father. Indeed, the record reflects that the subject child did try to
visit with her father but that the visit did not go well because the
subject child felt that the respondent father did not take
accountability for his actions.
However, the subject child’s refusal to visit with the respondent
father is not the only factor the Court considered in making such a
determination, although it is certainly an important one. In addition,
the Court based its determination on the respondent father’s failure to
demonstrate a commitment to ensuring that the subject child’s needs are
met and to complying with court orders. The subject child has
reiterated, to the Court and to the respondent father, that prior to
continuing any visitation with the respondent father, she would like to
engage in therapy to work through trauma she has experienced. However,
petitioner has made numerous requests, over a period of approximately
six months, that the respondent father provide his medical insurance
information so that the subject child may be referred for therapeutic
services. However, despite these requests, the respondent father failed
to provide the petitioner with active insurance information and thus,
the subject child has not yet been referred for mental health services.
Indeed, in her affirmation attached to the petitioner’s opposition to
the motion, CPS affirms that although the respondent father has provided
some insurance information, and only after numerous requests were made,
the information provided was inaccurate. Moreover, CPS affirms that she
notified the respondent father that he had provided inaccurate
insurance information and requested additional information, but that as
of January 10, 2025, the respondent father has not been responsive or
forthcoming with the correct insurance information. The Court notes that
at argument on the motion on January 28, 2025, the petitioner informed
the Court that the respondent father had just recently provided new
medical insurance information, but that petitioner had not yet had an
opportunity to check whether the insurance was active and whether the
information was accurate.
Additionally, the Court based its determination on the respondent
father’s refusal to provide the subject child with her personal
belongings, despite the Court’s order that he do so. The subject child
has repeatedly requested that the respondent father give her all her
personal belongings, which have remained in the respondent father’s home
since the petition was filed in May 2024. Indeed, the Court ordered
such relief on the record and ordered that the petitioner assist in
ensuring that the subject child obtains her personal belongings from the
respondent father’s home. However, the respondent father has refused to
give the subject child her personal belongings, allegedly because she
was not agreeing to visitation. Moreover, when the petitioner reached
out to the respondent father to coordinate the transfer of the subject
child’s personal belongings, the respondent father refused or was
unresponsive. The Court notes that at argument on the motion on January
28, 2025, the petitioner informed the Court that the respondent father
finally provided the subject child with her personal belongings, one
week prior to argument on the motion, despite the fact that the subject
child has been requesting those items since at least November 2024, if
not earlier.
The respondent father’s reliance at argument on a recent First Department case, Matter of Michael B. v. Patricia S., 2024 NY Slip Op. 06005 (1st Dept 2024), is misplaced as that case is distinguishable. As an initial matter, Matter of Michael B.
is a custody case and not a neglect case such as this one.
Additionally, in that case, the First Department held that “[a] court
may not delegate its authority to determine visitation to either a
parent or a child” and that “[w]hile a child’s views should be
considered when determining issues of custody or visitation, they should
not be determinative.” Matter of Michael B. v. Patricia S., 2024 NY Slip Op. 06005
at 2. Here, the Court has not delegated its authority to determine
visitation to the subject child and is also declining to delegate its
authority to a third-party social worker, despite the respondent’s
request.As the Court has explained, the Court, and the Court alone, has
assessed what type of visitation is in the subject child’s best
interests at this time and has repeatedly explained to the respondent
father that his behavior during the pendency of the neglect case plays a
role in the Court’s visitation assessment. Indeed, the Court
continuously assesses and re-assesses the type of visitation that is in
the subject child’s best interests based on new information provided to
the Court, and the respondent father has failed to offer a sufficient
basis for this Court to delegate such assessment to a third-party social
worker.
Based on the foregoing, the respondent father’s motion for an Order
directing that a visitation assessment be conducted by S.N., LMSW, to
assess what, if any, parental visitation or conduct is recommended
between the respondent father and the subject child, is denied. This
constitutes the decision and order of the Court.”