The opinion of the court was delivered by: Catherine DiDomenico, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
By Petitions dated March 14, 2006, June 13, 2006, July 24, 2006, and November 13, 2006 Petitioners, John and Mary Rose Poppe seek an Order finding Respondent, Laura Ruocco in wilful violation of an Order dated December 1, 2005 (Porzio, J.) the "Visitation Order" that granted the Poppe's visitation rights with their grandchildren, N.R (12) and D.R (11). Matter of Poppe v. Ruocco, 37 AD3d 608 (2nd Dept. 2007). Respondent is the adoptive mother of these children. By Cross Petition dated May 30, 2007, Respondent Mother moves to vacate the Visitation Order. She contends that visiting with the Poppes cause the children mental anguish and emotional pain such that compelling them to visit is no longer appropriate. For the reasons set forth below, this Court finds that the nearly three years that have now elapsed since implementation of the Visitation Order evidence that it is no longer in the best interests of these children to compel them to continue to visit with their grandparents against their wishes and the will of their mother. Accordingly, the Poppe's Petitions are dismissed and Ms. Ruocco's Cross-Petition is granted in its entirety.
This case arises out of a tragic and horrific child abuse case. On or about September 18, 2003, the Poppe's son, M.H. and his wife J.M.H., were convicted of murdering the sibling of the subject children through depraved acts of physical abuse. The subject children were present during the acts of violence committed against their deceased sibling and at times, at least one of these children, D.R., was also a target of the abuse. Specifically, both children were home at the time their sister was drowned in the bathtub and indeed, one of these children actually found her deceased sister in that condition. There is no dispute that the subject children have been in therapy for the past several years and continue to manifest a myriad of symptoms as a result of the trauma they endured including self defecating, anxiety, nightmares and poor hygiene. These symptoms are particularly severe in D.R.'s case. Both biological parents are presently serving lengthy prison sentences.
The subject children were remanded by Family Court and placed in Ms. Ruocco's non kinship foster home in November 2001. The remaining siblings were placed in another foster home. The Poppes originally filed for custody of the subject children, but withdrew their Petition. On August 22, 2003, the parental rights of the Poppe's son, M.H., and the biological mother were terminated. On June 10, 2005, Ms. Ruocco adopted these children. Ms. Ruocco was the only adoptive resource for these children. By the time the adoption was finalized, the children had been living with her for more than four years. With permission of the Court, one child's name was changed to N.R.
Approximately one month later, on July 11, 2005, the Poppes moved this Court for visitation with N.R. and D.R. In a written decision dated December 1, 2005, Judge Porzio granted the Poppes visitation over Ms. Ruocco's objection. On March 14, 2006, the Poppes filed their first of several Violation Petitions alleging that Ms. Ruocco has failed to comply with the Visitation Order. On April 27, 2006, this Court issued an Order directing that the visitation schedule established by the Visitation Order be followed by all parties. The Order further directed Petitioners to remove reminders of the biological parents from their homes as this had been identified as a potential cause for the childrens' refusal to visit pursuant to the Visitation Order.
Respondent Mother does not seriously dispute that visitation has not occurred in accordance with the Visitation Order, but argues that her failure to follow the Visitation Order was not wilful. Specifically, Respondent Mother claims that the children, particularly D.R., refuse to visit because it is emotionally painful for them and causes a number of psychological and physiological symptoms to occur after, and in anticipation of, the court ordered visits.
This case proceeded to trial on March 26, 2007, March 27, 2007, March 29, 2007, January 25, 2008, April 4, 2008 and June 2, 2008. Petitioner, Mr. Poppe testified and called Ms. Ms. K., L.S.W. and the court appointed forensic evaluator Dr. L., as witnesses. Petitioners introduced the following documents into evidence: visitation schedule (Petitioners' 1) handwritten note (Petitioners' 2); letter written by Mr. M. (Petitioners' 3); Dr. L.'s curriculum vitae (Petitioners' 3A); Dr. L.'s forensic evaluation (Petitioner's 4); addendum to Dr. L.'s forensic evaluation; June 18, 2006 report by Ms. K. (Petitioner's 6) and October 13, 2005 report by Ms. K. (Petitioner's 7). Respondent Mother testified and called the childrens' therapists T.K., S.L. and Ms. M. Respondent Mother introduced the following documents into evidence: mental health records for N.R. and D.R. (Respondent's A). On joint application of all parties, this Court did not conduct an in camera of the children so as not to further traumatize them.
Mr. Poppe credibly testified as to the specific visits that did not occur with D.R. because she refused to go. He further credibly testified that many of the visits with N.R. either were cancelled or shortened either because of N.R.'s delay in acquiescing to the court ordered visits or because Respondent Mother cancelled the visits outright. He believes Respondent Mother does not support the children visiting with them, and at times does her best to sabotage, either consciously or not, the Poppes' visitation rights under the Visitation Order. He seeks an Order finding Respondent Mother in violation of the Visitation Order and awarding compensatory visits.
Respondent Mother's Testimony.
Respondent Mother admitted that visitation did not occur as required under the Visitation Order, but credibly testified as to the reasons for missed visits. She testified that pursuant to the Visitation Order, the Poppes had six therapeutic visits every other week for forty-five minutes. When therapeutic visits ended, the children were to visit with their grandparents alone every other Friday from 3:30 to 8:00 p.m. During the months of July and August, visits were the second Friday of the month from 3:30 p.m. to 8:00 p.m. and the fourth Saturday of the month from 9:00 a.m. to 9:00 p.m. Based on the reaction she observed from her children, Respondent Mother believed the therapeutic "breaking in" period should have been longer and told this to the Poppes who preferred to follow the Visitation Order as written. Respondent Mother testified that the children were having a very hard time but she tried to facilitate visits by suggesting that they do things together instead of the children being alone with the Poppes.
Respondent Mother credibly testified that the behavior the children exhibited either in anticipation of, or immediately after, the court ordered visits with the Poppes included bed wetting, self defecating, anxiety, sleeplessness, and crying. Neither of the children wanted to attend the visits. When D.R. is anxious about an upcoming visit, she overeats. On one ...