                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   521680
_________________________________

In the Matter of ZAKARIAH SS.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TARA TT.,
                    Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   September 6, 2016

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

                             __________


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

     Max Zacker, Catskill, for respondent.

     John Kosich, Greenville, attorney for the child.

                             __________


McCarthy, J.

      Appeal from an order of the Family Court of Greene County
(Tailleur, J.), entered September 4, 2015, 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.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter (born in
2004). By a June 2013 stipulated order, the parties had joint
legal and physical custody of the child with parenting time on
alternating weeks during the school year and three weeks of the
                              -2-                521680

summer with each parent. In June 2014, after having decided to
relocate to North Carolina, the father filed a petition to modify
an existing custody order, requesting joint legal custody of the
child with primary physical custody awarded to the mother. Two
months later, while the child was on a three-week agreed upon
visit with the father in North Carolina, the mother filed a
petition to modify the existing custody order, requesting
immediate temporary sole legal and physical custody of the child.
Subsequently, in November 2014, the father filed an amended
petition for modification of the existing custody order,
requesting sole legal and physical custody of the child in North
Carolina with visitation to the mother, averring that, based upon
his own experience with the child and pursuant to a forensic
custody evaluation, the mother had alienated the child from the
father and failed to foster any relationship between them.
Following a fact-finding hearing, Family Court found a change in
circumstances based on both the father's proposed move and a
breakdown in the relationship between the child and the father.
In its order, the court, among other things, granted the father's
petition for sole legal and physical custody of the child and
denied the mother's petition for the same. The mother now
appeals.

      The record contains a sound and substantial basis to
support the determination awarding the father sole legal and
physical custody of the child.1 Within our paramount
consideration of the evidence as it reflects on the best
interests of a child, we have recognized that evidence that a
parent's intentional efforts to alienate a child from another
parent is so inimical to a child's interests as to raise a strong
probability that the offending parent is unfit to be a custodial
parent (see Matter of Gerber v Gerber, 133 AD3d 1133, 1137
[2015], lv denied 27 NY3d 902 [2016]). At trial, the parties
presented two irreconcilable pictures of their parenting.
Either, as the mother contended, the father had been and
continued to be severely physically abusive to the child, or, as


    1
        The mother does not challenge Family Court's
determination that there was a change in circumstances warranting
inquiry only into the best interests of the child.
                              -3-                521680

the father contended, the mother had engaged in a systematic and
successful effort to program the child to hate and fear the
father while coaching her to falsely accuse the father of such
abuse.

      In resolving these competing narratives, Family Court
relied heavily on the testimony of a licensed psychologist who
had performed a custody evaluation. That psychologist opined
that the child had been "brainwashed, coached and rehearsed" by
the mother. In support of this conclusion, the psychologist
described a litany of ways in which the child acted in a manner
consistent with a child of that age who had been coached to
accuse an adult of abuse that had not actually occurred.
Examples of this included that the child was unwilling to
acknowledge any positive experiences that she had with the
father, that she arrived at their sessions with a "laundry list"
of accusations against the father, that she used sophisticated
language to describe the alleged abuse and that she could not
offer further detail to describe more "global" statements that
she had previously made about the alleged abuse.

      Moreover, the psychologist found explanations that the
child gave for other claims that she made to be irrational. For
example, when asked to give an example of one of the "very strict
rules" that the child claimed the father had for her, the child
explained that she was not allowed to hit her brothers. When
asked to explain why she believed her father had "pull[ed] her
down the steps" – one of her accusations of abuse – the child
explained that he had taken such action because she had been
"doing a puzzle." On this issue, the psychologist explained,
"obviously [the child's explanation] was an unusual response
because it was a fabricated allegation, so there is no rational
response." Moreover, the psychologist described drastically
different attitudes that the child would exhibit in regard to her
father on different occasions; negative attitudes toward the
father appeared to highly correlate with the actual presence of
the mother or the mother's recent interactions with the child.

      The psychologist's evaluation of the mother gave her
further reasons to discount the allegations of abuse. The mother
was unable to produce any records, such as medical records or
                               -4-                521680

photographs, that would confirm her or the child's allegations of
abuse by the father. Further, the psychologist found incredible
some of the mother's explanations for why no such evidence
existed. For example, the mother asserted that the reason she
did not report the allegedly ongoing and serious abuse of the
child was because of the fact that she did not know of the
existence of a Child Protective Services hotline.2 In addition,
the psychologist noted that she had interviewed collateral
contacts, particularly school employees who worked with the child
and who the child had indicated were aware of the father's abuse.
Those contacts contradicted the child's claim that she had
disclosed any abuse to them, one specifically emphasizing that,
as a mandated reporter, she would have been legally required to
report such a disclosure if it had in fact occurred. Finally,
after evaluating the mother and the child together, the
psychologist opined that their interactions established that the
child was placed in the position of having to care for the
mother's feelings. The psychologist reached a largely opposite
conclusion regarding the father, opining that, although he
exhibited a lack of communication with the mother, he did not
engage in harmful alienating behavior.

      Considering the evidence as a whole and particularly
considering the psychologist's work with all of the parties and
her reasoned explanation of how numerous factors led her to
conclude that there was "no credible evidence of abuse" by the
father but that there was evidence of "coaching, coercion and
brainwashing" of the child by the mother, we find no reason to
depart from Family Court's determination to credit the
psychologist. According appropriate deference to that
credibility determination, we find a sound and substantial basis
in the record to support the conclusion that awarding the father
sole custody of the child in North Carolina was in the child's
best interests (see Matter of Gerber v Gerber, 133 AD3d at
1138-1139; Robert B. v Linda B., 119 AD3d 1006, 1008-1009 [2014],


     2
        The psychologist noted that, in assessing the credibility
of such a claim, she considered reports establishing that the
mother had previously contacted Child Protective Services in
2004.
                              -5-                521680

lv denied 24 NY3d 906 [2014]; Matter of Burola v Meek, 64 AD3d
962, 966 [2009]; Matter of Whitley v Leonard, 5 AD3d 825, 827
[2004]).

      The mother's contention that Family Court improperly acted
as an advocate during the trial is unpreserved for our review, as
she made no objections to the court's actions that she now
complains of, and – contrary to the mother's contention – a
review of the record does not support the conclusion that the
court engaged in such extreme participation as to render
objections unnecessary for the purposes of preservation (see
Matter of Shannon F., 121 AD3d 1595, 1596 [2014], lv denied 24
NY3d 913 [2015]; Matter of Keaghn Y. [Heaven Z.], 84 AD3d 1478,
1479-1480 [2011]; see generally People v Charleston, 56 NY2d 886,
888 [1982]). Likewise, the mother never sought the
disqualification of the aforementioned psychologist at a time
where the court could have assigned a different custody
evaluator,3 and, thus, the contention that she ought to have been
disqualified is also unpreserved for our review (compare Reback v
Reback, 41 AD3d 814, 816 [2007]; Roundpoint v V.N.A., Inc., 207
AD2d 123, 126 [1995]).

      Nonetheless, Family Court erred by delegating the
determination of the mother's visitation to the child's
counselor. A court cannot delegate its authority to determine
visitation to a mental health professional (see Matter of Holland
v Holland, 92 AD3d 1096, 1096 [2012]; Matter of Steven M.
[Stephvon O.], 88 AD3d 1099, 1101 [2011]). Accordingly, we remit
for further proceedings to establish the mother's visitation (see
Matter of Alisia M. [Sean M.], 110 AD3d 1186, 1188 [2013]; Matter
of Holland v Holland, 92 AD3d at 1097).

      Finally, we reject the mother's contention that the
attorney for the child was required to advocate for the child's
stated wishes to be in the custody of the mother. We find ample
evidence in the record that the mother caused severe emotional


    3
        More generally, the mother never sought the
disqualification of the psychologist at any point prior to this
appeal.
                              -6-                  521680

distress to the child by her ongoing attempts to alienate the
child from the father. If the child's professed wishes were
acceded to, that distress was likely to continue and perhaps
worsen. Moreover, the child's purported wishes were likely to
lead to the continuation and amplification of severe and
unwarranted damage to the child's relationship with the father.
In such circumstances, we find no fault in the attorney for the
child's decision to advocate for a position contrary to the
child's wishes, of which Family Court was aware, given that such
wishes were "likely to result in a substantial risk of imminent,
serious harm to [her]" (22 NYCRR 7.2 [d] [3]; see Matter of
Viscuso v Viscuso, 129 AD3d 1679, 1681 [2015]). Each of the
mother's remaining contentions have been considered and have been
found to be without merit.

     Peters, P.J., Lynch, Rose and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as delegated to the child's
counselor the determination as to respondent's visitation with
the child; matter remitted to the Family Court of Greene County
for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
