Commissioner of
Social Services o/b/o Elizabeth S. v. Julio J.
Matter of Matter of Elizabeth S. v Julio J.
2012
NY Slip Op 03082
Decided
on April 24, 2012
Appellate
Division, First Department
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
Official Reports.
Decided
on April 24, 2012
Saxe,
J.P., Friedman, Moskowitz, Freedman, Richter, JJ. In
re Commissioner of Social Services,
5747
[*1]on behalf of Elizabeth S., Petitioner-Respondent,
v
Julio J., Respondent-Appellant.
George E. Reed, Jr.,
Michael
A. Cardozo, Corporation Counsel,
A. Brenner of counsel), for respondent.
Karen
Freedman, Lawyers for Children, Inc.,
(Brenda Soloff of counsel),
attorney for the child.
Order
of filiation, Family Court, New York County (Mary E. Bednar, J.), entered on or about November 8, 2010,
declaring respondent to be the father of the subject child, reversed, on the
law, without costs, and the matter remanded for further proceedings to include
the performance of a biological paternity test.
In
this paternity proceeding under article 5 of the Family Court Act, petitioner
agency failed to establish by evidence that was clear, convincing and entirely
satisfactory (see Matter of Commr. of Social Servs. v Philip De G., 59 NY2d 137, 141-142 [1983]; Matter
of Tanesha H. v Phillip C., 57 AD3d 403 [2008]; Sobie, Practice Commentaries, McKinney's Cons Laws of NY,
Book 29A, Family Court Act § 531, at 105 [2009]) that respondent acted as the
child's father to such an extent as to give rise to equitable estoppel barring him from denying paternity and rendering a
biological paternity test inappropriate (see Family Court Act § 532). There was
no evidence that respondent has played a significant role in raising, nurturing
or caring for the child, much less that he has ever had an operative
parent-child relationship with her (see Matter of Gutierrez v
Gutierrez-Delgado, 33 AD3d 1133, 1135 [2006] [holding that it was error to
apply equitable estoppel where "an established
and significant parent-child relationship" was absent]; cf. Matter of
Juanita A. v Kenneth Mark N., 15 NY3d 1, 5 [2010] [equitable estoppel "protects the status interests of a child in
an already recognized and operative parent-child relationship"] [internal
quotation marks omitted]; Matter of Enrique G. v Lisbet
E., 2 AD3d 288, 289 [2003] [applying equitable estoppel
to avoid "disruption of (the child's) close relationship" with the
putative father]).
While
respondent did not deny that he has maintained an intermittent and essentially
avuncular relationship with the child, petitioner made no showing that
respondent has affirmatively fostered such a strong bond with the child as to estop him from denying paternity. Although respondent
admitted that he visited the mother in the hospital when the child was born,
[*2]he declined to sign an acknowledgment of paternity
at that time. As to his interactions with the child herself, the evidence
shows, at most, that he did not object when the child called him
"Daddy" during their sporadic encounters; that he gave her one- or
five-dollar bills when she asked him for money; that he occasionally gave her
gifts or took her shopping; and that, on at least one occasion, he took her to
a park. Petitioner made no showing that respondent's contacts with the child
occurred with any degree of regularity or were sufficient to render him a
significant presence in her life (cf. Matter of Sarah S. v James T., 299 AD2d
785, 785-786 [2002] [although the "respondent played a limited role"
in the child's life, equitable estoppel was applied
where, inter alia, he "spent meaningful time with the child" and had
weekly telephone calls with him]). During respondent's two years of military
service, it is undisputed that he had no interaction with the child at all,
even by telephone. Moreover, the child did not testify at the hearing, nor did
the court interview her in camera. It is true that the child (who remained
ignorant of the nature of the proceeding) identified respondent as her father
and talked positively about him in an out-of-court interview with her
court-appointed attorney. Nonetheless, her responses to the attorney's leading
questions are consistent with a warm but distant relationship and do not
suffice to demonstrate by clear and convincing evidence that conducting a
biological test would be contrary to her best interests. In sum, on this
record, petitioner has not demonstrated that a finding that respondent is not
her father would cause the child to suffer "irreparable loss of status,
destruction of her family image, or other harm to her physical or emotional
well-being" (Matter of Derrick H. v Martha J., 82 AD3d 1236, 1239 [2011]
[internal quotation marks omitted]) so as to warrant imposition of equitable estoppel under Family Court Act § 532.
All
concur except Moskowitz and Richter, JJ. who dissent in a memorandum by Richter, J. as follows:
RICHTER,
J. (dissenting)
Following
a hearing, the Family Court Judge, who had an opportunity to observe the
witnesses and assess their demeanor, made fact-findings that are consistent
with the mother's testimony. The majority, in
reversing, largely adopts respondent's testimony, which Family Court
discredited to a great extent, and fails to recognize controlling law, which
dictates that the best interests of the child are the exclusive consideration
in determining whether equitable estoppel applies;
therefore, I dissent.
By
the time of the hearing on the paternity proceeding, the child was eight years
old. In March 2002, about two months before the child's birth, the mother
informed respondent that she was pregnant. Respondent, accompanied by his own
mother, came to the hospital when the child was born and visited for
approximately two hours. The mother testified that respondent brought a
stroller and three outfits for the child, and held the child while he was
there.
Shortly
after the child was born, respondent joined the military and was stationed in
Respondent
also gave the child money on various occasions, anywhere from one dollar to ten
dollars, in addition to buying her candy when she asked for it or if she was
hungry. The mother testified that respondent would call her cell phone to get
in touch with the child, to ask how the child was doing, and to speak with her.
The child also had met a few members of respondent's family and had visited his
sister at her house. Indeed, the mother stated, that when the child saw
respondent around the neighborhood, she would openly call him "Daddy"
and he would not attempt to correct her otherwise. Moreover, both the mother
and the Attorney for the Child informed the court that the child had expressed
a desire to spend as much time as possible with respondent.
In
addition to allowing and even encouraging the child to call him
"Dad," respondent also showered her with gifts. Shortly before the
paternity proceedings began, he took the child on a "shopping spree"
at a local store, buying her summer clothes, pants, shirts, underwear, and a bookbag. Respondent also gave the child birthday presents,
including clothes and an educational game. Further, respondent and his current
girlfriend gave the child a coat and boots as an Easter present, and
respondent's girlfriend bought the child gifts on another occasion as well.
At
the hearing, respondent explained that he had given these gifts to the child as
a "friendly gesture," and that he had treated other needy children in
a similar fashion. Family Court found respondent's explanation to be
unpersuasive, and noted that many of the contacts respondent had made with the
child appeared to be fatherly. Family Court also rejected respondent's
testimony that he had let the child call him "Daddy" because he had
not wanted to correct her and confuse her, or respond to her in a
"negative reaction."
After
hearing from the mother, respondent, and the Attorney for the Child, the court
determined that it would be to the child's detriment to direct a DNA test. The
court found that the child knew respondent as her father and that she had
expressed to both her attorney and her mother a desire to spend more time with
him. Furthermore, the court noted that respondent had done nothing to dissuade
the child of this view, and in fact, had encouraged the development of a
parent-child relationship in the child's eyes. The court had an opportunity to
view the witnesses and make credibility determinations, and its findings should
be accorded great deference on appeal (Matter of Celenia
M. v Faustino M., 77 AD3d 486 [2010], lv denied 16
NY3d 702 [2011]).
The
seminal case involving paternity and equitable estoppel
is Matter of Shondel J. v Mark D. (7 NY3d 320
[2006]). The
Here,
despite the majority's attempt to minimize the contact between respondent and
the child, the Family Court properly determined that respondent held himself
out as the child's father and that the child justifiably relied on this
representation to her detriment (id. at 327). The mother testified that
respondent was the only man she had ever introduced into the child's life as
the father and the only man the child called "Daddy." Respondent
confirmed that the child did indeed call him "Daddy" and that he had
made no effort to disavow her of that notion. He even acknowledged that when
the child saw him in the courthouse for one of the proceedings, she ran towards
him and hugged him.
The
majority describes respondent's role in the child's life as intermittent and
sporadic, and therefore determines that respondent did not affirmatively foster
a strong bond with the child. However, during the child's entire life,
respondent has led her to believe he is her father. Indeed, respondent
testified that he had seen the child five times in 2010 alone, which was the
same amount as during all the previous years combined. Respondent had increased
the amount of time he was spending with her and had bought her gifts, thereby
solidifying his bond with her.
Even
if "the relationship between respondent and the child was somewhat
limited, the Family Court properly concluded that the best interests of the
child required that respondent be estopped from
denying paternity" (Matter of Commissioner of Social Servs.
v Victor C., 91 AD3d 417, 418 [2012]). The Attorney for the Child, after
interviewing the child, reported to the court that she had expressed a desire
to spend more time with her dad. The child even told her attorney that when she
was born respondent had visited her and her mother in the hospital and that he
had held her, a fact that was important to the child. The child has developed a
bond with respondent, one that he has encouraged and actively developed in the
past year. She knows him as her dad, and desires to spend "24 hours a day
with him" according to the mother. At the time of the hearing the child
was eight years old. To now, at this stage in her life, order a DNA test and
let her know that respondent questions his bond with her would be detrimental
to her and would cause her to suffer irreparable loss of status (compare Matter
of Derrick H. v Martha J., 82 AD3d 1236, 1239 [2011]).[FN1]
In
the eight years since the child's birth, respondent has not sought a paternity
test, despite his claims that he raised the issue with the mother on various
occasions. Respondent had a choice to make; he could "either put the
doubts aside and initiate a parental relationship with the child, or insist on
a scientific test of paternity before initiating a parental relationship"
(Shondel, 7 NY3d at 331). Respondent here chose the
former and should not now be able to insist on a paternity test.
The
cases cited by the majority do not mandate a reversal of Family Court. In
Matter of Gutierrez v Gutierrez-Delgado (33 AD3d 1133 [2006]) it was undisputed
that there was a lack of an established parent-child relationship, and the
mother had told the respondent he was not the father of either child. Such is
not the case here, where the mother testified that respondent is the [*5]only
man the child has ever known as her dad, that she has developed a bond with him
and wishes to spend even more time with him. Further, respondent here engaged
in contacts that were fatherly in nature - namely, purchasing the child
clothes, underwear, a bookbag, coat, and boots. These
are items that a parent, and not a stranger or acquaintance, typically buys for
his or her child.
Matter
of Derrick H. v Martha J. (82 AD3d 1236 [2011], supra), also is
distinguishable. In that case, the hearing evidence established that no
parent-child relationship existed between the alleged father and the
three-year-old child, because the two had only limited contact during the first
18 months of the child's life and virtually no contact thereafter; thus, there
was no evidence that the child "would suffer irreparable loss of status .
. . if [the paternity proceeding] were permitted to go forward" (id. at
1239 [internal quotation marks omitted]). By contrast, here, respondent has had
contact with the child since birth, with a temporary hiatus for two years while
he was in the military, and significantly increased his time with her during
2010. She calls him, and only him, "Daddy" and she has continually
expressed a desire to spend as much time with him as possible. Accordingly,
petitioner agency established that it was in the best interests of the child
that respondent be estopped from denying his
paternity and Family Court's ruling should be affirmed.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
APRIL 24, 2012
CLERK
Footnotes
Footnote
1:The majority, in pointing out that the child did not
testify at the hearing and that the court did not conduct an in camera
interview, fails to recognize that had the child been subjected to either she
would have realized that respondent was contesting his parental relationship.
This would have defeated the purpose of the equitable estoppel
hearing.