Opinion
P-10096-17
01-18-2018
In the Matter of a Paternity Proceeding C.H., Petitioner v. S.F. and T.L., Respondents.
C.H., pro se WALLACE WIENS, ESQ., Attorney for S.F. T.L., pro se NANCY J. BIZUB, ESQ., Attorney for the Child, E.F. III
C.H., pro se
WALLACE WIENS, ESQ., Attorney for S.F.
T.L., pro se
NANCY J. BIZUB, ESQ., Attorney for the Child, E.F. III
Brenda M. Freedman, J.
Petitioner, C. H. ["Mr. H."] filed a Paternity Petition on July 5, 2017 against the Respondents, S.F. ["Ms. S.F."] and T.L. ["Mother"] with regards to the child, E.F. III, born July, 2012 ["E."]. The Attorney for the Child Moved to Dismiss Mr. H.'s Petition by Motion dated August 30, 2017 ("Motion No. 1"). Ms. S.F. joined in that Motion; Petitioner and Respondent Mother opposed. The Motion was argued on October 25, 2017 and was granted to the extent that a Hearing was scheduled to determine the issue of Equitable Estoppel. The Hearing was held on December 18, 2017 and the following witnesses testified: Mr. H., Petitioner; Ms. S.F., Respondent; D. T., Maternal Grandmother; and T. L., Respondent-Mother. Oral Summations were also heard on that date. An In camera was not requested by any party and was not held.
Now, upon all the pleadings and proceedings held herein and upon the Court's unique opportunity to observe and evaluate the demeanor, credibility, temperament and sincerity of each witness, to review the pertinent statutes and case law and apply it to the evidence adduced at the Hearing, I render the following Findings of Fact and Conclusions of Law, Decision and Order:
Mother met Mr. E. F. ["Mr. F."] in 2009 and maintained a relationship with him until his death in 2015. Mr. F. lived in Buffalo, New York. Until 2011, so did Mother. In 2011, Mother followed her mother, Maternal Grandmother to Georgia and lived with her there for several months. Mother met Mr. H. in Georgia in 2011 and commenced an intimate relationship with him. During her sojourn in Georgia however, Mother flew back and forth to Buffalo, New York and continued her sexual relationship with Mr. F. It was during this time that Mother became pregnant with E. Mother testified that she does not know whether Mr. H. or Mr. F. is the biological father of E. as she had relations with both during the possible period of conception.
When Mother was approximately 6 months pregnant, she moved back to Buffalo permanently. Since then, Mother has held Mr. F. out as E.'s father.
E. developed a father-son bond with Mr. F. and a familial relationship with Mr. F.'s extended family. Mr. F. was present in the hospital after E.'s birth. On the day after his birth, E.'s half-siblings, Mr. F.'s children Ms. S.F. and D. L. came to the hospital to meet E. Since E.'s birth, Mr. F. had regular and frequent Access with E. E. played with Mr. F. and celebrated holidays with him and his extended family. E. and Mr. F. were appropriately affectionate with each other. Even when Mr. F. became quite ill, he continued to spend time with E. until his death in April, 2015.
Upon Mr. F.'s Paternity Petition, and upon consent of Mother, Mr. F. was declared the father of E. by Order of Filiation dated April 11, 2013.
E. came to reside with his half-sister, Ms. S.F. in July, 2014 and he has continually resided with her since then. Initially, E. was placed with Ms. S.F. under FCA § 1017 during a Neglect proceeding against Mother, Mr. F. and Maternal Grandmother. Mr. F. was ill at the time and was hospitalized for portions of the proceedings. Ms. S.F. later filed a petition for Custody of E. Upon the default of Mother and with the consent of Mr. F., Ms. S.F. was granted FCA Art 6 Custody of E. on May 28, 2015. The Order provided for her to have Sole Custody upon a finding of extraordinary circumstances and directed there be no Access to Mother until/unless she filed a petition seeking it. By Order dated June 27, 2016, that Order was modified to provide Mother with agency supervised access. This is the last Order regarding Custody or Access with E. Maternal Grandmother has filed Custody Petitions that are currently pending, but were tolled awaiting the outcome of the within Paternity matter.
E. still talks about his father, Mr. F., to this day. To Ms. S.F.'s baby, he has recently said things including "I wish you knew my daddy" and "I love my daddy", referring to Mr. F.
Prior to his death, Mr. F. helped Ms. S.F. with finances, contributing to the care of E. During his life, E. also received Social Security derivative benefits of approximately $600 monthly; after his death, the amount increased to $738 monthly.
E. has established relationships with Mr. F.'s extended family. He lives with his half-sister, Ms. S.F., who has custody of him, and Ms. S.F.'s baby, E.'s niece. In the lower flat of his residence lives another half-sister, D. L., who is also Mr. F.'s daughter. His half-brother, Mr. F.'s son, K. D. takes him to football games. He sees a third half-sister, also Mr. F.'s daughter, D. A. and her five children often. He celebrates holidays and special occasions with all of these family members plus Mr. F.'s sister, his aunt.
Ms. S.F. has taken good care of E. When he came to live with her at age 2, E. said only three words, was under-weight and under-height. In the first few months under her care, E. gained weight and grew taller. Ms. S.F. pursued diagnoses when she noticed developmental delays. E. has been diagnosed with Emotional Disturbances and ADHD. Ms. S.F. got E. into the Early Intervention Program where he received speech and occupational therapies and special education instruction. When he aged out of that program, Ms. S.F. arranged for E. to attend the Monarch School at Baker Victory Services where he continued to receive services. Ms. S.F. has ensured that E. regularly sees a pediatrician and a dentist. After obtaining custody, Ms. S.F. linked E. with services including Say Yes, emotional therapy, speech therapy, and counseling. E. attends Buffalo Public School No. 82 in a 10-1-1 special education class.
During her pregnancy, Mother informed Mr. H. that he might be the father. Mr. H. did not attend any prenatal appointments. Until the current Petition, Mr. H. did not file any Petitions to establish paternity in New York, Georgia or any other state. Mr. H. has never met E., communicated with him or sent him presents. Until the Trial herein, Mr. H. had never been to Buffalo, New York where E. has lived his entire life. Mother never took E. to Georgia to meet Mr. H. There was no proof of any efforts made by Mr. H. to meet E. or establish a relationship with him.
Mr. H. called Mother occasionally from 2012 through 2016, and in those conversations, often inquired about E.'s welfare. Mr. H. was under the impression from those conversations that E. was living with her, though that was untrue. Mother deliberately misled Mr. H. into believing E. was living with her. Upon Mother' request, Mr. H. sometimes sent money to her during those years for the support of E., not knowing that E. was not in her care.
Mr. H. never reached out to Ms. S.F. Mr. H. did not know that E. was in her care. Until the current Petition, Ms. S.F. had never heard of Mr. H. and did not know he was a potential biological father.
Maternal Grandmother testified that when Mother was pregnant and moved back to Buffalo, New York, Mother told her that she would allow Mr. F. to claim the child because then the child would be entitled to Social Security derivative benefits.
There have been numerous Court proceedings involving E. over the years wherein Mr. F. was identified as E.'s father. Neither Mother nor Maternal Grandmother ever mentioned that Mr. F. was not or may not be E.'s father.
Mr. H. testified that if DNA testing were conducted and he was determined to be E.'s father, he would assume responsibility for him.
Mr. H. seeks a genetic marker test. Mother supports that position. Ms. S.F. and the Attorney for the Child oppose such testing and move to Dismiss the Petition on the basis of Equitable Estoppel.
An In camera was not requested and was determined unnecessary under the circumstances herein, particularly as no party is disputing E.'s relationship with Mr. F. or his never having met Mr. H.
The question the Court must determine is whether it is in the best interests of E. to order genetic marker tests or whether Mr. H. should be precluded from pursuing any potential change to paternal status.
When paternity is contested, Family Court Act § 418 and § 532 provide the court with authority to order the mother, the child and the alleged father to submit to one or more genetic marker (DNA) tests. No such test shall be ordered however upon a written finding by the court that it is not in the best interests of the child on the basis of equitable estoppel.
The purpose of equitable estoppel is to preclude a person from asserting a right when he or she has led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. Where a child justifiably relies on the representations that a specific man is his father with the result that he will be harmed by the man's denial of paternity, equitable estoppel may be invoked. Shondel J. v. Mark D. , 7 NY3d 320 (2006). Equitable estoppel may be invoked either offensively or defensively, to prevent someone from denying paternity or from establishing it. Juanita A. v. Kenneth Mark N. , 15 NY3d 1 (2010). The courts impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship. Shondel J v. Mark D, supra . In applying the doctrine of equitable estoppel, the child's best interests are paramount. Jonathan C. v. Iaishia QT , 131 AD3d 1054 (2d Dept., 2015).
Although Mr. H. and Mother both wish to have the genetic marker tests done, the Attorney for the Child opposes and asserts the claim of equitable estoppel. Ms. S.F. joins in that claim. Estoppel may be applied even when all the adult parties oppose such application if it is in the child's best interest to do so. Jennifer W. v. Steven X. , 268 AD2d 800 (3d Dept., 2000).
The doctrine of equitable estoppel requires the court to first look to the elements of representation, reliance, and detriment. The party raising equitable estoppel issues has the initial burden to establish a prima facie case sufficient to support that claim. Once these are shown, the burden then shifts to the opposing party to demonstrate why estoppel should not be applied, that it is in the best interests of the child to order the genetic testing. Sharon GG. v. Duane HH. , 63 NY2d 859 (1984) ; Debra H. v. Janice R. , 14 NY3d 576 (2010) ; Edward WW. v. Diana XX, 79 AD3d 1181 (3d Dept., 2010).
Here, Mother held Mr. F. out as E.'s father throughout his life and Mr. F. is the only father figure E. has ever known. Mr. F. was present in the hospital at E.'s birth, had maintained a close relationship with E., and exercised Access frequently until his death. Mr. F. provided financial support for E. both in cash as well as through his Social Security benefits. This is not a situation where the established father failed to carry out the traditional responsibilities of a parent; see, e.g. , Starla D. v. Jeremy E. , 95 AD3d 1605 (3d Dept., 2012) ; rather, Mr. F. acted as a father in every way.
Mr. F. and Mother consistently represented to E. that Mr. F. was his father and E. relied upon that representation in the development of his relationship with Mr. F. such that it would be to his detriment to now jeopardize and potentially lose that relationship by ordering DNA testing. See , Bruce WL v. Carol AP , 46 AD3d 1471 (4th Dept., 2007) ; Commr. of Social Services ex rel Elizabeth S. v. Julio J. , 20 NY3d 995 (2013). Although Mr. F. is deceased, E.'s relationship with him continues, as anyone who has lost a parent realizes.
For over three years, E. has lived with Mr. F.'s daughter, Ms. S.F. who has taken good care of him despite E.'s special needs, his father's death and his Mother's inability to meet his needs. E. has solid relationships with his paternal extended family including several half-siblings, nieces and nephews. If Mr. F. were determined not to be E.'s biological father, E.'s relationship with his entire paternal extended family would be severed, most particularly, with his caretaker Ms. S.F.
Mr. H. was alerted by Mother during her pregnancy that E. might be his son. However, Mr. H. took no steps to establish his paternity for the ensuing five years until the instant Petition. Nor did Mr. H. do anything to establish a relationship with E. Although he sent some money to Mother purportedly for child support, these were not provided on a regular basis, nor did Mr. H. send presents or cards for birthdays, Christmas, etc. He filed no prior petitions and made no efforts to meet E. Where a potential bio-father fails to form a bond with the child, delays taking steps to establish his paternity while another person has fulfilled the father role for the child, he may be estopped from asserting his claim. See e.g. , Darnell JP v. Lianna YD. , 150 AD3d 406 (1st Dept., 2017) ; Thomas T. v. Luba R. , 148 AD3d 912 (2d Dept., 2017).
The Attorney for the Child has met her initial burden and the burden therefore shifts to the Petitioner.
The Petitioner and Mother argue that estoppel should not be applied because it is not in E.'s best interests. They argue that E. should know who his biological father is, and that, should it be Mr. H., he would still have an actively engaged father figure.
The court must weigh the child's right to know her biological father against any psychological harm or trauma caused by a disruption of the already established relationship. Purificati v. Paricos , 154 AD2d 360 (2d Dept., 1989). While there may be no bar to genetic testing when there is an absence of a parent-child bond, see e.g. , Patrick A. v. Rochelle B. , 135 AD3d 1025 (3d Dept., 2016), where it would be detrimental to the child's interests to disrupt the child's close relationship with an established father figure, equitable estoppel should be applied, Juanita A. v. Kenneth Mark N, supra . Here, a strong and permanent father-son bond has formed between E. and Mr. F., a bond which clearly rises to the level of a "recognized and operative parent-child relationship". See e.g. , DSS ex rel Tianna R. v. Timothy C. , 114 AD3d 860 (2d Dept., 2014). E. is not an infant. At five, he has a certain knowledge of who his family is. Genetic testing may result in a re-designation of all his familial relationships including his father, siblings, nieces and nephews. Perhaps most significantly, E. would suffer the loss of his sister and custodian, Ms. S.F. Confusion and emotional hurt would follow. Although the truth is important, the child also has a powerful interest in maintaining his relationship with the man whom he has always known as his father. Jennifer L v. Gerald S. , 145 AD3d 1581 (4th Dept., 2016) ; Westchester Co. DSS ex rel. Pauline MB v. Arnoldo B. , 130 AD3d 743 (2d Dept., 2015).
As the Court of Appeals aptly stated in Shondel J. v. Mark D., supra , "situations vary, and the question of whether extinguishing the relationship and its attendant obligations will disserve the child is one for Family Court based on the facts in each case." Here, we have Mr. F., who assumed parental responsibility for E. from birth, supported him financially and emotionally, developed and maintained a close bond with him and has been his exclusively recognized father; Mr. H. who, although he was alerted about his potential paternity during pregnancy, failed to file a paternity petition in the intervening five years and has had absolutely no relationship with E. or made any efforts to establish one; Mother who consistently represented to E. that Mr. F. was his father; and Ms. S.F., E.'s long-standing and apt custodian whose own relationship with E. flows from Mr. F.'s paternity. E. has justifiably relied upon his parents' representations that Mr. F. is his father, potentially to his detriment. Mr. H. and Mother have not met their burden to prove that genetic marker testing would be in E.'s best interests. There was no proof that continuation of E.'s relationship with Mr. F. as his father would be detrimental to him or that the paternal relationship had been demolished; see, e.g. , Bruce WL v. Carol AP, supra ; and much proof that discontinuation of the relationship would cause him harm. The court need not consider the equities between the adult parties or other involved persons as the case turns exclusively on the best interests of the child; Tanesha H. v. Philip C. , 57 AD3d 403 (1st Dept., 2008) ; and it is the child's interests that are paramount. Sarah S. v. James T. , 299 AD2d 785 (3d Dept., 2002). It is clearly not in E.'s best interests to have genetic marker testing. Mr. H. and Mother are therefore estopped from obtaining such testing.
NOW, THEREFORE , it is hereby
ORDERED, that both Paternity Petitions before this Court are hereby dismissed with prejudice.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.