Opinion
P-10691-19
03-23-2021
Robert C., Petitioner, v. Belissa W., Administration for Children's Services, and The New York Foundling Hospital, Respondents.
June Callwood, Esq. Assigned Counsel for Petitioner Robert C. The Legal Aid Society by Thomas Curtis Attorney for the Child The New York Foundling Hospital by Deana Tietjen Attorney for Foster Care Agency Rosen Steinhagen & Mendel PLLC by Gail Steinhagen Attorney for Stephanie T. and Theo T., pre-adoptive resources
June Callwood, Esq. Assigned Counsel for Petitioner Robert C. The Legal Aid Society by Thomas Curtis Attorney for the Child The New York Foundling Hospital by Deana Tietjen Attorney for Foster Care Agency Rosen Steinhagen & Mendel PLLC by Gail Steinhagen Attorney for Stephanie T. and Theo T., pre-adoptive resources Maria Arias, J.
Before this court is New York Foundling's (hereinafter "the agency") OTSC #1, dated January 21, 2020, seeking dismissal of a paternity petition brought by the putative father, Robert C. (hereinafter "Mr. C."). Mr. C.'s paternity petition, filed August 30, 2019, followed his initial filing of a custody petition on July 2, 2019, which sought custody of E., the subject child herein. This petition was calendared for July 7, 2019, when related dockets in this case were before Court Attorney Referee Susan Doherty. Because he was incarcerated at the time of filing, Mr. C. was assigned counsel in absentia. Referee Doherty issued an Order to Produce Mr. C. to the correctional facility where he was incarcerated, and on August 8, 2019, Mr. C. appeared via video on his custody petition. Because paternity was not yet established, Mr. C.'s custody petition was held in abeyance pending a paternity filing, which Mr. C. properly filed prior to the subsequent court date. At the September 5, 2019 court appearance before Referee Doherty, issue was joined on the paternity petition and all consented to DNA testing, at the request of the Attorney for the Child (hereinafter "AFC"). Prior to the DNA results being received by this Court, the agency brought the instant motion seeking dismissal of the paternity petition, upon application of the doctrine of equitable estoppel and a finding that such dismissal would serve E.'s best interests.
The agency argues that Mr. C. should be estopped from asserting his claim to paternity, in the interests of fairness, to prevent unjust harm to the child. The agency relies heavily on the argument that Mr. C.'s failure to come forth as the child's father is the controlling factor in an assessment of Mr. C.'s rights as a potential parent to proceed, and that, given this delay, the best interests of E. require preventing Mr. C. from moving forward in his paternity action. This Court notes that the agency does not plead facts specific to any of the requisite elements of estoppel.
Conduct, reliance, and harm. See, e.g. Shondel J. v Mark D., 7 NY3d 320 (2006)
Counsel for the foster parents (hereinafter "the foster parents" or "T's"), who filed an affirmation in support of the agency's OTSC, argue that Mr. C.'s conduct (or lack thereof) caused E. and the foster parents to rely on an alleged non-assertion of parentage to their detriment; that they developed a parent-child bond accordingly; and that such reliance, if uprooted, would cause detriment to E. The foster parents also join the agency's argument that Mr. C. forfeited his right to seek a paternity finding by his alleged delay, and that the best interests of the child compel an estoppel finding to preserve E.'s relationship with Mr. T. The Attorney for the Child adopted the foster parents' arguments in entirety in his affirmation of support.
Mr. C. opposed this motion. In sum, Mr. C. argues that his delay of filing was not the result of inaction but the result of incarceration and his inability to learn the name of the foster care agency where E. was placed; Mr. C. also alleges that he received no support from the correctional facility in locating E. or the foster care agency, nor did the foster care agency make efforts to reach him. Mr. C. asserts that E.'s best interests would be served by knowing his biological father and having a nurturing relationship with him.
The agency's motion seeking dismissal of Mr. C.'s petition for paternity is denied. The agency's failure to argue the elements of estoppel notwithstanding, in this court's view, the doctrine of equitable estoppel is inapplicable to the case at bar, wherein such analysis presupposes Mr. C. and the foster parents stand on equal footing before this Court. To the extent that the agency asks this Court to dismiss the instant petition based on the child's best interests alone, this Court declines to do so.
"Because of the statutory emphasis on the biological family as best serving a child's long-range needs, the legal rights of foster parents are necessarily limited (see, Smith v. Organization of Foster Families, 431 U.S. 816, 846, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14). Legal custody of a child in foster care remains with the agency that places the child, not with the foster parents (Social Services Law § 383[2]). Foster parents enter into this arrangement with the express understanding that the placement is temporary, and that the agency retains the right to remove the child upon notice at any time (People ex rel. Ninesling v. Nassau County Dept. of Social Servs., 46 NY2d 382, 387, 413 N.Y.S.2d 626, 386 N.E.2d 235, rearg. denied, 46 NY2d 836, 414 N.Y.S.2d 1055, 386 N.E.2d 1105). As made clear in Matter of Spence—Chapin Adoption Serv. v. Polk, 29 NY2d 196, 324 N.Y.S.2d 937, 274 N.E.2d 431, "foster care custodians must *310 deliver on demand not 16 out of 17 times, but every time, or the usefulness of foster care assignments is destroyed. To the ordinary fears in placing a child in foster care should not be added the concern that the better the foster care custodians the greater the risk that they will assert, out of love and affection grown too deep, an inchoate right to adopt." (Id., at 205, 324 N.Y.S.2d 937, 274 N.E.2d 431.) Foster parents, moreover, have an affirmative obligation—similar to the obligation of the State—to attempt to solidify the relationship between biological parent and child. While foster parents may be heard on custody issues (see, Social Services Law § 383[3] ), they have no standing to seek permanent custody absent termination of parental rights (see, Matter of Rivers v. Womack, 178 AD2d 532, 577 N.Y.S.2d 322)." Matter of Michael B., 80 NY2d 299, 309—10, 604 N.E.2d 122, 128 (1992)
Although the foster parents argue that they developed a strong parental bond with E. due to Mr. C.'s alleged failure to come forward as the child's father, no specific facts are pled to distinguish the T's relationship to E. as parental versus the similar caretaking required in a foster relationship. There is no dispute in fact that when the T's began to care for E., the child had a legal mother. That fact did not presumably undermine their relationship with E. It defies logic that the existence of a legal father would somehow differently affect their relationship. Furthermore, because E.'s goal was changed to adoption only two weeks before the initial appearance was scheduled for Mr. C.'s custody petition filing of the instant paternity petition, the record does not compel this Court to draw such a distinction of its own accord. Although the foster parents cite one case where the First Department granted an estoppel claim for a child in foster care, the factual underpinnings of that case are not clearly applicable to this case, and insufficient to override the strong public policies and statutory precedent in support of treating foster parents as non-parent guardians for best interests determinations.
See PHR dated 6/26/19, NY Co. Family Court, Docket # NN-26411-17
Luis S. v. Zoraida L., 39 AD3d 377, 833 N.Y.S.2d 506 (2007)
Nevertheless, because the best interests of the child are paramount in any determination and E.'s best interests must control here, this Court considered the estoppel arguments made by the foster parents and joined by the attorney for the child. This argument is also without merit. To the foster care agency's point, in this Court's view, it was not the conduct of Mr. C. which created the circumstances upon which E. and the foster parents relied. The record does not establish that Mr. C. failed to make efforts to identify himself as E.'s father; contrary to that argument, the record is barren as to the agency's attempts to locate Mr. C., despite their legal obligation to do so. Mr. C. credibly states that he was incarcerated in Pennsylvania beginning three months before the birth of the child, and was denied access to filing assistance in the correctional facility where he resided prior at the time. An April 2019 Permanency Hearing report refers to an alleged sister of Mr. C.'s who contacted the agency to assert Mr. C.'s paternity and the family's interest in caring for E. The court file reflects that Mr. C. was named as the child's father by E.'s mother on June 26, 2019, on the record before Referee Doherty, the same date the goal was changed to adoption. The court file also reflects that the agency was unable to locate Mr. C. in any correctional facility, as asserted in a Permanency Hearing Report entered into evidence on November 7, 2018. However, it is undisputed that Mr. C. was incarcerated under the name the agency had, "Robert C.". No reasonable explanation as to why the agency could not locate Mr. C. while incarcerated has been offered. The agency's argument that Mr. C. is to blame in the delay of identifying him as a putative father is without merit. To find merit would be a dangerous uprooting of laws requiring diligent efforts to locate a parent, which legal obligation is foundational to this Court's overarching goal of promoting family unity and reunification. See, e.g., SSL 384-b, FCA 1017, FCA 1055, DRL 111-a, SSL 384-c.
Shondel J., supra.
The record is also nonexistent as to ACS's efforts to locate Mr. C. in the 2017 NN docket that preceded the agency's TPR petition, as required by law
Accordingly, these facts defeat the requisite argument in an estoppel claim that Mr. C. engaged in conduct that created the circumstances of his absence in E.'s life. In this Court's view, it is the agency who bears responsibility for this particular circumstance. Likewise, the argument that E. and the T's acted in reliance on this conduct in establishing a parent-child relationship is without merit, for the reasons set forth above which distinguish the foster parent relationship from a legal or biological parent.
Again in recognition of this Court's parens patriae role in protecting E.'s best interests above all, this Court considered a stand-alone best interests argument, and rejects that claim as well. The "best interests of the child" view that the agency asks this court to adopt is an extremely narrow one. While the child is clearly bonded with the foster parents, the potential harm that could ensue from a disruption of this relationship (which, this Court notes, would not even occur upon the unsealing of these records) is but one factor in the child's best interests, which, in this Court's view, should also account for the child's future interest in knowing his biological relatives, just to note one consideration of value when determining the future best interests of a child in foster care who is too young — only at this particular moment in time — to understand familial and caretaker nuances.
And it is worth noting that, after submission of all papers on this motion, it was reported to the Court in a related matter that these foster parents have separated, but are willing to adopt E. and, presumably, would co-parent separately. --------
The agency's framing of the harm to E. also does not accurately portray the circumstances E. would face upon the unsealing of DNA results and subsequent determination of parentage as to Mr. C.. The agency argues that E. would be harmed by disruption of the only parental relationship he knows. There is no question that disruption of E.'s relationship with the T's, were it to occur, may cause E. emotional harm. Yet such outcome is far from guaranteed. Even if DNA were to establish Mr. C. as E.'s biological father, it has yet to be determined whether Mr. C. would be entitled to unsupervised visitation with the child, or even liberal supervised visitation. The determination of placing or releasing E. to Mr. C. is even further off. Other potential outcomes in the event Mr. C.'s parentage is legally established include Mr. C.'s legal rights being terminated, and Mr. C.'s voluntary surrender of the child which could include conditions permitting E. and Mr. C. to maintain contact and have a familial relationship, albeit not custodial in nature.
Lastly, E. remains without a legal father. Although the foster parents assert their willingness to adopt E. if he is freed for adoption, such status is not guaranteed. Unfortunately, adoptions fail for a multitude of reasons, and to treat the T's potential future legal parentage as a certainty to the extent that another individual is denied an opportunity to assert their own right to parentage would put E.'s right to be parented at risk. In this Court's view, the best interests of a child in foster care are served by increasing the number of resources available to a child, not decreasing them.
For these reasons, the agency's motion to deny Mr. C.'s petition for paternity is hereby denied. It is hereby ORDERED that OTSC #1 is denied, and that the results of the DNA testing shall be unsealed and entered.
This constitutes the decision and the order of the Court. Dated: __3/23/2021_____ ENTER: ____/s/__________ Honorable Maria Arias Judge, Family Court