Opinion
499 CAF 22-01591
07-28-2023
In the Matter of JOEY L.F., Petitioner, v. JERID A.F., Respondent-Respondent. Jason J. Cafarella, Esq., Attorney for the Child, Appellant.
JASON J. CAFARELLA, NIAGARA FALLS, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
JASON J. CAFARELLA, NIAGARA FALLS, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 8, petitioner filed a family offense petition on behalf of her son (subject child) against respondent. Respondent moved to dismiss the petition on the ground that it was facially insufficient. The Attorney for the Child (AFC) appeals from an order granting the motion.
We conclude that, under the circumstances of this case, the AFC lacks standing to bring an appeal on behalf of the subject child (cf. Matter of Sloma v. Saya , 210 A.D.3d 1494, 1494, 178 N.Y.S.3d 862 [4th Dept. 2022] ; see generally Matter of McDermott v. Bale , 94 A.D.3d 1542, 1543, 943 N.Y.S.2d 708 [4th Dept. 2012] ). Generally speaking, the legislature has "demonstrated [its] preference for natural guardians," such as petitioner, to represent their minor children in a proceeding ( Bluntt v. O'Connor , 291 A.D.2d 106, 113, 737 N.Y.S.2d 471 [4th Dept. 2002], lv denied 98 N.Y.2d 605, 746 N.Y.S.2d 279, 773 N.E.2d 1017 [2002] [internal quotation marks omitted]; see Sutherland v. City of New York , 107 A.D.2d 568, 568, 483 N.Y.S.2d 307 [1st Dept. 1985], affd 66 N.Y.2d 800, 497 N.Y.S.2d 906, 488 N.E.2d 837 [1985] ; see generally CPLR 1201 ). Given that preference, we conclude that an AFC cannot, in most Family Court Act article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so. In this case, petitioner did not appeal even though it was her petition that was dismissed. We also note that there is no evidence that petitioner has "an interest adverse to the" subject child that would warrant termination of her role as guardian in the proceeding, thereby permitting the AFC to bring an appeal on the child's behalf ( Bluntt , 291 A.D.2d at 113, 737 N.Y.S.2d 471 [internal quotation marks omitted]; see generally Stahl v. Rhee , 220 A.D.2d 39, 44, 643 N.Y.S.2d 148 [2d Dept. 1996] ). To conclude that the AFC has standing to appeal where petitioner has not done so would effectively force a parent—the individual who originated the proceeding on the subject child's behalf—to litigate a position that they have abandoned (see generally Matter of Kessler v. Fancher , 112 A.D.3d 1323, 1323-1324, 978 N.Y.S.2d 501 [4th Dept. 2013] ). This would, in some cases, override a parent's reasonable decision-making authority. For instance, a parent who commenced a Family Court Act article 8 proceeding as the child's guardian may decide that further litigation is unwise because, to substantiate the petition, the child would have to testify and be retraumatized in the process. In short, absent unusual circumstances not present here, an AFC cannot overrule the decision-making authority of a parent, the party the legislature prefers to act as the child's guardian, and take an appeal where the parent has not done so. Consequently, because the AFC lacks standing here, we dismiss the appeal.