Opinion
525201
06-06-2019
In the Matter of MONTGOMERY COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF MELISSA W., Respondent, v. JOSE Y., Respondent, and Daniel X., Appellant.
Michelle Rosien, Philmont, for appellant. Robert J. Kruger, Montgomery County Department of Social Services, Fultonville, for Montgomery County Department of Social Services, respondent. Erin K. Hayner, Saratoga Springs, for Melissa W. Karen R. Crandall, Schenectady, attorney for the child.
Michelle Rosien, Philmont, for appellant.
Robert J. Kruger, Montgomery County Department of Social Services, Fultonville, for Montgomery County Department of Social Services, respondent.
Erin K. Hayner, Saratoga Springs, for Melissa W.
Karen R. Crandall, Schenectady, attorney for the child.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P. Melissa W. (hereinafter the mother) is the unmarried mother of a child (born in 2012). In March 2016, the mother filed a paternity petition alleging that respondent Jose Y. was the child's father. In May 2016, petitioner also filed a petition for paternity and support, on behalf of the mother, likewise alleging that Jose Y. was the father of the child. At an August 2016 appearance before a Support Magistrate, the mother asserted that a genetic marker test would be "extremely detrimental to [her] child" and orally moved to dismiss both petitions against Jose Y., alleging that, since the child's birth, another individual, respondent Daniel X., had previously established a parent-child relationship with the child. Based on the mother's assertions, the Support Magistrate determined that the mother was essentially asserting an equitable estoppel claim and referred the matter to Family Court.
Petitioner filed its petition because the mother and the child receive public assistance (see Family Ct. Act § 522 ).
In 2014, the mother previously filed a paternity petition alleging that Daniel X. was the father of the child; however, she withdrew said petition in February 2015.
The mother thereafter failed to appear at the first appearance before Family Court, and the court dismissed her paternity petition without prejudice. Daniel X. was thereafter summoned to appear as an interested party with respect to petitioner's paternity petition and, at a November 1, 2016 court appearance, he was served with a copy of the petition and named as a respondent in this proceeding. Following a fact-finding hearing, Family Court determined that Jose Y. was equitably estopped from asserting paternity and that Daniel X. was equitably estopped from denying paternity based on the fact that he held himself out as the father of the subject child and it would be detrimental to the child's best interests to disrupt the parent-child relationship that has been established. Family Court also entered an order of filiation, declaring Daniel X. to be the father of the child. Daniel X. now appeals, and we affirm.
Following her failure to appear, Family Court issued a warrant for the mother's arrest.
We reject Daniel X.'s contention that his right to procedural due process was denied in this paternity proceeding. Initially, Family Court properly joined Daniel X. as a respondent given that, as a putative father, he was an interested and necessary party for purposes of not only protecting his own rights, but determining the nature and quality of his relationship with the child so as to enable Family Court to render a proper determination as to the child's best interests (see Matter of Juanita A. v. Kenneth Mark N. , 15 N.Y.3d 1, 6, 904 N.Y.S.2d 293, 930 N.E.2d 214 [2010] ; Matter of Edward WW. v. Diana XX. , 79 A.D.3d 1181, 1183 n., 913 N.Y.S.2d 785 [2010] ; Matter of Richard W. v. Roberta Y. , 212 A.D.2d 89, 91, 629 N.Y.S.2d 512 [1995] ; see also CPLR 1001[a] ). Further, and contrary to Daniel X.'s contention that he did not receive proper notice of the proceeding, the record contains an affidavit of service demonstrating that he was personally served with the subject petition in October 2016. Although he failed to appear at the next scheduled court appearance, he did appear before Family Court on November 1, 2016 and, given his continued assertion that he was never served, Daniel X. was provided with a copy of the petition on that day, in open court. Family Court also informed Daniel X. of the nature of the proceeding, that the purpose thereof was to determine who is or should be deemed the father of the child, explained the general principles of equitable estoppel and assigned counsel to represent him at all further proceedings (see Family Ct. Act § 262[a] [viii] ). At the ensuing fact-finding hearing, Daniel X. appeared with counsel and was provided the opportunity to make opening and closing statements, presented evidence on his own behalf – including his own testimony – made relevant objections and cross-examined witnesses. Lastly, Family Court properly took judicial notice of all prior proceedings in this matter, without any objection from the parties (see Matter of Wilson v. McCray , 125 A.D.3d 1512, 1512, 3 N.Y.S.3d 555 [2015], lv denied 25 N.Y.3d 908, 2015 WL 2237599 [2015] ), and there is nothing in the record demonstrating that Daniel X. was denied access to or was otherwise prevented from adequately reviewing those prior proceedings in preparation for the subject hearing. Accordingly, we discern no violation of Daniel X.'s due process rights, as he had adequate notice of the subject fact-finding hearing and was provided a full and fair opportunity to be heard with respect to the paternity petition (see Matter of Michael S. v. Sultana R. , 163 A.D.3d 464, 473–474, 82 N.Y.S.3d 364 [2018] ; cf. Matter of Kimberly RR. [Gloria RR.—Pedro RR.] , 165 A.D.3d 1428, 1430, 87 N.Y.S.3d 348 [2018] ; Matter of Gary MM. [Girard MM.] , 100 A.D.3d 1206, 1207, 955 N.Y.S.2d 230 [2012] ).
Turning to the merits, it is well settled that "[t]he party seeking to prove paternity, whether by estoppel or otherwise, must do so by clear and convincing evidence" ( Matter of Commissioner of Social Servs. v. Julio J. , 20 N.Y.3d 995, 997, 961 N.Y.S.2d 363, 985 N.E.2d 127 [2013] ; see Matter of Suffolk County Dept. of Social Servs. v. James D. , 147 A.D.3d 1067, 1068, 48 N.Y.S.3d 248 [2017] ; Matter of Clovsky v. Henry J. , 238 A.D.2d 670, 670, 656 N.Y.S.2d 74 [1997], lv dismissed 91 N.Y.2d 911, 669 N.Y.S.2d 255, 692 N.E.2d 124 [1998] ). The purpose of imposing equitable estoppel is "to protect the status interests of a child in an already recognized and operative parent-child relationship" ( Matter of Shondel J. v. Mark D. , 7 N.Y.3d 320, 327, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006] [internal quotation marks and citation omitted]; see Matter of John J. v. Kayla I. , 137 A.D.3d 1500, 1501, 28 N.Y.S.3d 485 [2016] ; Matter of Dustin G. v. Melissa I. , 69 A.D.3d 1019, 1019–1020, 891 N.Y.S.2d 735 [2010], lv denied 14 N.Y.3d 708, 2010 WL 1755124 [2010] ). Therefore, "[p]ursuant to Family Ct. Act § 532(a), a genetic marker test may not be ordered if it is not in the best interests of the child on the basis of ... equitable estoppel" ( Matter of Schenectady County Dept. of Social Servs. v. Joshua BB. , 168 A.D.3d 1244, 1244, 92 N.Y.S.3d 430 [2019] [internal quotation marks and citation omitted]; see Matter of Mario WW. v. Kristin XX. , 149 A.D.3d 1227, 1227, 51 N.Y.S.3d 678 [2017] ). Although the paramount concern in a paternity proceeding is the child's best interests (see Matter of Juanita A. v. Kenneth Mark N. , 15 N.Y.3d at 5, 904 N.Y.S.2d 293, 930 N.E.2d 214 ; Matter of Kristen D. v. Stephen D. , 280 A.D.2d 717, 719, 719 N.Y.S.2d 771 [2001] ), Family Ct Act article 5 "still retains as an objective the protection of the public from bearing the cost of supporting children where there exists a viable, legally obligated source of support" ( Matter of Suffolk County Dept. of Social Servs. v. James D. , 147 A.D.3d at 1068, 48 N.Y.S.3d 248 [internal quotation marks, ellipsis and citation omitted]; see Family Ct Act § 522 ). In reviewing a paternity determination, we accord great deference to Family Court's findings of fact and credibility determinations (see Matter of Patrick A. v. Rochelle B. , 135 A.D.3d 1025, 1028, 23 N.Y.S.3d 660 [2016], lv dismissed 27 N.Y.3d 957, 29 N.Y.S.3d 919, 49 N.E.3d 1213 [2016] ; Matter of Vicki W. v. Michael X. , 235 A.D.2d 870, 871, 652 N.Y.S.2d 669 [1997] ).
The mother testified that she has been in an "on and off" relationship with Daniel X. for approximately seven years and that, since the birth of the child, Daniel X. has, at all relevant times, acted as the child's father. According to the mother, when the child was an infant, Daniel X. would provide diapers, baby supplies and food. He also provided the mother with money to purchase Christmas and birthday presents, school supplies and clothes for the child and contributed towards the mother's cable bill and the cost of school photographs. Although the mother acknowledged that she and Daniel X. have never lived together, she testified that he would frequently stay at her residence "[f]or days on end" and, during such time, he would help with daily activities, including feeding and dressing the child, putting her to bed at night and caring for her when she was sick. Most significantly, the mother testified that the child, who was nearly four years old at the time of the hearing, had established an emotional attachment to Daniel X. He is the only person that she calls "daddy," he is responsive to being called "daddy" and, according to the mother, Daniel X. tells the child that he loves her.
Although Daniel X. testified on his own behalf and denied ever having sexual intercourse with the mother or having any contact with the child, Family Court found his testimony to be "palpably unbelievable." Given the mother's largely unconverted testimony regarding the financial support that Daniel X. provided, the emotional bond established between the child and Daniel X. and giving deference to Family Court's fact-finding and credibility determinations, under these circumstances, we find that Family Court appropriately concluded that it was in the child's best interests to equitably estop Daniel X. from denying paternity (see Matter of Kerry Ann P. v. Dane S. , 121 A.D.3d 470, 471, 994 N.Y.S.2d 99 [2014] ; Matter of Glenda G. v. Mariano M. , 62 A.D.3d 536, 536, 880 N.Y.S.2d 18 [2009], lv denied 13 N.Y.3d 708, 2009 WL 3350436 [2009] ; Matter of Savel v. Shields , 58 A.D.3d 1083, 1084, 872 N.Y.S.2d 597 [2009] ; Matter of Sarah S. v. James T. , 299 A.D.2d 785, 785–786, 751 N.Y.S.2d 61 [2002] ; compare Matter of Starla D. v. Jeremy E. , 95 A.D.3d 1605, 1606–1607, 945 N.Y.S.2d 779 [2012], lv dismissed 19 N.Y.3d 1015, 951 N.Y.S.2d 711, 976 N.E.2d 239 [2012] ).
Lynch, Clark, Mulvey and Pritzker, JJ., concur.
ORDERED that the order is affirmed, without costs.