| Matter of Commissioner of Social Servs. v Julio J. |
| 2012 NY Slip Op 03082 [94 AD3d 606] |
| April 24, 2012 |
| Appellate Division, First Department |
| In the Matter of Commissioner of Social Services, on Behalf ofElizabeth S., Respondent, v Julio J., Appellant. |
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Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), forrespondent. Karen Freedman, Lawyers for Children, Inc., New York (Brenda Soloff of counsel), attorneyfor the child.
Order of filiation, Family Court, New York County (Mary E. Bednar, J.), entered on or aboutNovember 8, 2010, declaring respondent to be the father of the subject child, reversed, on thelaw, without costs, and the matter remanded for further proceedings to include the performanceof a biological paternity test.
In this paternity proceeding under article 5 of the Family Court Act, petitioner agency failedto establish by evidence that was clear, convincing and entirely satisfactory (see Matter ofCommissioner of Social Servs. v Philip De G., 59 NY2d 137, 141-142 [1983]; Matter of Tanesha H. v Phillip C., 57AD3d 403 [2008]; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book29A, Family Ct Act § 531, at 105 [2009 ed]) that respondent acted as the child's father tosuch an extent as to give rise to equitable estoppel barring him from denying paternity andrendering a biological paternity test inappropriate (see Family Ct Act § 532). Therewas no evidence that respondent has played a significant role in raising, nurturing or caring forthe child, much less that he has ever had an operative parent-child relationship with her (see Matter of Gutierrez vGutierrez-Delgado, 33 AD3d 1133, 1135 [2006] [holding that it was error to applyequitable estoppel where "an established and significant parent-child relationship" was absent];cf. Matter of Juanita A. v Kenneth MarkN., 15 NY3d 1, 5 [2010] [equitable estoppel "protects the status interests of a child in analready recognized and operative parent-child relationship"] [internal quotation marksomitted]; Matter of Enrique G. v LisbetE., 2 AD3d 288, 289 [2003] [applying equitable estoppel to avoid "disruption of (thechild's) close relationship" with the putative father]).
While respondent did not deny that he has maintained an intermittent and essentiallyavuncular relationship with the child, petitioner made no showing that respondent hasaffirmatively 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 thattime. As to his interactions with the child herself, the evidence shows, at most, that he did notobject 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 hershopping; and that, on at least one occasion, he took her to a park. Petitioner made no showingthat respondent's contacts with the child occurred with any degree of regularity or were sufficientto render him a significant presence in her life (cf. Matter of Sarah S. v James T., 299AD2d 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" andhad weekly telephone calls with him]). During respondent's two years of military service, it isundisputed that he had no interaction with the child at all, even by telephone. Moreover, the childdid 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 andtalked 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 butdistant relationship and do not suffice to demonstrate by clear and convincing evidence thatconducting 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 thechild to suffer "irreparable loss of status, destruction of her family image, or other harm to herphysical 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 underFamily Court Act § 532. Concur—Saxe, J.P., Friedman and Freedman, JJ.
Moskowitz and Richter, JJ., dissent in a memorandum by Richter, J., as follows: Following ahearing, the Family Court Judge, who had an opportunity to observe the witnesses and assesstheir 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 greatextent, and fails to recognize controlling law, which dictates that the best interests of the child arethe exclusive consideration in determining whether equitable estoppel applies; therefore, Idissent.
By the time of the hearing on the paternity proceeding, the child was eight years old. InMarch 2002, about two months before the child's birth, the mother informed respondent that shewas pregnant. Respondent, accompanied by his own mother, came to the hospital when the childwas born and visited for approximately two hours. The mother testified that respondent brought astroller 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 inColorado for approximately two years. He did not have any contact with the mother and childduring this time. It is unclear, based on the hearing testimony, when respondent reentered the[*3]child's life. The mother agreed at the hearing that during thefirst four years of her daughter's life, they had "bumped into" respondent in the neighborhood anumber of times and he would identify himself as the child's dad. Further, the mother stated thatrespondent was the only man the child had called "Daddy" and the only man she, the mother, hadever introduced to the child as "Dad." Respondent would even ask the child, "Who am I?" andthe child would respond, "Daddy."
Respondent also gave the child money on various occasions, anywhere from one dollar to tendollars, in addition to buying her candy when she asked for it or if she was hungry. The mothertestified that respondent would call her cell phone to get in touch with the child, to ask how thechild was doing, and to speak with her. The child also had met a few members of respondent'sfamily and had visited his sister at her house. Indeed, the mother stated, that when the child sawrespondent around the neighborhood, she would openly call him "Daddy" and he would notattempt to correct her otherwise. Moreover, both the mother and the Attorney for the Childinformed the court that the child had expressed a desire to spend as much time as possible withrespondent.
In addition to allowing and even encouraging the child to call him "Dad," respondent alsoshowered 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 abookbag. Respondent also gave the child birthday presents, including clothes and an educationalgame. Further, respondent and his current girlfriend gave the child a coat and boots as an Easterpresent, 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 "friendlygesture," and that he had treated other needy children in a similar fashion. Family Court foundrespondent's explanation to be unpersuasive, and noted that many of the contacts respondent hadmade with the child appeared to be fatherly. Family Court also rejected respondent's testimonythat he had let the child call him "Daddy" because he had not wanted to correct her and confuseher, or respond to her in a "negative reaction."
After hearing from the mother, respondent, and the Attorney for the Child, the courtdetermined that it would be to the child's detriment to direct a DNA test. The court found that thechild knew respondent as her father and that she had expressed to both her attorney and hermother a desire to spend more time with him. Furthermore, the court noted that respondent haddone nothing to dissuade the child of this view, and in fact, had encouraged the development of aparent-child relationship in the child's eyes. The court had an opportunity to view the witnessesand make credibility determinations, and its findings should be accorded great deference onappeal (Matter of Celenia M. v FaustinoM., 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. (7NY3d 320 [2006]). The Shondel Court stated that "the only issue for the court ishow the interests of the child are best served" (id. at 331). The critical factors to beconsidered are whether respondent held himself out to be the father; if the child justifiably reliedon this representation; and if the child will be harmed by the denial of paternity (id. at327). Equitable estoppel, a remedy based in fairness, protects "the status interests of a child in analready recognized and operative parent-child relationship" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 5 [2010][internal quotation marks omitted]). Indeed, in such proceedings "the issue does not involve theequities between the two adults; the case turns exclusively on the best [*4]interests of the child" (Shondel, 7 NY3d at 330).
Here, despite the majority's attempt to minimize the contact between respondent and thechild, the Family Court properly determined that respondent held himself out as the child's fatherand 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'slife as the father and the only man the child called "Daddy." Respondent confirmed that the childdid indeed call him "Daddy" and that he had made no effort to disavow her of that notion. Heeven 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, andtherefore 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 sameamount as during all the previous years combined. Respondent had increased the amount of timehe 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 FamilyCourt properly concluded that the best interests of the child required that respondent be estoppedfrom denying paternity" (Matter ofCommissioner of Social Servs. v Victor C., 91 AD3d 417, 418 [2012]). The Attorneyfor the Child, after interviewing the child, reported to the court that she had expressed a desire tospend more time with her dad. The child even told her attorney that when she was bornrespondent had visited her and her mother in the hospital and that he had held her, a fact that wasimportant to the child. The child has developed a bond with respondent, one that he hasencouraged and actively developed in the past year. She knows him as her dad, and desires tospend "24 hours a day with him" according to the mother. At the time of the hearing the childwas eight years old. To now, at this stage in her life, order a DNA test and let her know thatrespondent questions his bond with her would be detrimental to her and would cause her to sufferirreparable loss of status (compareMatter of Derrick H. v Martha J., 82 AD3d 1236, 1239 [2011]).[FN*]
In the eight years since the child's birth, respondent has not sought a paternity test, despite hisclaims that he raised the issue with the mother on various occasions. Respondent had a choice tomake; he could "either put the doubts aside and initiate a parental relationship with the child, orinsist 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 ableto insist on a paternity test.
The cases cited by the majority do not mandate a reversal of Family Court. In Matter of Gutierrez vGutierrez-Delgado (33 AD3d 1133 [2006]) it was undisputed that there was a lack of anestablished parent-child relationship, and the mother had told the respondent he was not thefather 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 hasdeveloped a bond with him and wishes to spend even more time with him. Further, respondenthere engaged in contacts that were fatherly in nature—namely, purchasing the childclothes, underwear, a bookbag, coat, and boots. These are items that a parent, and not a strangeror acquaintance, typically buys for his or her child.
Matter of Derrick H. v MarthaJ. (82 AD3d 1236 [2011], supra), also is distinguishable. In that case, thehearing evidence established that no parent-child relationship existed between the alleged fatherand the three-year-old child, because the two had only limited contact during the first 18 monthsof 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] werepermitted 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 yearswhile he was in the military, and significantly increased his time with her during 2010. She callshim, and only him, "Daddy" and she has continually expressed a desire to spend as much timewith him as possible. Accordingly, petitioner agency established that it was in the best interestsof the child that respondent be estopped from denying his paternity and Family Court's rulingshould be affirmed.
Footnote *: The majority, in pointing outthat the child did not testify at the hearing and that the court did not conduct an in camerainterview, fails to recognize that had the child been subjected to either she would have realizedthat respondent was contesting his parental relationship. This would have defeated the purpose ofthe equitable estoppel hearing.