Alex A. v. Nivia A.

• Decision Date: 09 May 2019
• Docket Number: REDACTED
• Citation: 2019 NY Slip Op 50714 (U)
• Parties: In the Matter of Alex A., Petitioner, v. Nivia A., Respondent.
• Court: New York Family Court

2019 NY Slip Op 50714(U)

In the Matter of Alex A., Petitioner, v. Nivia A., Respondent.

REDACTED

Family Court, Bronx County

Decided on May 9, 2019

Geoffrey Berman, Esq., for Cardinal McCloskey

Katherine Tracey, Esq., Assigned counsel for the petitioner

Elizabeth Posse, Esq., Assigned counsel for the child

Gilbert A. Taylor, J.

Procedural History

The subject child Malachi A. was born on February 1, 2011 and has been in the care of Cardinal McCloskey Community Services (hereinafter, "Cardinal McCloskey") continuously since August 24, 2011, when an Article 10 petition was filed by the Administration for Children's Services (hereinafter "ACS") against his mother, Nivia A. (hereinafter, "Respondent").

On December 3, 2013, Cardinal McCloskey filed a termination of parental rights petition against the Respondent in Bronx County Family Court, alleging in part that there was no man who had the right to notice of the termination of parental rights proceeding pursuant to Social Services Law("SSL") 384-c, or whose consent to the child's adoption is required by Domestic Relations Law("DRL") 111.

On October 6, 2014, petitioner Alex A. (hereinafter, "Petitioner") filed a paternity petition in Bronx County Family Court, seeking a declaration of paternity.This petition was dismissed without prejudice on October 9, 2014 by Referee Guido due to the Petitioner's failure to appear.

On October 9, 2014, the Petitioner filed a second paternity petition in Bronx County Family Court, seeking "a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances."

On November 3, 2014, an appearance was scheduled to discuss the possibility of settlement on the termination matter given that the approved goal at the permanency hearing on the Article 10 matter held on October 9, 2014 was "Return to Parent."The Petitioner's paternity petition was not on the docket for this day.The matter was adjourned to January 28, 2015.

On January 28, 2015, a scheduled court attorney conference was held.The Petitioner was present, but he was asked to remain outside the conference room and was given a return slip with an adjourn date of March 6, 2015.The Petitioner was instructed to obtain a new summons for service from the petition room for that March 6, 2015 appearance before the Honorable Karen Lupuloff.

On March 6, 2015, both the paternity and termination of parental rights dockets came before Judge Lupuloff.Testimony was taken on the termination matter, specifically as it related to the existence of whether there is any man entitled to notice of the termination proceeding.During that proceeding, Judge Lupuloff made a finding that, as to Malachi, there is no man entitled to notice of the proceeding to terminate parental rights to the child pursuant to Section 384-c of the Social Services Law or whose consent to the adoption of the child is required before the child was freed for adoption pursuant to Section 111 of the Domestic Relations Law.¹As far as the record reflects, the Petitioner was not assigned an attorney nor was any testimony taken on the issue of establishing or declaring paternity for the Petitioner as it related to his paternity petition.Furthermore, there were no orders issued for genetic marker testing to be conducted.Nonetheless, on this date, the Petitioner's paternity petition was dismissed with prejudice on the premise that there were findings made by clear and convincing evidence pursuant to the termination petition that there is no man entitled to notice (of these proceedings) and no consent father.

Additionally, on March 6, 2015, as to the Respondent, Judge Lupuloff dismissed the termination of parental rights petitions filed against her, finding that Cardinal McCloskey failed to meet its burden of proving by clear and convincing evidence that she permanently neglected her children.

On July 8, 2015, the underlying Article 10 matter was scheduled for a permanency hearing.At that time, there was mention that Cardinal McCloskey had filed a notice of appeal regarding the dismissal of the termination of parental rights petitions, but that the agency had not yet perfected the appeal.By September 8, 2015, Cardinal McCloskey perfected its appeal, and the matter was calendared for the First Department Appellate Division's November 2015 term.The trial court's decision was affirmed by the First Department Appellate Division on May 19, 2016.

On November 13, 2015, findings of fact, conclusions of law and an order of disposition were certified and entered as to the termination matter, finding in part that there is no known male who is entitled to notice of the termination proceeding or of Malachi's adoption pursuant to Section 384-c of the Social Services Law, or whose consent to the adoption of Malachi is required pursuant to Section 111 of the Domestic Relations Law.

On February 11, 2016, the Petitioner filed a third paternity petition in Bronx County Family Court, seeking "a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances."This petition was dismissed without prejudice on February 18, 2017 by the Honorable Karen Lupuloff due to the Petitioner's failure to appear.

On May 10, 2017, a new termination of parental rights petition was filed by Cardinal McCloskey against the Respondent, alleging that she permanently neglected Malachi.

On October 31, 2017, the Respondent executed a conditional surrender and an order terminating her rights was signed by this Court.Accordingly, the child Malachi was freed for adoption.

On June 5, 2018, the Petitioner filed the instant paternity petition, seeking "a declaration of paternity, an order of support and such other and further relief as may be appropriate under the circumstances."

On June 14, 2018, the paternity petition was scheduled for a first appearance.Over the objection of the Attorney for the Child, the Court ordered genetic marker testing; since the child is freed for adoption, but not yet adopted, the Court deemed it in the best interests of the child for paternity to be established.The Attorney for the Child was given 14 days to file any papers opposing the genetic marker testing test.There were no objection papers filed within that time frame.

On August 13, 2018, the matter was scheduled for a permanency hearing on the docket for the conditional surrender.On this date, the Petitioner was present, and the results of the genetic marker testing revealed that he is the biological father of Malachi.The matters were adjourned to September 20, 2018 for continued permanency hearing and status on the paternity petition.

On September 20, 2018, the Petitioner was assigned counsel to represent him.The Attorney for the Child sought an estoppel hearing and opposed the entry of an order of filiation for the Petitioner.

On October 25, 2018, counsel for the Petitioner requested visitation, and the Court denied that application.The Attorney for the Child indicated an intent to pursue an estoppel hearing, and the hearing was scheduled for the following court appearance.This Court indicated it would postpone Malachi's adoption until any such estoppel hearing is completed.

On December 21, 2018, the matter was scheduled for a permanency hearing as well as an estoppel hearing.However, testimony was not taken due to counsel for the Petitioner seeking to be relieved.The Petitioner's attorney was relieved, and the Petitioner was assigned another 18B attorney.The estoppel hearing was rescheduled to March 1, 2019 to accommodate newly assigned counsel.

On January 3, 2019, counsel for Cardinal McCloskey filed a Notice of Motion seeking an order to dismiss the instant petition in its entirety based on the doctrine of res judicata.

On February 19, 2019, the Attorney for the Child filed an Affirmation in Support of the agency's motion.Additionally, the Attorney for the Child argued that the Petitioner should be collaterally estopped from establishing paternity.

On February 28, 2019, counsel for the Petitioner filed an Affirmation in Opposition of the agency's motion.

On March 1,2019, the matter was scheduled for commencement of an estoppel hearing.With respect to the motion filed by Cardinal McCloskey, the Court did not dismiss the paternity petition,...