Decatur v. Ahearn

• Citation: 89 A.D.2d 742,453 N.Y.S.2d 946
• Parties: F. Richard DECATUR, Jr., as Guardian ad Litem of Katherine Quinn Dwyer, an infant, et al., Appellants, v. Frances AHEARN et al., Respondents. In the Matter of Mary S. BURCH, Respondent, v. Edward AHEARN et al., Respondents, and Mary Jane England, as Commissioner of Social Services of the Commonwealth of Massachusetts, Appellant.
• Decision Date: 29 July 1982
• Court: New York Supreme Court Appellate Division

Page 946

453 N.Y.S.2d 946

89 A.D.2d 742

F. Richard DECATUR, Jr., as Guardian ad Litem of Katherine

Quinn Dwyer, an infant, et al., Appellants, v. Frances AHEARN et al., Respondents.

In the Matter of Mary S. BURCH, Respondent, v. Edward AHEARN et al., Respondents, and Mary Jane England, as Commissioner of Social Services of the

Commonwealth of Massachusetts, Appellant.

Supreme Court, Appellate Division Third Department.

July 29, 1982.

F. Richard Decatur, Jr., Jerome K. Frost, Troy, and Harvey & Harvey, Mumford & Kingsley, Albany, for appellants in Action 1 and respondent in Action No. 2.

Tabner, Carlson, Daffner & Farrell, Albany (John W. Tabner, Albany, of counsel), for respondents in Action No. 1, and appellant in Action No. 2.

Arthur J. Harvey, Albany, of counsel, for respondent, Mary S. Burch, in Action No. 2.

Timothy M. Tippins, Troy, law guardian for the infant, Katherine Quinn Dwyer.

Before MAHONEY, P. J., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal, in Action No. 1, from an order of the Supreme Court at Special Term, entered September 2, 1981 in Rensselaer County, which, inter alia, dismissed plaintiffs' complaint.

Appeal, in Action No. 2, by permission, from an order of the Family Court of Rensselaer County, entered February 9, 1982, which ruled that the court has jurisdiction to hear and determine the issue of custody of the infant Katherine Quinn Dwyer.

Katherine Quinn Dwyer is a six-year-old born out of wedlock in Massachusetts to Mary Catherine Dwyer, who became an alcoholic and was periodically unable to care for the child. On November 3, 1978, Mary signed a form agreement of temporary care for Katherine with the Massachusetts Department of Public Welfare, which then placed the child with Edward and Frances Ahearn for foster care. When the mother attempted to rescind the agreement and terminate foster care, the department, on July 17, 1979, petitioned for and obtained an order from the Probate Court awarding the department temporary custody, the child remaining with the Ahearns. In a petition to the Probate Court filed March 13, 1980, Mary Burch, the child's maternal grandmother, sought appointment as guardian with custody. On March 25, 1980, the department, because of the mother's deteriorating condition, petitioned for an order pursuant to Chapter 210 of the Massachusetts General Laws dispensing with the need for parental consent to any petition by the department for adoption. ^* Home studies of both the Ahearns and Mary Burch were obtained. The pending petitions by Burch and the department were both conferenced by the court on November 20, 1980, at which time Burch, her attorney, Mary, the child and the department's attorney were all present. Burch was given a visitation order to take the child to Troy, New York, for the 1980 Christmas holiday. On January 7, 1981, the mother perished in a fire. On April 14, 1981, Burch again obtained an order for visitation with the child in Troy for one week, and on April 22, 1981, she filed a petition in the Rensselaer County Family Court pursuant to section 651 (subd. ) of the Family Court Act seeking custody of the child (Action No. 2). By order made the same date, the Family Court ordered the Ahearns and the Massachusetts Commissioner of Social Services (formerly Public Welfare) to show cause on May 18, 1981 why custody should not be awarded to Burch, and further ordered that temporary custody be awarded to her. On May 22, 1981, Justice Mary Fitzpatrick of the Massachusetts Probate Court, upon learning the child had not been returned to that State, granted the department's pending chapter 210 petition dispensing with parental consent for Katherine's adoption, and in another order awarded temporary custody to the department. The Justice wrote to the Rensselaer County Family Court fully apprising it of the pending matter in her court and stating that Massachusetts was the appropriate jurisdiction. On May 26, 1981, the Probate Court granted an order of adoption to the Ahearns. Thereafter, on July 1, 1981, the infant Katherine, by her guardian ad litem Decatur, and Burch, commenced Action No. 1 in Supreme Court, Rensselaer County, seeking money damages due to deprivation of their civil and constitutional rights, an injunction restraining defendants from any further action to obtain custody, a declaration that the adoption is void and that custody be awarded to Burch, and money damages for negligent representation by the Massachusetts attorney representing the child. By order to show cause, plaintiffs then sought to remove the pending Rensselaer County Family Court proceeding commenced by Burch to Supreme Court, and defendants cross-moved to dismiss the action. Special Term denied removal, finding the Family Court best qualified to determine the custody issues, and granted the cross motions to dismiss the complaint. Plaintiffs have appealed.

In Action No. 2, the Rensselaer County Family Court, after hearings, held that the court had jurisdiction pursuant to section 75-d of the Domestic Relations Law and ordered a trial on the merits of the petition. Respondents have appealed from that determination.

In Action No. 1, we hold that Special Term properly dismissed the complaint, albeit we affirm that result upon a different ground. We conclude that the facts so clearly invoke the application of the provisions of CPLR 327 that consideration of whether the complaint states a cause of action should not be indulged. In essence, the only connection the present litigation has with New York is that plaintiff Burch is a domiciliary. All the other parties against whom a cause of action has been stated are domiciliaries of Massachusetts. The substance of the action is whether the notice which was issued from the Massachusetts Probate Court was sufficient in the Massachusetts adoption proceeding. On balancing the interests and conveniences of the respective parties and of the courts, we conclude that the action could be better adjudicated in a Massachusetts forum. This is not a case where plaintiffs are precluded from effective redress of their grievances in a more appropriate forum (see Varkonyi v. S. A. Empresa De Viacao Airea Rio Grandense 22 N.Y.2d 333, 338, 292 N.Y.S.2d 670, 239 N.E.2d 542). We find no "special and unusual circumstances" warranting continued acceptance of this action in New York (Taylor v. Interstate Motor Frgt. System, 309 N.Y. 633, 636, 132 N.E.2d 878). Nor does Burch's residence in New York preclude us from staying or dismissing the action (CPLR 327; Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619). In sum, we conclude that New York is an inconvenient forum and that litigation in Massachusetts would best serve the ends of justice and the convenience of the parties. The complaint should, therefore, be dismissed, without prejudice.

In Action No. 2, we hold that the Rensselaer County Family Court erred, requiring reversal of the order and dismissal of the petition. That court relied upon section 75-d (subd. 1, par. ) of article 5-A of the Domestic Relations Law (Uniform Child Custody Jurisdiction Act) by holding "it is in the best interest of the child that the court assume jurisdiction because the child and Burch have a significant connection with New York State", and "there is within the jurisdiction of the court substantial evidence concerning the child's present or future care, protection, training and personal relationships". It was, however,...