In re Alamgir A.

• Decision Date: 22 February 2011
• Citation: 917 N.Y.S.2d 309,81 A.D.3d 937
• Parties: In the Matter of ALAMGIR A. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 309

81 A.D.3d 937

In the Matter of ALAMGIR A. (Anonymous), appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 22, 2011.

Milbank, Tweed, Hadley & McCloy LLP, New York, N.Y. (Eric I. Weiss and Stacey Rappaport of counsel), for appellant.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

In a guardianship proceeding pursuant to Family Court Act article 6, the subject child, Alamgir A., appeals from an order of the Family Court, Queens County (McGrady, Ct.Atty.Ref.), dated March 8, 2010, which, after a hearing, denied his motion for an order making findings that he is dependent on the Family Court, that he is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in his best interest to be returned to his previous country of nationality or last habitual residence, so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J), and denied the petition of Mohammed Uddin for appointment as the guardian of the subject child.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the motion and the petition are granted, it is found that Alamgir A. is dependent on the FamilyCourt, and it is found that Alamgir A. is unmarried and under 21 years of age, that reunification with one or both of his parents is not viable due to parental neglect and abandonment, and that it would not be in the best interest of Alamgir A. to return to Bangladesh, his previous country of nationality or last habitual residence, and the matter is remitted to the Family Court, Queens County, for the entry of an appropriate order appointing Mohammed Uddin as the guardian of the subject child.

Alamgir A., a native of Bangladesh, is 20 years old, unmarried, and has lived in the United States with nonrelatives since age 12. He states in an affidavit that when he was in Bangladesh, his parents inflicted excessive corporal punishment upon him and failed to provide him with adequate supervision. Alamgir's parents remain in Bangladesh, and have not communicated with Alamgir in more than seven years.

Alamgir moved from Florida to New York in December 2008, and has lived in Queens with Mohammed Uddin and Uddin's family since March 2009. There is uncontroverted evidence that, since 2009, Uddin has provided Alamgir with a loving home, financial and emotional support, and the ability to pursue educational goals.

Uddin filed a petition dated July 15, 2009, seeking appointment as Alamgir's guardian. Alamgir submitted an affidavit consenting to the appointment and asking for the same relief. Several months later, Alamgir moved for an order making findings that would enable him to apply to the United States Citizenship and Immigration Services (hereinafter the USCIS) for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Both the petition and the motion were unopposed.

In an order dated March 8, 2010, the Family Court denied the motion and the petition, opining that Florida was the proper venue for any guardianship issues,and that Uddin and Alamgir had engaged in forum shopping. It further stated, without analysis, that Uddin had failed to demonstrate extraordinary circumstances justifying a guardianship appointment. We reverse.

Turning to the merits, when considering guardianship appointments, the infant's best interest is paramount ( see SCPA 1707[1]; Matter of Stuart, 280 N.Y. 245, 250, 20 N.E.2d 741; Matter of Trudy-Ann W. v. Joan W., 73 A.D.3d 793, 794, 901 N.Y.S.2d 296; Matter of Amrhein v. Signorelli, 153 A.D.2d 28, 31, 549 N.Y.S.2d 63). The order appealed from, however, is devoid of any references to Alamgir's best interest.

"This Court's power to review the evidence is as broad as that of the hearing court, bearing in mind that in a close case, the factfinder had the advantage of seeing and hearing the witnesses. Further, where, as here, the record is sufficiently complete for us to make our own factual determinations, we may do so" ( Matter of Trudy-Ann W. v. Joan W., 73 A.D.3d at 795, 901 N.Y.S.2d 296 [internal quotation marks and citations omitted] ). Based upon our "independent factual review of the complete record" ( Matter of Steward v. Steward, 25 A.D.3d 714, 715, 807 N.Y.S.2d 313; see Matter of Allen v. Black, 275 A.D.2d 207, 209, 712 N.Y.S.2d 487), which includes, inter alia, two hearing transcripts and an affidavit from Alamgir, it is evident that Alamgir's best interest would be served by the appointment of Uddin as his guardian ( see Matter of Stuart, 280 N.Y. at 250, 20 N.E.2d 741; Matter of Trudy-Ann W. v. Joan W., 73 A.D.3d at 795, 901 N.Y.S.2d 296; cf. Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436...