In re A.W.J., G-14400-19
| Decision Date | 24 October 2019 |
| Docket Number | G-14400-19 |
| Citation | 112 N.Y.S.3d 450,65 Misc.3d 1055 |
| Parties | In the MATTER OF a Proceeding for the appointment of a Guardian of the Person or Permanent Guardian of A.W.J., a person under the age of 21. |
| Court | New York County Court |
The Children's Law Center, 820 Concourse Village West, 5th Fl., Bronx, NY 10451, By: Geoffrey Greenlees, Esq., Attorney for child AWJ
Deborah D. Clegg, Esq., P.O. Box 996, Croton Falls, New York 10519-0996 By: Deborah D. Clegg, Esq., Attorney for petitioner LS
Law Office of Eli R. Rosenbaum, 206 East 163rd Street, Bronx, New York 10451, By: Eli R. Rosenbaum, Esq., Attorney for petitioner KS
The Reimer Law Firm, P.L.L.C., 910 Sheridan Avenue, Bronx, NY 10451, By: Eric Z. Reimer, Esq., Attorney for respondent AW
This proceeding raises the issue of whether the Family Court has the power and obligation to dismiss a guardianship petition for lack of standing and facial insufficiency. This Court concludes that it does have the inherent authority to dismiss guardianship petitions which are facially insufficient and must do so in its role as parens patriae in order to protect the subject child and limit guardianship petitions continued in this Court to those which adequately allege an interest in the welfare of the child (see Humphrey v. Humphrey , 103 Misc. 2d 175, 425 N.Y.S.2d 759 [Family Court, Steuben County 1980] ["The petition must show on its face that the remedy asked for will be for the benefit of the child" and the court will take jurisdiction "when the petition shows patently that the welfare of the child may require it."] ).
The petition in this proceeding alleges next to nothing about the petitioner's relationship with the subject child, and neither petitioner's memorandum of law nor her sworn statements on the record provided a factual basis of a relationship to grant her standing to sustain the petition. Accordingly, the petition is dismissed without a hearing (see Matter of Linda S.M. v. Demetrius W. , 160 A.D.3d 860, 74 N.Y.S.3d 338 [2d Dept. 2018] [] ).
On March 18, 2019, days after the death of the subject child's mother, L.S. filed a petition seeking to be appointed guardian of the subject child, her cousin who came to live with her. Based on the passing of the child's mother, the absence of a father listed on the child's birth certificate, and the expressed wishes of the child through his attorney, this Court issued and has continued a temporary order of guardianship to L.S. so that she could take care of the child's medical, educational and housing needs.
On May 2, 2019, the purported father of the child filed a paternity petition and simultaneously K.S., a friend of the child's mother, filed this petition seeking guardianship of the child. Attached to K.S.'s petition is a letter from the purported father, who is currently incarcerated, supporting "temporary parental rights" for K.S.
K.S.'s petition for guardianship merely states she is the friend of the child's deceased mother and that the reason she should be granted guardianship is that she lives in the same county as the child's maternal half-brother who lives with his father. She provides no other context, details or information about her relationship to the subject child.
On two separate court appearances on June 20, 2019 and July 31, 2019, this Court queried of all counsel and the parties whether K.S. had standing to pursue her petition. During the June 20th appearance, K.S. stated that the child knew her for years but provided vague answers about how many times she had seen or met the child and never stated she had cared for the child on her own. To the contrary, she stated she had only seen the child in the mother's presence on a handful of occasions. Nor did she state any facts showing that she served as a primary caretaker or parent substitute at any point.
During the July 31st appearance, K.S. suggested the deceased mother wanted her to be the child's guardian, which is an assertion that cannot be verified. K.S. also suddenly claimed she had cared for the child on approximately four occasions, perhaps for a matter of weeks, including while the child's mother was in the hospital. That assertion was disputed by L.S. who stated that the child had always lived in the Bronx and had not stayed with K.S. at any time.
All counsel were given an opportunity to submit to the Court affidavits or affirmations on the issue of whether K.S. has standing to pursue her petition and whether it should be dismissed. Counsel for K.S. submitted a memorandum of law contending that K.S. has standing to proceed with her petition. K.S.'s counsel relies on FCA 661 and SCPA 1703 to argue that the black letter law provides no specific limitations as to who has standing to file for guardianship.
The statutes controlling guardianship of a child are intended to allow any appropriate relative, caregiver or other suitable person to petition for permanent guardianship (see FCA 661 ; SCPA 1703 ). Indeed, Surrogate Court Procedure Act § 1703, applicable to Family Court guardianship proceedings through FCA § 661, provides that "[a] petition for appointment as a permanent guardian of an infant or child may be brought by any person on behalf of the infant or child" (emphasis added). However, the plain language of the statute is not and cannot be the entire analysis. Of course, it is strong public policy to protect children and therefore to allow for the widest pool of appropriate potential guardians so that children may have stability and their needs, such as medical and educational needs, may be taken care of by a permanent guardian. In other words, the statute's use of "any person" should be read broadly to encompass not merely biological connection but also the entire diverse array of family and caregiver relationships that exist in humanity.
In 2008, the Legislature amended the pertinent provisions of the Family Court Act and the SCPA (including supplying the "any person" language) in order to provide for permanent guardianship and to harmonize and clarify the various provisions for custody and guardianship. The Legislative history supports a broad but reasonably limited reading of SCPA 1703. For example, in referring to potential guardians covered by the amendments, the Legal Aid Society's memorandum in support of the bill references "relatives and other suitable persons." (Legal Aid Mem in Support, Bill Jacket, L 2008, ch 404). Similarly, the memorandum from the Office of Children and Families references "relatives," "other caregivers," and "other persons who are caring for children" (OCFS Mem in Support, Bill Jacket, L 2008, ch 404). This Court therefore reads a commonsense requirement into the statute simply necessitating a reasonable connection between the petitioner and child, whether through blood, legal relationship or other facts establishing caregiver or suitable person status.
Further guidance may be found in standing requirements utilized in custody proceedings. Notably, although custody and guardianship proceedings may have been viewed as distinct in the past, in amending the various statutes concerning custodians and guardians, the Legislature found that "there is no substantive difference between the rights and responsibilities of a custodian or guardian of a child" (Assembly Mem in Support, Bill Jacket, L 2008, ch 404). Thus, it is appropriate to gain insight from standing holdings in custody cases. Indeed, it is similarly critical in both guardianship and custody matters to ensure that only appropriate people may ask for the legal right to permanently care for a child.
Generally, when a non-parent is seeking the legal right to have custody and control over a child a showing of extraordinary circumstances, including an established relationship, is required. This standing requirement has been applied in both custody and guardianship cases (see Bennett v. Jeffreys , 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] [custody]; see e.g. Matter of Cornell S.J. v. Altemease R.J. , 164 A.D.3d 1184, 1184, 84 N.Y.S.3d 451 [1st Dept. 2018] [...
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