In the Matter of Trudy–ann W. (anonymous) v. (anonymous)

• Decision Date: 04 May 2010
• Citation: 73 A.D.3d 793,2010 N.Y. Slip Op. 03946,901 N.Y.S.2d 296
• Parties: In the Matter of TRUDY–ANN W. (Anonymous), appellant,v.JOAN W. (Anonymous), et al., respondents.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 793

901 N.Y.S.2d 296

2010 N.Y. Slip Op. 03946

In the Matter of TRUDY–ANN W. (Anonymous), appellant,

v.JOAN W. (Anonymous), et al., respondents.

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

May 4, 2010.

Milbank, Tweed, Hadley & McCloy, LLP, New York, N.Y. (Robert L. Lindholm, Stacey J. Rappaport, and Thomas H. Santoro of counsel), for appellant.WILLIAM F. MASTRO, J.P., HOWARD MILLER, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.

In a proceeding pursuant to Family Court Act article 6 for the appointment of the maternal aunt of the petitioner, a person under 21 years of age, as her guardian, the petitioner, Trudy–Ann W., appeals from (1) an order of the Family Court, Kings County (Kennedy, J.), dated March 4, 2010, which, after a hearing, denied the petition and dismissed the proceeding, and (2) an order of the same court, also dated March 4, 2010, which, after a hearing, denied her motion for the issuance of an order declaring that she is dependent on the Family Court and making specific findings that she is unmarried and under 21 years of age, that reunification with one or both of her parents is not viable due to parental abuse, neglect, or abandonment, and that it would not be in her best interest to be returned to her previous country of nationality or last habitual residence, so as to enable her to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).

ORDERED that the orders are reversed, on the law and the facts, without costs or disbursements, the petition and the motion are granted, Alcie S., the maternal aunt of Trudy–Ann W., is appointed as the guardian of Trudy–Ann W., it is declared that Trudy–Ann W. is dependent on the Family Court, and it is found that Trudy–Ann W. is unmarried and under 21 years of age, that reunification with one or both of her parents is not viable due to parental abuse, neglect, and abandonment, and that it would not be in the best interest of Trudy–Ann W. to return to Jamaica, West Indies, her previous country of nationality and last habitual residence.

Trudy–Ann W., a native of Jamaica, West Indies, is 20 years old, unmarried, and has lived in the United States with her maternal aunt, Alcie S., since 2007. Trudy–Ann's father, whose whereabouts are unknown, abandoned her at birth, while her mother, who continues to reside in Jamaica, neglected and abused her by inflicting excessive corporal punishment and failing to supply her with adequate food and supervision. Trudy–Ann left her mother's home at age 16. There is uncontroverted evidence that, since 2007, Alcie S. has provided Trudy–Ann with a loving home, financial and emotional support, and the ability to pursue educational goals.

Previously, Family Court Act § 661 was deemed applicable only to individuals under 18 years of age ( see Matter of Vanessa D., 51 A.D.3d 790, 858 N.Y.S.2d 687; Matter of Luis A.-S., 33 A.D.3d 793, 823 N.Y.S.2d 198). Pursuant to a 2008 amendment, however, Family Court Act § 661(a) now explicitly authorizes the appointment of a guardian for a person “who is less than twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen.” Accordingly, in January 2010, Trudy–Ann sought the appointment of Alcie S. as her guardian. Both Alcie S. and Trudy–Ann's mother consented to the appointment. In an order dated March 4, 2010, the Family Court nevertheless denied the petition and dismissed the proceeding on the ground that Trudy–Ann had failed to establish a basis for the relief requested. In a separate order, also dated March 4, 2010, the Family Court denied Trudy–Ann's motion for the issuance of an order making a declaration and specific findings that would enable her to apply to the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). We reverse both orders.

Under the circumstances of this case, we find that the Family Court's determination of the guardianship petition lacked a sound and substantial basis in the record ( see Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; cf. Matter of Pleasant Edward G., 299 A.D.2d 358, 358–359, 749 N.Y.S.2d 176). Since Trudy–Ann is under 21 years of age, she is an infant for purposes of this guardianship proceeding ( see Family Ct. Act § 661[a] ). 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 Amrhein v. Signorelli, 153 A.D.2d 28, 31, 549 N.Y.S.2d 63; see also Matter of Tiffany Nicole L., 287 A.D.2d 717, 718, 732 N.Y.S.2d 348). The order denying the guardianship petition and dismissing the proceeding, however, is devoid of any references to Trudy–Ann'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 ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). Further, where, as here, the “record is sufficiently complete to make our own factual determinations” ( Matter of Lillian R., 196 A.D.2d 503, 504, 600 N.Y.S.2d 756), we may do so. 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...