Joseph S. v. Crystal B., Docket No. P-03511-17

CourtNew York County Court
Writing for the CourtAlma M. Gómez, J.
Citation152 N.Y.S.3d 288 (Table),73 Misc.3d 1201 (A)
Parties In the Matter of a Paternity Proceeding Under Article 5 of the Family Court Act, JOSEPH S., Petitioner, v. CRYSTAL B. and Leroy R., Respondents.
Decision Date19 August 2021
Docket NumberDocket No. P-03511-17

73 Misc.3d 1201 (A)
152 N.Y.S.3d 288 (Table)

In the Matter of a Paternity Proceeding Under Article 5 of the Family Court Act, JOSEPH S., Petitioner,
v.
CRYSTAL B. and Leroy R., Respondents.

Docket No. P-03511-17

Family Court, New York, New York County.

Decided on August 19, 2021


Wendy J. Claffee, Bronx, for petitioner.

Michael S. Griefinger, Bronx, for respondent.

Bronx Defenders (Mary Anne Mendenhall, of counsel) for respondent.

Goetz Vilsaint, Bronx, attorney for the child.

Alma M. Gómez, J.

The primary issue in this case is who should be the legally recognized father of the subject child, Jocelyn R. (Jocelyn). Two persons claim to be her father, petitioner Joseph S. (Mr. S. or petitioner) and respondent Leroy R. (Mr. R. or respondent) who is the presumed legal father. In this proceeding arising out of an Article 5 paternity petition, the Court considers the application of the presumption of paternity and paternity by estoppel which were invoked by Mr. R. to prevent Mr. S. from belatedly asserting a claim to paternity.

Petitioner seeks to establish his paternity of the subject child Jocelyn, who was born on XX/XX/07 during respondent's marriage to Jocelyn's mother, Crystal B. (Ms. B. or respondent mother). Relying upon his intact marriage to Ms. B. at the time that Jocelyn was born as establishing a presumption of paternity, and on his assumption of parental responsibilities as implicating equitable estoppel, Mr. R. seeks the dismissal of Mr. S.'s paternity petition.

When Mr. S. filed his paternity petition in February 2017, respondent mother initially opposed his application, arguing that Jocelyn had an intact father-child relationship with Mr. R. At that time, they lived as a family unit until the children, including Jocelyn, were placed into kinship foster care with two of Mr. R's adult children. She has since changed her position and supports Mr. S.'s application for a genetic marker test or DNA test. The attorney for the child also argued when the petition was filed that declaring Mr. S. to be Jocelyn's father was not in her best interests. However, in his written summation, he asked the Court to grant Mr. S.'s application and permit him to undergo genetic marker testing.

At one point, Ms. B. was willing to consent to the issuance of an order of filiation to Mr. S. However, Mr. R. did not consent to the order, and argued that the presumption of legitimacy and the doctrine of equitable estoppel prevented both genetic testing and an order of filiation. Thereafter, a lengthy hearing was held on whether the presumption of paternity barred Mr. S.'s paternity petition or whether petitioner was equitably estopped from any further pursuit of his petition. Unfortunately, delays in addressing Mr. S.'s paternity petition due to the COVID—19 pandemic deferred a speedier resolution of his petition and Mr. R's application.

The attorney for the child, as well, requested that the Court interview Jocelyn, in-camera, about her preferences. Counsel for the parties did not object to the in-camera interview. The first in-camera interview scheduled for March 19, 2020 was cancelled. Questions from the parties' attorneys were collected and asked during the in-camera hearing held on April 14, 2021. The child's attorney was present during the interview; the parties and their respective attorneys were not. A verbatim record of the interview has been transcribed.

Now, based on the evidence adduced at the hearing, including the credibility of all witnesses, the legal arguments made by the parties, and the applicable case law, the Court concludes that the interests of justice, and the best interests of Jocelyn in this matter, will be served by granting Mr. S.'s paternity petition to the extent of ordering genetic marker or DNA testing,1 and denying Mr. R.' effort to equitably estop him from asserting paternity.

EQUITABLE ESTOPPEL HEARING

The paternity petition was filed by Mr. S. on February 7, 2017, a month after Jocelyn and her seven siblings were remanded to the care and custody of the Administration for Children's Services (ACS) in a neglect and abuse proceeding filed under Article 10 of the Family Court Act (FCA).2 Jocelyn's siblings include Jaheim B.(DOB: XX/XX/04), Jaquell R. (DOB: XX/XX /06), Justin R. (DOB: XX/XX/10), Jacob R. (DOB: XX/XX/14) and a set of infant twins, Jayden B. (DOB: XX/XX/16) and Jayda B. (DOB XX/XX/16).3 The children entered foster care due to allegations of inadequate guardianship, lack of food, clothing and shelter, and malnutrition or failure to thrive. There also was an allegation of medical negligence due to one of the children's asthma. Initially, the permanency goal was to return the children to their parents. However, the permanency goal was changed to Kinship Guardianship (KinGAP) in 2018.4 At this time, the six older children, including Jocelyn, wish to remain with their kinship foster parents, both of whom are the adult children of Mr. R.

Mr. S. sought an order of filiation or DNA testing to establish his paternity of Jocelyn. Mr. R. opposed the petition and argued that Mr. S. was equitably estopped from continuing his paternity petition and proceeding with DNA testing. The equitable estoppel hearing commenced on July 5, 2017, and continued on November 29, 2017, December 6, 2017, May 1, 2018, June 25, 2018, November 25, 2019, and March 29, 2019. This Court heard testimony from Mr. S., Mr. R., Ms. B., Jocelyn's biological mother and co-respondent, and Lee Tyrone B. (Mr. B.), Jocelyn's half-brother and current foster parent. Entered into evidence were the marriage certificate of Mr. R. and Ms. B., as Respondent's exhibit A, and several photos reflecting the relationship and contact between Mr. S. and Jocelyn throughout the years, and also with Mr. S.'s father, as Petitioner's exhibit 1. The Court, as well, conducted an in-camera interview Jocelyn on April 14, 2021. Written summations from the parties were received on June 25, 2021.

In her written summation, counsel for Mr. S. conceded that Mr. B. resided in the home with Jocelyn until she was removed and placed into kinship foster care. Nonetheless, she argued that petitioner had established a significant relationship with Jocelyn, and that it was in her best interests to permit genetic marker testing. The attorney for Mr. B. argued that Jocelyn recognizes him as her father, that he has been the child's primary caregiver, and that it would be "detrimental to the child's interests to disrupt [his] close relationship" with Jocelyn (Matter of Fidel A. v Sharon N., 71 AD3d 437, 437 [1st Dept 2010] ). His attorney also asserts that Mr. S. failed to promptly assert his paternity rights. The first witness to testify was Mr. R. Thereafter, Ms. B., Jocelyn's foster parent and petitioner testified. Shortly after testifying, Mr. R. moved to Alabama, where he remains.

On July 5, 2017, Mr. R. testified that he was 51 years of age, and he has been married to Ms. B. for approximately 11 years. He has a total of 14 children; he has eight children with Ms. B., and Jocelyn was his third child with her. At the time of his testimony, Jocelyn was nine years old.

According to Mr. R., when Ms. B. became pregnant with Jocelyn, they were living together in Staten Island. Additionally, Mr. R.’s testified that he was present at the hospital when Jocelyn was born, and it is his name on Jocelyn's birth certificate. Mr. R. also testified that he brought his wife and Jocelyn home from the hospital.

He described Jocelyn as being a happy baby. Jocelyn slept in a crib next to the couple's bed, and he took on the role of feeding and caring for her. He testified that her first words were "Daddy." When questioned about what made Jocelyn happy, Mr. R. testified that coloring books and books make her happy. He further testified that Jocelyn is very smart, and she began reading when she was three or four years old. She loves going to school, and cries when he keeps her home if she is sick. He added that Jocelyn is "good" in reading and math. Jocelyn also loves her gym class, playing ball, and drawing. He further testified that Jocelyn loves her brothers and sisters, and likes being the "boss" or older sister. Jocelyn helped with household tasks, such as cooking and cleaning the kitchen. He went on to describe her as loving to eat "country stuff" like "chicken and gravy." He has a close bond with Jocelyn, and even taught her about electricity and mechanics. On Sundays, the family attends church services, and afterwards, the family goes to eat in a restaurant. He noted that Jocelyn enjoys singing gospel songs. Furthermore, he is very proud of his children, and is especially proud of the way that Jocelyn dresses. He stated that Jocelyn always wanted to be a princess, and she dresses up to reflect that image.

When questioned about Mr. S., respondent remembered that when Jocelyn was three years old, another paternity petition was filed by petitioner in Richmond County Family Court. However, he thought the case was dismissed when Mr. S. failed to appear. Since Jocelyn has been in foster care, the child continues to tell him that she misses him. He also admitted that Jocelyn is frustrated with him because he was "taking too long to get myself together." Because of his diabetes, he lost his toes, and then his two feet, and has been confined to a wheelchair. Mr. R. further admitted that he knew Mr. S. visited with Jocelyn.

Mr. R. testified that when Jocelyn was seven years old, Ms. B. informed him that he was not Jocelyn's...

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