Michael S. v. Sultana R., 5704

• Decision Date: 19 July 2018
• Docket Number: 5705,5704
• Citation: 82 N.Y.S.3d 364,163 A.D.3d 464
• Parties: In re MICHAEL S., Petitioner–Appellant, v. SULTANA R., Respondent–Respondent In re Michael S., Petitioner–Respondent, v. Sultana R., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 464
82 N.Y.S.3d 364

In re MICHAEL S., Petitioner–Appellant,
v.
SULTANA R., Respondent–Respondent

In re Michael S., Petitioner–Respondent,
v.
Sultana R., Respondent–Respondent.

5704
5705

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

ENTERED: JULY 19, 2018

82 N.Y.S.3d 366

Lance Dandridge, Jamaica, for Michael S., appellant/respondent.

Daniel R. Katz, New York, attorney for the child, appellant/respondent.

Sweeny, J.P., Manzanet–Daniels, Gische, Kahn, Oing, JJ.

Order, Family Court, Bronx County (Llinet Rosado, J.), entered on or about December 15, 2015 (December 15 Order), which, to the extent appealed from, granted the motion of the attorney for the child to vacate an order of filiation, same court (Ann Marie Loughlin, S.M.), entered on or about October 24, 2012, declaring petitioner to be the child's father and vacating an acknowledgment of paternity executed by nonparty Jose Antonio C. (JAC); reinstated the Acknowledgment of Paternity; and dismissed petitioner's custody/visitation petition as premature, reversed, on the law and the facts, without costs, the attorney for the child's motion denied, the order of filiation reinstated, the acknowledgment of paternity vacated, and the custody and visitation petition reinstated. Order, same court (Sidney Gribetz, J.), entered on or about March 17, 2016 (March 17 Order), which denied the attorney for the child's motion to vacate the court's prior order, entered on or about June 18, 2012, finding, after a hearing, that equitable estoppel did not preclude DNA testing in the paternity proceeding, affirmed, without costs.

I. Factual and Procedural Background

This appeal involves a complex series of proceedings in Family Courts located in two counties before multiple judges, support magistrates and referees over a period of nearly eight years. Accordingly, a review of the factual and procedural history of the proceedings is required in order to place the legal questions presented in proper context.

Petitioner and respondent were intimately involved from approximately July 2007 until August 2008 while both were

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residing in Pennsylvania, during which time respondent became pregnant with the subject child, G. During the pregnancy, petitioner and respondent separated.

Another man, JAC, with whom respondent had been intimately involved prior to the commencement of his incarceration on February 6, 2006 and who is the father of respondent's two older daughters, renewed an intimate relationship with respondent upon his release from prison on July 11, 2008. On October 10, 2008, G. was born. The following day, October 11, 2008, JAC and respondent executed an acknowledgment of paternity naming JAC as G.'s father.

Petitioner, having been convicted of possession of heroin with intent to sell in Pennsylvania, had been sentenced to serve a term of incarceration in a Pennsylvania correctional facility but had obtained the permission of the Pennsylvania court to postpone his surrender date to enable him to be present for the birth of his child. He then came to New York on October 9, 2008, and on the following day, spoke with respondent's mother, who told him that his daughter had been born that day in the Bronx, but did not specify the name or location of the hospital in which the birth had taken place.

In November 2008, petitioner began to serve his sentence in a Pennsylvania correctional facility. Sometime prior to July 27, 2011, petitioner was released from custody.

On July 12, 2010, petitioner, while still incarcerated in Pennsylvania, filed the instant paternity petition in Family Court, Queens County. The proceeding was subsequently transferred to Family Court, Bronx County.

On October 8, 2010, respondent filed a family offense petition in Family Court, Bronx County against petitioner. According to the March 17 order, the petition alleged actions taken by petitioner and his family members during the time he was incarcerated. The court issued a temporary order of protection against petitioner and transferred the matter to the Honorable Alma Cordova.

On November 22, 2010, the instant paternity proceeding was heard for the first time in Family Court, Bronx County, before Family Court Support Magistrate Mary Neggie. Thereafter, the proceeding was transferred to Family Court Support Magistrate Ann Marie Loughlin (the SM). For reasons not ascertainable from the record, the proceeding was subsequently adjourned multiple times.

On March 29, 2011, a court appearance took place in the instant proceeding before the SM. Petitioner appeared by telephone but respondent did not appear. The appearance was adjourned to May 27, 2011, with the SM stating on the record that respondent's failure to appear would result in a warrant for her arrest.

According to both Judge Rosado's December 15 order and Judge Gribetz's March 17 order, on May 27, 2011, both petitioner and respondent appeared before the SM. During that appearance, respondent conceded before the SM that petitioner is G.'s biological father, but also asserted that G. has only known JAC to be her father.¹ According to the December 15 Order, the SM listed JAC as an "interested party" in the paternity proceeding.

On May 31, 2011, the SM assigned counsel to act as the attorney for the child (AFC).

82 N.Y.S.3d 368

On July 19, 2011, at a court appearance before the SM at which the AFC and respondent appeared in person and petitioner appeared by telephone, the AFC reported that G. was "very closely attached to her two sisters and to her father," whom G. believed was JAC. The AFC further asserted that she would oppose any DNA testing of petitioner and G.

During the July 19, 2011 appearance, the SM stated that issues had been raised in the paternity proceeding as to whether petitioner was estopped from any further pursuit of that proceeding and whether DNA testing could proceed. The SM, apparently referring to her own lack of authority to determine those issues, opined that they would have to be referred to a judge for determination.

At that same appearance, petitioner stated that respondent had been keeping G. away from him for years, and that he had sent money orders to respondent's mother which he had intended to be used for the financial support of G., but that respondent had returned the money orders to him. He further stated that he "actually kn[e]w" that G. was his child. At the conclusion of the July 19, 2011 appearance, the SM adjourned the proceeding to July 27, 2011, with the understanding that petitioner would be able to appear personally on that date. She further directed respondent to produce G.'s birth certificate on the adjourned date.

On July 27, 2011, at a court appearance before the SM at which the AFC, petitioner, his counsel, and respondent (without counsel) appeared in person, the AFC argued that petitioner should be estopped from asserting paternity. The SM again stated that she had no authority to determine that issue and referred the estoppel issue to the Honorable Sidney Gribetz for determination. Upon such referral, the court assigned counsel to represent respondent and adjourned the proceeding to September 21, 2011.

On September 21, 2011, JAC appeared before Judge Gribetz, who assigned counsel to JAC "upon consideration that [he] would be a necessary party." JAC's assigned counsel accepted service of the paternity petition in court. The proceeding was adjourned to December 5, 2011 for an estoppel hearing.

On December 5, 2011, petitioner and respondent appeared in person before Judge Gribetz, with their respective counsel. The AFC also appeared in person, and counsel for JAC appeared by telephone. Petitioner's counsel successfully moved to be replaced by petitioner's assigned counsel in the family offense proceeding. The estoppel hearing was adjourned to February 28, 2012 to accommodate new counsel.

On January 27, 2012, the family offense proceeding continued before the Honorable Alma Cordova. Based upon findings that petitioner was guilty of committing attempted assault, harassment, and disorderly conduct, the court issued a two-year order of protection against petitioner.

On February 28, 2012, the AFC appeared before Judge Gribetz in the instant paternity proceeding. Counsels for petitioner, respondent and JAC also appeared, without their respective clients. At this appearance, counsel for JAC referred to his client as an "interested party." Counsel for respondent stated that his client had moved to Florida and requested that she be permitted to participate in the proceedings by telephone. Counsel for JAC joined in that application on behalf of his client, noting that JAC had also moved to Florida to live with respondent, and stating that he had spoken to JAC and that he, too, wished to participate by telephone. Petitioner's new counsel, appearing for the

82 N.Y.S.3d 369

first time in this proceeding and noting that he had not received a copy of the petition, objected to the requests for telephonic participation and requested that respondent appear in person in order to be available for cross-examination before the court. The court granted petitioner's...