Opinion
2021-06615 V-00583-19
11-24-2021
In the Matter of Casey J. Cardona, appellant, v. Tiara M. McNeill, respondent.
Carol L. Kahn, New York, NY, for appellant. Christian P. Myrill, Jamaica, NY, for respondent. Karen P. Simmons, Brooklyn, NY (Rachel J. Stanton and Janet Neustaetter of counsel), attorney for the child.
Carol L. Kahn, New York, NY, for appellant.
Christian P. Myrill, Jamaica, NY, for respondent.
Karen P. Simmons, Brooklyn, NY (Rachel J. Stanton and Janet Neustaetter of counsel), attorney for the child.
WILLIAM F. MASTRO, J.P., VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated November 19, 2020. The order, without a hearing, dismissed the father's petition for parental access without prejudice.
ORDERED that the order is affirmed, without costs or disbursements.
The parties, who were never married, are the parents of a daughter born in 2010. In an order dated April 2, 2019, entered upon the father's default, sole custody of the child was awarded to the mother. On June 27, 2019, the father filed a petition for parental access. Over the next 16 months, the Supreme Court repeatedly directed the father to cooperate with an Administration for Children's Services' (hereinafter ACS) home inspection and to submit to a drug test, but the father failed to comply. On November 19, 2020, on the record, the court dismissed the father's petition, without prejudice, stating that the father could re-file when he was ready to cooperate with the ACS investigation and the order to be drug tested. In a written order of the same date, the court dismissed the petition, without prejudice, "due to failure to state cause of action." The father appeals.
Although the written order states that the Supreme Court dismissed the petition, without prejudice, for failure to state a cause of action, an order must conform strictly to the underlying decision, and where an order is inconsistent with the underlying decision, the decision controls (see Valensi v Park Ave. Operating Co., LLC, 169 A.D.3d 960, 962; Matter of Schwarzenberger, 116 A.D.3d 868, 869-870; Matter of Testa v Strickland, 99 A.D.3d 917, 917). In its decision on the record, the court expressly dismissed the petition, without prejudice, due to the father's repeated and lengthy failure to comply with court directives to submit to a home inspection and a drug test.
Under the circumstances of this case, the Supreme Court providently exercised its discretion in dismissing the father's petition, without prejudice to him re-filing when he was prepared to cooperate with court directives. Parental access determinations should "[g]enerally be made only after a full and plenary hearing and inquiry" (S.L. v J.R., 27 N.Y.3d 558, 563 [internal quotation marks omitted]; see Matter of Vazquez v Bahr, 193 A.D.3d 946, 947). "While the general right to a hearing in [parental access] cases is not absolute, where 'facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,' a hearing is required" (Palazzola v Palazzola, 188 A.D.3d 1081, 1082, quoting S.L. v J.R., 27 N.Y.3d at 564). Here, however, the court did not purport to determine contested factual issues material to the best interests analysis, or make a final determination on the merits of the father's parental access petition (cf. Matter of Guy v Weichel, 173 A.D.3d 1028, 1030; Matter of Williams v Jenkins, 167 A.D.3d 758, 760; Matter of Noel v Melle, 151 A.D.3d 1065, 1066). Rather, the father's noncompliance with court directives prevented the matter from proceeding to a best interests hearing. Contrary to the father's contention, a hearing was not necessary before the court could determine that the father was noncompliant with court directives.
Contrary to the father's contention, there is no evidence of any bias on the part of the Supreme Court in connection with its dismissal, without prejudice, of the father's petition (see Matter of Yehudah v Yehudah, 144 A.D.3d 1046, 1047).
In light of our determination, we need not address the alternative basis for affirmance advanced by the mother and the attorney for the child.
MASTRO, J.P., BRATHWAITE NELSON, GENOVESI and DOWLING, JJ., concur.