Opinion
No. NA-08446-50/20
11-01-2022
In the Matter of I.M. N.M. J.A.D. D.M. K.D. B.M. Children Alleged to be Abused and/or Neglected by P.D. T.M., Respondents.
Attorney for Petitioner-ACS By: Ian Freeman, Esq. Attorney for Respondent-Mother, Ms. T.M. By: Lisa M. Licata, Esq. Attorney for Respondent Mother, Ms. J.A. The Bronx Defenders By: Jonathan Howe, Esq. Attorney for Respondent Father/PLR, Mr. P.D. By: Craig Marshall, Esq. Attorney for Non-Respondent Father, Mr. E.M. By: Aleza Ross, Esq. Attorney for Subject Child I.M. By: Kevin McAllister, Esq. Attorney for Subject Child N.M. By: Ava G. Gutfriend, Esq. Attorney for Subject Children J.A.D. and K.D. By: Jessica Brown, Esq. Attorney for Subject Child D.M. By: Wendy Claffee, Esq. Attorney for Subject Child B.M. By: Elizabeth Posse, Esq.
Attorney for Petitioner-ACS By: Ian Freeman, Esq.
Attorney for Respondent-Mother, Ms. T.M. By: Lisa M. Licata, Esq.
Attorney for Respondent Mother, Ms. J.A. The Bronx Defenders By: Jonathan Howe, Esq.
Attorney for Respondent Father/PLR, Mr. P.D. By: Craig Marshall, Esq.
Attorney for Non-Respondent Father, Mr. E.M. By: Aleza Ross, Esq.
Attorney for Subject Child I.M. By: Kevin McAllister, Esq.
Attorney for Subject Child N.M. By: Ava G. Gutfriend, Esq.
Attorney for Subject Children J.A.D. and K.D. By: Jessica Brown, Esq.
Attorney for Subject Child D.M. By: Wendy Claffee, Esq.
Attorney for Subject Child B.M. By: Elizabeth Posse, Esq.
Ronna H. Gordon-Galchus, J.
On June 26, 2020, the Administration for Children's Services (hereinafter "ACS") filed an abuse petition against the respondent P.D. (hereinafter "RF") on behalf of the children I.M., N.M., J.A.D., D.M. and K.D. A finding of abuse and neglect was entered against RF on behalf of all those children on August 2, 2022. On August 25, 2022, ACS filed another abuse petition against RF and T.M. (hereinafter "RM"). On August 29, 2022, the attorney for S.C. B.M. and the attorney for S.C. D.M. filed separate applications for DNA testing to be done on RF to determine if he is the biological father of their respective clients. On September 1, 2022, ACS filed a separate application for DNA testing under separate legal grounds but indicated that they fully supported the motions filed by the attorneys for the children. On September 8, 2022, RM filed an application in opposition to the motions filed by the attorneys for the children and ACS. RF filed a response on October 24, 2022, after requesting extensions.
Counsel's Arguments:
Counsel for B.M. argues that pursuant to Social Services Law 111-g, a representative of a child is permitted to file papers to establish paternity. Also cited is Family Court Act 532, which permits the court to order DNA testing on the mother, child and alleged father. They argue that based on the prior court proceedings, it is crucial to determine paternity of the child and that the collection of the DNA sample would not cause unreasonable bodily intrusion or serious physical injury.
Counsel for D.M. cites SSL 111-g as well and argues that S.C. has a right to know the identity of his biological father and the "testing would not have a traumatic effect on him, as the collection does not involve an unreasonable bodily intrusion." (Claffee Motion, p. 3, 17). Counsel for Dallas also cites Matter of Anthony M., 271 A.D.2d 709 (3rd Dept. 2000), in which the Court upheld an order for paternity testing in an abuse proceeding and citing to CPLR 3121(a).
ACS argues that DNA collection should be ordered pursuant to FCA 1038-a, which allows a court to order a respondent to provide nontestimonial evidence upon a finding of probable cause that the evidence is reasonably related to establishing the allegations in the petition. ACS points to the testimony of S.C. I.M. as establishing probable cause, as he testified that he witnessed RF repeatedly sexually assault RM and heard statements from RM and RF claiming D.M. to be their child together. ACS further argues that it can consent to DNA collection from both D.M. and B.M., as the children are remanded to the care and custody of the agency. ACS further argues that it is in the best interests of the children to have their paternity established. They point to the factors enumerated in Anthony M., including the child's interest in knowing the identity of their biological father, whether the identify of others who may be proved to be their father is known or likely to be discovered, their willingness to assume the role of "father", the traumatic effect testing may have on the child and the effect uncertainty may have on the father-child relationship if not ordered.
ACS agrees that it is in the children's best interest to know the identity of their biological father. ACS also argues that they were able to locate the person put forth by RM as the father of D.M. During an interview, that person denied any relationship with RM and barely remembered her. They finally argue that the method of DNA testing would not be traumatic or intrusive to either the children or RF.
RM argues that the paternity of the S.C. is not in dispute. RM stated on the record that Stephen Johnson is the father of S.C. D.M. and Jason Jackson is the father of B.M.. RM refutes the allegations in ACS' motion, suggesting that ACS/NYPD may have interviewed the wrong Stephen Johnson. Furthermore, when RF appeared in Court and was asked his relationship to D.M. and B.M., he responded "they're her children." Finally, RM argues that ACS cannot consent on behalf of S.C. to the DNA testing, as that would intrude upon her rights and that both the law and ACS policy require the agency to attempt to obtain consent of a parent.
Respondent P.D. joins in RM's position and argues that since an abuse and neglect finding was already entered against him, "there is NO reason to order DNA tests nor any reason to hunt for the biological father of the two children." Respondent P.D. also argues that it would be "an incredible abuse of authority and well beyond the scope of the court's power" to permit DNA testing and suggests that permitting such testing would be due to curiosity as to the children's parentage.
Legal Analysis:
Family Court Act 1038-a is clear that "upon the motion of a petitioner or attorney for the child, the court may order a respondent to provide non-testimonial evidence, only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition filed pursuant to this article. Such order may include, but not be limited to, provision for the taking of samples of blood, urine, hair or other materials from the respondent's body in a manner not involving an unreasonable intrusion or risk of serious physical injury to the respondent." In Matter of Abe A., 6 N.Y.2d 288 (1982), the Court held that an order to obtain a blood sample of a suspect may be issued provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a "clear indication" that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable." In In re Anthony M., supra, the Court upheld that the agency had the ability to intervene and request paternity testing where paternity was disputed during a pending abuse matter.
Courts have not found probable cause in cases where the request for nontestimonial evidence was not related to the allegations. In In re Michael WW., 203 A.D.2d 763 (3rd Dept. 1994), the Court upheld the denial of an order seeking to compel the respondent to submit a blood sample for an HIV related test. The Court found that although there were allegations of sexual abuse, whether the respondent may or may not have HIV was not dispositive and would not provide evidence of the abuse. The Court noted that if the S.C. was tested and found to have HIV, perhaps the application could be re-visited, but at the moment, it was not related to the allegations. In Dep't of Soc. Servs. ex rel. Troy C. v. Janice T., 137 A.D.2d 527 (2nd Dept. 1988), the Court denied an order seeking to compel a respondent to submit to AIDS testing after she bit a sheriff while he was attempting to execute a warrant for her arrest. The Court denied the application, arguing there was no evidence the respondent had or was suspected of having AIDS.
The Court did grant a request for nontestimonial evidence in In re Pederson, 187 Misc.2d 486 (Fam. Ct. 2001) when ACS requested an order for the respondents to submit to dental examinations in which dental molds would be made. The agency argued that the child had adult bite marks on their shoulder, and this was a re ipsa loquitur abuse matter, which presumed that the caretakers of the child were responsible.
In Matter of Nassau County Dept. of Social Services v. R.R., 21 Misc.3d 1126 (A) (Fam. Ct. 2008), the Family Court ordered the respondent to submit to a buccal swab specimen for DNA analysis where there were allegations of sexual abuse by the respondent against the subject child. The Court pointed out that "Family Court proceedings do not focus on penal sanctions but are instead directed to the protection of minors. Consequently, any relevant and material evidence may be admitted in any hearing under Family Court Article 10." The Court further held that probable cause existed to believe that DNA evidence was "reasonably related" to the allegations set forth in the petition. Id.
Here, the Court finds that there is probable cause to order RF to submit to DNA testing for the purpose of determining the paternity of both D.M. and B.M.. The Court heard and credited the testimony of I.M. during the 2020 fact-finding against RF and his testimony established that RF repeatedly sexually assaulted RM and that both RM and RF made statements claiming that D.M. was their child together. Thus, this puts D.M. paternity at issue, as there are conflicting statements from the parties as to his paternity. Establishing his paternity is in his best interests, as he will then know who his father is and there will be no uncertainty surrounding the father/child relationship. As to B.M., ACS alluded in their motion and had previously stated on the record that RF may have made statements in another forum about being the father of B.M.. This puts his paternity at issue as well and it is in the best interest of the child for him to know his father. This Court also notes that clarification as to RF's biological relationship with the children will guide this Court in further proceedings under both the 2020 and 2022 abuse dockets. If Respondent P.D. is determined to be the children's father, then he will have certain rights and standing to participate at different hearings. If it is determined otherwise, then the Court will have the ability to enter other orders against him and he will be denied the ability to participate in hearings where he does not have standing. This clarity will be paramount for disposition on the 2020 dockets. Respondent P.D. argument that "there is No blood relationship in controversy" and that counsel's reliance on In re Anthony M is misplaced is not persuasive. As noted in the Court's August 2nd decision, I.M. was credited by this Court as a "fully credible witness" and testified about statements made by Respondent P.D. admitting that D.M. was his son.
Furthermore, Respondent P.D. stopped appearing in Court and failed to abide by Court orders which resulted in contempt sanctions. Respondent P.D. and RM T.M. were brought to court on open warrants issued by this Court. The petition alleges they were arrested together at the West Farms Motel. The S.C. D.M.'s whereabouts were unknown since shortly after the inception of the 2020 abuse/neglect matter was filed. Their blanket denial as to the paternity of the children is not credible. The lies and deceit which have been perpetuated on this Court by Respondents' P.D., J.A. and T.M. are ongoing and their credibility is certainly at issue. It is paramount to establish parentage to further protect the children, and not because "the Court and counsel may be curious."
The Court acknowledges RM's arguments that the agency does not have complete authority to make determinations for her children, as her rights are still intact and there is currently no finding of wrongdoing by RM. However, this Court also notes that the agency has the right to seek overrides of parental consent where a parent refuses to consent and the actions the agency are seeking are in the best interest of the child(ren). This Court also has the authority to order DNA testing, as codified in FCA 418 and FCA 532. Thus, even over the objection of the mother, the Court can and does order DNA testing. Here, as stated above, it is in the best interests of the children to have their paternity established. The Court also notes that given the dynamics of this case, it is possible that RM may be opposing the application of DNA testing to cover up a criminal act by RF. Therefore, the Court is ordering that both S.C. submit to DNA testing over the objection of the mother.
The DNA testing should be done at an approved laboratory in compliance with all regulations and done in the manner least traumatic to both RF and the subject children D.M. and B.M..
WHEREFORE, this Court grants the motions of the attorneys for the children and ACS and orders RF and S.C. D.M. and B.M. to submit to DNA testing forthwith at an approved laboratory and in compliance with all regulations.
This constitutes the decision and order of the Court.