Opinion
Docket No. G-08487-21
03-17-2023
In the Matter of the Proceeding for the Appointment of a Guardian of the Person of R.D.R. A Minor.
Unpublished Opinion
Caroline P. Cohen, J.
Upon the forgoing papers and for the reasons set forth below, the Court grants C.M. Jr. (hereinafter referred to as "Mr. M.") guardianship over the Subject Child R.D.R. (hereinafter referred to as "the Subject Child").
Procedural and Factual History:
The Subject Child was born to Respondent Father S.H. (hereinafter referred to as "Respondent Father") and Respondent Mother A.D.R.A (hereinafter referred to as "Respondent Mother") on XXX XX, 2002 in Grenada.
Respondent Mother immigrated from Grenada to the United States in or about 2014. See Transcript, October 20, 2022, p. 21. The Subject Child immigrated from Grenada in 2015 with her sister and stepfather K.A. (hereinafter referred to as "Stepfather"). See Id. Shortly after arriving in the United States, the Subject Child, her sister, Respondent Mother and Stepfather moved into an apartment in a family shelter (hereinafter referred to as "the apartment"). See Transcript, October 20, 2022, p. 22.
The Subject Child met Mr. M. through the Boys and Girls Club in either 2018 or 2020. See Transcript, October 20, 2022, p. 7.
The Subject Child moved out of the apartment in late 2020. See Transcript, October 20, 2022, p. 10. The Subject Child currently resides in a youth shelter in the Coney Island section of Brooklyn, NY. See Transcript, October 20, 2022, p. 7. Respondent Mother currently resides in an unidentified location separate from the Subject Child. See Id.; Transcript, January 4, 2023, p. 63.
The Petition for Guardianship of the Person (hereinafter referred to as the "Petition") was filed on behalf of the Subject Child in or about July 2021. The Petition sought for Mr. M. to be named as the Subject Child's guardian, and alleged that Respondent Mother and Stepfather neglected the Subject Child and "kicked her out of the home," and Respondent Father abandoned and neglected the Subject Child. See Petition, July 28, 2021, p. 4.
The Subject Child's counsel served Respondent Father with all required documents. Thereafter, Respondent Father signed, notarized, and returned an affidavit stating that he waived appearing at and receiving further notice of future proceedings, and consented to Mr. M. being the Subject Child's guardian. See Waiver, November 21, 2021.
Respondent Mother did not consent to Mr. M. being named as the Subject Child's guardian and opposed the petition.
Trial:
Parties and counsel conducted a full evidentiary trial on October 20, 2022, January 4, 2023 and January 5, 2023. At trial, the Subject Child's counsel argued that the extraordinary circumstances analysis does not apply because of the age of the Subject Child. In the alternative, counsel argued that extraordinary circumstances are present, as Respondent Mother abandoned the Subject Child. The Subject Child's counsel further argued that appointing Mr. M. as guardian is in the Subject Child's best interests.
The Subject Child testified that before 2015, she a had a "good" relationship with Respondent Mother, implying that the two had a poor relationship thereafter. See Transcript, October 20, 2022, p. 21. While the relationship may have been strained, the Subject Child and Respondent Mother both credibly testified regarding the emotional, educational, and financial support that Respondent Mother provided the Subject Child with through November 2020. For instance, the Subject Child stated that Respondent Mother "tried" to support her academically and would encourage and reassure her regarding her grades. See Transcript, October 20, 2022, p. 28. The Subject Child further testified that Respondent Mother supported her taking classes to prepare for the SAT. See Transcript, October 20, 2022, p. 29. Additionally, Respondent Mother testified that she assisted the Subject Child complete her New York State Tuition Assistance Program application for grants for college. See Transcript, January 4, 2023, p. 33. Furthermore, Respondent Mother testified that she financially provided for the Subject Child financially when she lived with her. See Transcript, January 4, 2023, pp. 42-43. Respondent Mother also credibly testified regarding the special body soap and detergent that she purchased for the Subject Child because of her sensitive skin. See Transcript, January 4, 2023, p. 41.
Respondent Mother testified that her relationship with the Subject Child soured when she encouraged her to attend local community college rather than a four-year college, as she could not afford to pay for the same. See Transcript, January 4, 2023, pp. 34-36. At this time, Respondent Mother also required the Subject Child to watch her younger siblings while Respondent Mother was taking GED classes in the evening three times a week. This prohibited the Subject Child from attending certain extracurricular activities. See Transcript, January 4, 2023, pp. 38-40.
After the disagreement between the Subject Child and Respondent Mother regarding the Subject Child's plans for college, the Subject Child alleged that her mother failed to treat a supposed eczema "flare." See Transcript, October 20, 2022, p. 11. Respondent Mother testified that the Subject Child was successfully treated by over-the-counter medication and denied that the Subject Child has eczema. See Transcript, January 4, 2023, p. 41. Regardless, the Subject Child testified that the "tension" between her and Respondent Mother further increased after this incident. See Transcript, October 20, 2022, pp. 16, 26-28. Because of the Subject Child's strained relations with Respondent Mother, the Subject Child started attending the Boys and Girls Club. See Transcript, October 20, 2022, p. 27.
The Subject Child further testified that she, Respondent Mother and shelter staff met together after shelter staff learned that the Subject Child "was going to be kicked out" by Respondent Mother. See Transcript, October 20, 2022, p. 16. Respondent Mother allegedly did not participate in any measures proposed by shelter staff to resolve the issues between the parties. See Transcript, October 20, 2022, p. 19. The Subject Child testified that in November 2020, Respondent Mother "kicked [her] out" of the apartment. See Transcript, October 20, 2022, p. 15. Since November 2020, the Subject Child resided in youth shelters and has had no contact of any kind with Respondent Mother. See Transcript, October 20, 2022, pp. 19-20.
Respondent Mother also testified about the circumstances surrounding the Subject Child vacating the apartment. Respondent Mother stated that the Subject Child stopped speaking to her completely after she opened a piece of her mail. See Transcript, January 4, 2023, p. 47. Respondent Mother stated that she informed the shelter's management that she and the Subject Child were not getting along, and shelter management scheduled a meeting between the parties and a shelter representative. See Transcript, January 4, 2023, pp. 48-49. During the meeting, the Subject Child "refused to apologize" to Respondent Mother for not speaking to her. See Transcript, January 4, 2023, p. 51. Respondent Mother alleged that the Subject Child was eventually removed from the apartment by shelter management because the Subject Child refused to apologize to her. See Transcript, January 4, 2023, pp. 51-54. The Subject Child and Respondent Mother had a verbal altercation on the day the Subject Child vacated the apartment. See Transcript, January 4, 2023, p. 55. The Subject Child allegedly stated to Respondent Mother, "you're going to throw me out, you're wicked," to which Respondent Mother replied, "it was your choice, you refused to apologize, so this is your calling not me." See Id. The Subject Child was removed from the apartment by shelter management immediately following this incident. See Transcript, January 4, 2023, p. 54.
Respondent Mother has not seen the Subject Child, contacted the Subject Child through any medium, or financially supported the Subject Child since 2020. See Transcript, October 20, 2022, p. 33; Transcript, January 4, 2023, p. 58. Respondent Mother testified that at the time of trial, she was in the process of moving and did not have space to accommodate the Subject Child live with her. See Transcript, January 4, 2023, p. 63. Respondent Mother stated that she did not want to provide the Subject Child with her new address. When asked whether she wanted the Subject Child to know her new address, she responded "[w]ell, I don't know where [the Subject Child] lives." See Id. Furthermore, Respondent Mother stated that she changed her telephone number since she last spoke with the Subject Child, as does not know if the Subject Child has her new telephone number. See Transcript, January 4, 2023, p. 65.
The Subject Child does not have a relationship with Respondent Father or Stepfather. The Subject Child stated that she does not have a relationship with her Stepfather. See Transcript, October 20, 2022, p. 22-23. The Subject Child further testified that her Stepfather physically disciplined her approximately twice a month using his hands or belt. See Transcript, October 20, 2022, pp. 23-24. Respondent Mother denied these allegations. See Transcript, January 4, 2023, p. 45.
Respondent Mother testified that the Subject Child's birth certificate does not identify a father. See Transcript, October 22, 2023, p. 22; Transcript, January 4, 2023, pp. 25-26. Counsel for the mother alleged that Respondent Father was not actually the Subject Child's biological father, but ultimately did not pursue the legal implications of this allegation. See Transcript, January 4, 2023, pp. 26-31.
Mr. M. and the Subject Child met in either 2018 or 2020 through the Boys and Girls Club, where he assisted her in applying for scholarships to college. See Transcript, October 20, 2022, p. 7; Transcript, January 4, 2023, p. 10. The Subject Child describes Mr. M. as a mentor, and that the two built a relationship that continues to grow even after the Subject Child stopped attending the Boys and Girls Club. See Transcript, October 20, 2022, p. 7; Transcript, January 4, 2023, pp. 12-13. Mr. M. testified that he wants to be the Subject Child's guardian because the Subject Child felt "alone" and that she "didn't have anybody." See Transcript, January 4, 2023, p. 14. Similarly, the Subject Child testified that Mr. M. "care[s] for" her as she is "on her own." See Transcript, October 20, 2022, p. 10. The Subject Child also credibly testified that Mr. M. is the only adult in the United States that she can confide in and rely on. See Transcript, October 20, 2022, p. 9. To this end, the Subject Child named Mr. M. as her emergency contact on her New York City Identification Card. See Id.
The Subject Child and Mr. M. both specifically and credibly testified that Mr. M. provides her with financial guidance, academic support, and emotional support. See Transcript, October 20, 2022, pp. 7-9. Mr. M. also specifically testified that he wants to help the Subject Child "take advantage of all the opportunities that are available to [her] here." See Transcript, January 4, 2023, p. 15. Mr. M. testified that he speaks to the Subject Child once or twice a week. See Transcript, January 4, 2023, pp. 12-13, 16, 18.
Legal Analysis:
Under federal law, a person is able to become a lawful and permanent resident of the United States without first obtaining a visa if the person is granted special immigrant juvenile status (hereinafter referred to as "SIJS"). See 8 USCS § 1255, Sing W.C. v Sing Y.C., 83 A.D.3d 84, 86 (NY App. Div 2d 2011), citing Riley v Gantner, 2003 U.S. Dist. LEXIS 22929 (S.D.NY 2003).
To obtain SIJS status, the must party be under 21 and a dependent upon a juvenile court or under the care of a state agency, individual or entity appointed by a state court. See Sing W.C., 83 A.D.3d at 86. The appointment of a guardian to the party satisfies the requirement that the party is "dependent" on a juvenile court. See Id.
Additional determinations must also be made by a court that are separate from findings made in a petition for custody or guardianship of the Subject Child. Typically, such additional findings are made after a motion is filed on behalf of the Subject Child seeking SIJS status. More specifically, the court must find the Subject Child is unmarried, cannot be reunified with one or both parents because of "parental abuse, neglect, abandonment, or similar parental conduct" as defined by state law and that returning to the Subject Child's "native" country is not in the Subject Child's best interests. See Sing W.C., 83 A.D.3d at 87.
Section 661 (a) of the New York State Family Court Act (hereinafter referred to as "FCA") permits individuals through the age of 21 be appointed a guardian specifically to facilitate that individual achieve SIJS status. See Family Court Act § 661 (a), Sing W.C., 83 A.D.3d at 90 - 91. When hearing petitions for guardianship brought under FCA § 661 (a), other provisions of the FCA and related statutes must also be read as defining "children" as individuals through age 21. See Sing W.C., 83 A.D.3d at 90 91. This includes other provisions of the FCA and the Social Services Law, which define "children" as individuals through age 18. See Sing W.C., 83 A.D.3d at 90 - 91, see e.g. Social Services Law § 371 (1), Family Court Act § 119 (c).
A non-parent can be appointed as guardian regardless if one or both of the subject child's parents are alive if there are "extraordinary circumstances" present. The New York State Court of Appeals articulated the seminal extraordinary circumstances test in Bennett v Jeffreys. See Matter of Bennett v Jeffreys, 40 N.Y.2d 543 at 543 (NY Ct App, 1976). In Bennett, the Court of Appeals held that a non-parent petitioning for custody must satisfy a two-prong inquiry, the first prong requiring that the non-parent must show that there are extraordinary circumstances present which render the parent unable or unwilling to care for the subject child. See Bennett, 40 N.Y.2d 543 at 549. Such extraordinary circumstances include "surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child." Id. After the extraordinary circumstances are established, the non-parent must demonstrate that it is in the subject child's best interest for the petitioner to have custody. See Bennett, 40 N.Y.2d at 551-552. The extraordinary circumstances test applies equally to guardianship petitions and custody petitions. See Matter of Madelyn E. P., 196 A.D.3d 489 at 490 (NY App. Div 2d 2021).
The court critically evaluates each extraordinary circumstance alleged by the petitioning non-parent. In cases that allege abandonment as the extraordinary circumstance, the non-parent must prove that the parent's actions meet the statutory standard of abandonment as articulated in the Social Services Law. See Bisignano v Walz, 164 A.D.2d 317 at 319 (NY App. Div 3d 1990). § 384-b (5) (a) of the Social Services Law defines abandonment as when a parent "evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so" See Social Services Law § 384-b (5) (a). Such intent is demonstrated when parents fail to visit or communicate with the subject child for six months or more. See Matter of Mason H., 31 N.Y.3d 1109 at 1110 (NY Ct App, 2018). Parents are presumed to be able to communicate and visit with their children unless evidence is specifically presented to the contrary. See Mason H., 31 N.Y.3d 1109 at 1110; Social Services Law § 384-b (5) (a). Proffered evidence must clearly and convincingly demonstrate that the parents in question suffered "hardship that permeated [their lives] to such extent that contact was not feasible and that circumstances were of such continuously grave or absorbing character as to explain [their] inability to set aside one or 2 hours during year to see [their] child." In re Catholic Child Care Soc. of Diocese, 112 A.D.2d 1039 at 1040 (NY App. Div 2d 1985). The court will also consider whether the parents in question contacted the subject child after the commencement of a proceeding against them. See Matter of Najuan W., 184 A.D.3d 1111 at 1113 (NY App. Div 4d 2020).
After the extraordinary circumstances analysis is complete, the court must turn to the best interests inquiry. See Matter of Jose E. S. G., 193 A.D.3d 856 at 856 (NY App. Div 2d 2021). This inquiry is case specific and requires an individualized determination regarding whether having a guardian appointed is in the best interest of the subject child (see Jose E. S. G., 193 A.D.3d at 856), bearing in mind the subject child's age, abilities, living conditions and the impact that the appointment of a guardian will have on the subject child. Furthermore, there are no guidelines on who can be a guardian, only that the guardian's appointment is in the subject child's best interests. See Maura A.R.-R., 114 A.D.3d 687 at 688-689 (NY App. Div 2d 2014). In cases involving guardians appointed to individuals seeking SIJS status, the court can consider "plight the child would face if returned to his or her native country" as part of the best interest analysis. See Matter of Marisol N.H., 115 A.D.3d 185 at 191 (NY App. Div 2d 2014); see also Denia M. E. C. v Carlos R. M. O., 161 A.D.3d 853 at 854 (NY App. Div 2d 2018).
Application:
The Subject Child, age 20, was born on XXX XX, 2002 in Grenada and moved to the United States in 2015, when she was 13 years old. Accordingly, if the Court grants the Subject Child's guardianship petition and related SIJS motion, she will be eligible for SIJS status. As Respondent Mother opposes the appointment of Mr. M. as Guardian, the Court must conduct an extraordinary circumstances analysis as required by Bennett v Jeffreys.
Counsel for the Subject Child argued that because the Subject Child is 20, Bennett v Jeffreys does not apply, and therefore an extraordinary circumstances analysis is unnecessary. Counsel specifically argued that Bennett was decided in 1976, decades before FCA § 661 (a) raised the age of eligibility for guardianships from 18 to 21. As a consequence, Bennett only applies to children aged 18 and under. The Court does not find that argument persuasive. The legislative intent in raising the age of children eligible for guardianship under FCA § 661 (a) is to include children through the age of 21 so that they will be eligible for SIJS status. Sing W.C., 83 A.D.3d at 90 - 91 Moreover, in dealing with statutes necessarily related to FCA § 661 (a), such as the statute that defines abandonment, the definition of "children" is expanded to those under 21. See Id. In reading these statues and case law together, in circumstances such as those present in the case at bar, a subject child up to the age of 21 must prove that extraordinary circumstances are present.
Counsel for the Subject Child argued that in the alternative, extraordinary circumstances are present and that Respondent Mother abandoned the Subject Child. The Court finds that extraordinary circumstances are present in that Respondent Mother abandoned the Subject Child in November 2020 within the definition of Social Services Law § 384-b (5) (a) when the Subject Child vacated the apartment and then cut off all contact and support. See Social Services Law § 384-b (5) (a). Preceding November 2020, Respondent Mother and the Subject Child's relationship was strained, but Respondent Mother's actions did not rise to the level of neglect, abuse or abandonment. During that time, Respondent Mother cared for the Subject Child by providing for her financially, planning for the Subject Child's educational future, taking diligent care of the Subject Child's sensitive skin by purchasing "special" body soap and laundry detergent.
In the alternative, counsel for the Subject Child argued that extraordinary circumstances are present and Respondent Mother's actions meet the statutory definition of abandonment, in that she intentionally gave up her parental rights and obligations. This intention was demonstrated by Respondent Mother's failure to visit or communicate with the Subject Child for an extended period. Foremost, Respondent Mother alleged that shelter management removed the Subject Child from the apartment after the Subject Child "refused to apologize" to her. However, at minimum, Respondent Mother did not testify that she tried to work with shelter management to allow the Subject Child to remain residing in the apartment. After the Subject Child left the apartment, Respondent Mother did not visit or communicate with the Subject Child for the following two years, including after the commencement of these proceedings. Moreover, Respondent Mother declined to provide the Subject Child with her new address and, as of the date of trial, did not provide the Subject Child with her new telephone number.
The Subject Child cannot look to her Stepfather for support, as it is undisputed that the two have not communicated since she vacated the apartment. Respondent Father waived further involvement in this proceeding and consented to Mr. M. being appointed as the Subject Child's guardian.
The Court finds it is within the best interests of the Subject Child to appoint Mr. M. as her Guardian. The Subject Child credibly testified about the support, emotional and otherwise, that Mr. M. provides to her, particularly in light of the fact that she is "on her own." See Transcript from October 20, 2022, p. 10. The level and type of care provided by Mr. M. meets the Subject Child's specific needs. As the Subject Child is now twenty years old, Mr. M. supports her in areas such as school, employment and housing. The type of care provided by Mr. M. is appropriate for the Subject Child's age and development, as it is designed to help the Subject Child help herself. If Mr. M. were to provide a stricter level of guidance to the Subject Child, he would discount the problem-solving skills and independence that she already achieved.
The Subject Child already achieved a level of stability in her life with Mr. M.'s assistance. However, much uncertainty lies ahead for the Subject Child, including but not limited to her citizenship status and finding housing after she ages out of the youth shelter that she currently resides in. Appointing Mr. M. as the Subject Child's guardian will officially recognize the assistance he provided to the Subject Child to date and will help her gain citizenship in the United States. Without the latter, the Subject Child risks having to return to Grenada, where she has not lived since she was 13. If the Subject Child were to return to Grenada, she would not have the support system that is in place in the United States that most significantly includes Mr. M.
Conclusion:
BASED on all the above, It is hereby ORDERED, that the petition is granted after hearing in so far as Mr. M. is appointed as the guardian of the Subject Child. The Court will determine the motion regarding SIJS status after the issuance of this decision and order.