Opinion
F-18212-2009
04-20-2016
In the Matter of a Proceeding Under Articles 4 & 5 of the Family Court Act, Jonathan C., Petitioner, v. Iaishia Q.T., Respondent.
Father: Helen Dukhan, Esq. 26 Court St, Suite 2511 Brooklyn, NY 11242 Phone:(866) 937-9990 Mother: Eli Yeger, Esq., 16 Court St, Suite 2006 Brooklyn, NY 11241 Phone:(718) 875-1900 Attorney for the Child: Ms. Batang-Behan, Esq. Children's Law Center, 44 Court St #11, Brooklyn, NY 11201 Phone:(718) 522-3333
Father: Helen Dukhan, Esq. 26 Court St, Suite 2511 Brooklyn, NY 11242 Phone:(866) 937-9990 Mother: Eli Yeger, Esq., 16 Court St, Suite 2006 Brooklyn, NY 11241 Phone:(718) 875-1900 Attorney for the Child: Ms. Batang-Behan, Esq. Children's Law Center, 44 Court St #11, Brooklyn, NY 11201 Phone:(718) 522-3333 Javier E. Vargas, J.
Upon the foregoing papers and for the following reasons, the motion by Petitioner Jonathan C. (hereinafter "Father"), for the vacatur of an Order of Filiation, is hereby held in abeyance pending further proceedings and, if necessary, the results of a DNA Genetic Marker Test.
I.
The following facts are essentially undisputed and have been gleaned from the appellate file and evidentiary hearing held herein. Between July 2005 and June 2008, the Father and Respondent Iaishia T. ("Mother") had sporadic and unprotected intimate relationships outside of marriage. The subject child was born out-of-wedlock to Mother on May 28, 2007 in Brooklyn, New York. After the child's second birthday, by Summons and Petition dated July 31, 2009, Father commenced the instant Paternity proceeding against Mother in Kings County Family Court, seeking an Order of Filiation adjudging him the child's father. On August 28, 2009, the Father, then 21 years-old, appeared pro se before a Support Magistrate, who tersely questioned and adjudged him to be the father of the child based upon Mother's affirmation that he was the child's father and upon his own statement that he had "no doubt" as to his paternity. An Order of Filiation (Spegele, S.M.), dated August 28, 2009, was therefore entered, on consent, declaring him the father of the subject child.
The matter was immediately transferred to Family Court, New York County, which has jurisdiction over support proceedings involving recipients of public assistance from the New York City Department of Social Services ("DSS"), like the Mother and child herein. On June 8, 2010, the New York County Family Court (McCarrick, S.M.) issued an Order of Support, upon the Mother's default, ordering the Father to pay the sum of $64 per week to Mother for child support as well as establishing arrears totaling $2,944 for past assistance, payable through the NYS Child Support Collection Unit.
Two years later, by Notice and Motion dated February 2, 2011, the Father moved to vacate the Order of Filiation alleging that Mother and her relatives had been insinuating that he was not the real father and that he had taken a private DNA Genetic Marker Test that showed that he was, in fact, not the child's father. In support of his Motion, the Father attached the DNA test results and argued that he had only consented to the Order of Filiation because he was young and naively relied upon the Mother's misrepresentation that he was the father, without knowing that the Mother "was lying to [him]." He further asserted that he was not "a good father figure" to the child because he had been "in and out of the justice system" without a job "for the past four years," and that he had never "physically take[n] care of said child," but was "actually tended to by [his] mother." Due to its interest in reimbursement for prior public assistance to Mother, DSS successfully moved in 2011 to intervene as a party to uphold the paternity of the child and recover its public assistance payments.
In the meantime, the Family Court mailed several Notices of Appearance, and eventually of Inquest, to the Mother to appear for the vacatur proceedings, but she rarely appeared, relying instead on her assigned counsel, who repeatedly claimed that she consented to the relief sought by the Father. After a series of "18 court conferences, over the course of three years," the Family Court, Kings County (Ramirez, J.), by Decision & Order dated January 31, 2014, summarily denied the Father's motion, without a hearing or taking evidence, on the ground that he had previously waived counsel and admitted to his paternity "knowingly and voluntarily" during the proceedings leading up to the Order of Filiation.
Upon the Father's appeal, by Decision & Order dated September 16, 2015, the Appellate Division, Second Department, reversed the Family Court holding that an evidentiary hearing was required "on the issues of whether the order of filiation was procured by a misrepresentation made by the mother regarding the petitioner's paternity * * *, and whether the petitioner should be estopped from challenging the filiation order based upon the best interests of the child (see Matter of Santos Ernesto R. v. Maria S.C., 66 AD3d 910, 911—912 [2nd Dept. 2009])" (Matter of Jonathan C. v Iaishia Q.T., 131 AD3d 1054, 1055 [2nd Dept. 2015]). Following assignment of this matter to the undersigned, the parties were immediately informed of an appearance date and eventually a hearing date.
On February 26, 2016, the Father and his counsel appeared ready to proceed in this longstanding matter, but the Mother again failed to appear or request an adjournment. The Father convincingly argued that there should be an inquest to provide some finality to the four years of litigation where both his status and that of the child have been left in limbo. On the one hand, the Mother's counsel informed the Court that he had unsuccessfully contacted the Mother, surmised that she may be suffering from some medical ailment, but affirmed that the Mother consents and "does not object to the relief requested by" the Father. On the other hand, the Attorney for the Child and DSS opposed proceeding to inquest, arguing that the matter should be adjourned yet one more time to afford the Mother an opportunity to appear or be "subpoenaed" for the hearing. Based on the Mother's lengthy history of nonappearances, her actual knowledge of the hearing date, counsel's statements and lack of medical documentation to excuse her default, this Court ruled that an inquest should be had immediately, but essentially afforded Mother yet one more time, until that afternoon, for her appearance. She failed to appear, but again informed her counsel via telephone that she consented to the Father's application. II.
At the inquest hearing to determine the Vacatur Motion, the Father was the only witness to testify. He testified about his "on and off" unprotected sexual relations with the Mother during the relevant period on at least "three times," and about his learning of her pregnancy from her and her relatives six months into it when he was 21 years of age. Although the parties' relationship was "shaky" with a lot of "back-and-forth arguments," he believed there was a "possibility" that he was the child's father, without excluding other individuals as possible fathers. He testified that he saw the child "off and on" approximately "ten times" from her birth to prior to the commencement of this proceeding. Because his difficult relationship with the Mother interfered with his access to the child, the Father testified that he commenced the instant Paternity Proceeding in July 2009 to establish his paternity and get regular visitation with the child. When in court, the Father declined the Support Magistrate's offer of a DNA Genetic Marker and was declared the father.
Eventually, when the child was approximately two-three years old, the Father testified that he was granted overnight visitation with her on alternating weekends and enjoyed visitation approximately 24 times a year for two years, according to his estimations between 48 to 56 times. He acknowledged that the child referred to him as "Daddy" and that he purchased "simple, basic needs, like Pampers, milk" and other things for the child, but never gave her gifts or monetary contributions. He candidly referred to his visits as a "special time" during which they formed a "little bond." He testified that he also introduced the child to the paternal grandmother, who did most of the babysitting during visitations.
Doubts about his paternity emerged by the end of 2010, and the Father testified that he wanted to verify his paternity by obtaining a Genetic Marker Test because the paternal grandmother was "in [his] ear saying that this is not your child," and the Mother's cousin had told him that "you know, you're not that baby's daddy, right?" The Father asserted that he initially thought that the Mother's cousin made that statement because of his "rocky" relationship with the Mother, but later realized that she was "giving [him] a hint." According to him, the Mother made statements "herself too" and he heard "some sneaky stuff from the side," all of which made him probe to "find out if it's really true or not." As a result, in November or December 2010, one year and four months after the Order of Filiation, the Father administered a "DNA Test" on the child by swabbing her with a Q-tip and sending the sample to a laboratory. Around that time, the Father testified that he started to distance himself from the child and stopped seeing her in December 2010, "so about six years ago."
In January 2011, the Father testified that he learned that he was excluded as the girl's father, and upon learning the test results, he totally ceased all visitation with the two and one-half year-old child. Although the Mother was unaware that the Father had administered the test, he notified her immediately upon learning the results. Shortly thereafter, in February or March 2011, the Father filed the instant Motion seeking to vacate the Order of Filiation. According to him, this case has been "challenging" because he has "been coming faithfully" to court, but the Mother frequently failed to appear in court, prompting several adjournments throughout four years. The Father rested his case, but neither the Mother nor the Attorney for the Child attempted to introduce any witness, testimonial or documentary evidence. Instead, this Court afforded the Attorney for the Child and DSS permission to elicit testimony in the form of cross examination from the Father.
Although the Father testified that he does not have the copy of the privately-administered DNA Genetic Marker Test results, this Court has access to the test results because they were submitted as an attachment to the Motion under review herein. While such privately-administered test results are generally inadmissible (see Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1135 [3rd Dept. 2006]), this Court has considered the same as material and relevant only to the determination of this inquest vacatur proceeding.
In summations, the Father prevailed on the Court that it should vacate the Order of Filiation, without the necessity of an additional equitable estoppel hearing, because he was relatively young and inexperienced at the time, he consented to his paternity on reliance of the Mother's misrepresentations, and immediately ceased all contact when the infant child was only two-and-one-half years old, upon receiving the negative DNA test results over five years ago. Relying on the case of Matter of Derrick H. v Martha J. (82 AD3d 1236 [2nd Dept. 2011]), the Father argued that the child would suffer no irreparable harm due to her young age, limited contact with him and lack of any meaningful bond with the Father. There was no objection or disagreement by the Mother's counsel.
In opposition, the Attorney for the Child argued that the Court should not vacate the Order of Filiation because the Father was the one who commenced this Paternity Proceeding, had held himself out to be the child's father, visited with her for two years, introduced her to the paternal grandmother, and permitted her to refer to him as "Daddy." In her Memorandum of Law, the Attorney for the Child reported for the first time that the child is now eight years old, has known for a while about the tests results excluding the Father as her father and has not visited with him in approximately four years, but that she missed him and would "like for him to be her father." If the Court was inclined towards vacatur, the Attorney for the Child urged that there should be an additional, separate equitable estoppel hearing, where she was going to subpoena the Mother - if necessary - to secure her presence and testimony.
Finally, DSS argued that the Order of Filiation should not be vacated because it has relied upon the Father's statements to seek reimbursement for the cash payments given to Mother during the infancy the child and should not be forced to forfeit its ability to secure such payments. At the conclusion of summation, the Court afforded counsel an opportunity to submit Memoranda of Law by March 21, 2016, but only the Attorney for the Child submitted one. At this preliminary stage, the Court tends to disagree with the Attorney for the Child and DSS. III.
Pursuant to CPLR 5015(a)(3), a court may relieve an aggrieved party from a judgment, including an order of filiation, on the grounds of "fraud, misrepresentation, or other misconduct of an adverse party" (Matter of Fulmer v Buxenbaum, 90 AD3d 755, 755—756 [2nd Dept. 2011]; see Matter of Jose F.R. v. Reina C.A., 46 AD3d 564 [2nd Dept. 2007]; Matter of Vernon J. v Sandra M., 36 AD3d 912, 913 [2nd Dept. 2007]). A court may properly deny a motion to vacate an order of filiation where the motion fails to set forth any basis to vacate the order (see Matter of Crowell v Lindor, 107 AD3d 795 [2nd Dept. 2013]), or where the party seeking to vacate the order failed to make a prima facie showing sufficient to warrant a hearing on the issue of whether the order was the product of fraud, misrepresentation, or other misconduct (see Matter of Fulmer v Buxenbaum, 90 AD3d at 755—756). However, a court need not make a determination in an equitable estoppel hearing as to the best interests of a child, unless the party seeking to vacate the order of filiation has demonstrated a sufficient basis upon which to vacate the order (accord Matter of Santos Ernesto R. v Maria S.C., 66 AD3d 911, 912 [2nd Dept. 2009]; Matter of Westchester County Dept. of Social Servs. v Robert W.R., 25 AD3d 62, 72 [2nd Dept. 2005]).
Applying the foregoing legal principles to the matter at bar, the Father has sufficiently set forth a prima facie case for the vacatur of the Order of Filiation (see CPLR 5015[a][3]; Matter of Fulmer v Buxenbaum, 90 AD3d at 755—756). At the inquest, he credibly testified that the Mother misrepresented under oath and in open court that he was the child's father, prompting him to rely upon that misrepresentation in seeking and consenting to the Order of Filiation (cf. Matter of Oscar X.F. v Ileana R.H., 107 AD3d795, 796 [2nd Dept. 2013]; Matter of Derrick H. v Martha J., 82 AD3d 1236, 1237—1238 [2nd Dept. 2011]). His testimony regarding the Mother's misrepresentations was substantiated by the undisputed results of the private DNA test showing that he is not the child's father (see id.).
Moreover, the Father's proof regarding the Mother's misrepresentations went unrefuted. Indeed, the Mother did not oppose the Father's motion or even appear at any of the court proceedings during which his motion was being considered, except for one appearance. Under these circumstances, this Court may - and is herein - drawing a negative inference from the Mother's repeated and unexcused failures to appear and testify in this matter (see Matter of Elijah J. [Yvonda M.], 87 NY2d 73, 79 [1995]).
Nevertheless, contrary to the Father's position, precedent has repeatedly held that, "even if it is determined that the order of filiation was the product of fraud, misrepresentation, or other misconduct, a court may, where appropriate, apply the doctrine of equitable estoppel to preclude a party from challenging the filiation order" (Matter of Jonathan C. v Iaishia Q.T., 131 AD3d at 1055; see Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 4 [2010]; Matter of Shondel J. v Mark D., 7 NY3d at 326; Matter of Santos Ernesto R. v Maria S.C., 66 AD3d at 912). "The paramount concern in applying equitable estoppel in [paternity] cases has been, and continues to be, the best interests of the child" (Jean Maby H. v Joseph H., 246 AD2d 282, 285 [2nd Dept. 1998]; see Matter of Shondel J. v Mark D., 7 NY3d at 326; Matter of Vernon J. v Sandra M., 36 AD3d at 913).
Here, before making a final determination as to the vacatur of the Order of Filiation, "the Family Court is then required to conduct a hearing regarding the best interests of the child before ordering a [DNA Genetic Marker Test]," if necessary (Matter of Westchester County Dept. of Social Servs. v Robert W.R., 25 AD3d at 63; see Family Court Act §§ 532[a], 418[a] ; Matter of Juanita A. v Kenneth Mark N., 15 NY3d at 4; Matter of Santos Ernesto R. v Maria S.C., 66 AD3d at 912). At that hearing, this Court will determine whether the "child justifiably relie[d] on the representations of a man that he is his or her father with the result that he or she will be harmed by the man's denial of paternity, [and whether] the man may be estopped from making such a denial" (compare Matter of Shawn H. v Kimberly F., 115 AD3d 744, 745 [2nd Dept. 2014] [father equitable estopped due to long ten-year relationship with child, paid child support, introduced to relatives], with Matter of Felix M. v Leonarda R.C. 118 AD3d 886 [2nd Dept 2014] [no equitable estoppel given child did not know father, lacked any relationship and no visits for years]). As such, the undersigned's determination on the issue must be held in abeyance pending that hearing. IV.
Family Court Act §§ 418(a) and 532(a), governing the procedures related to scientific testing, provide in relevant part: "The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests . . . to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman."
In accordance with the foregoing, the Father's motion to vacate the Order of Filiation is held in abeyance pending an equitable estoppel hearing to be conducted with all deliberate speed. Depending on the determination of that hearing, the results of a DNA Genetic Marker Test ought to be performed under the auspices of the Family Court, given the parents' indigence ( see Family Court Act §§ 418[b], 532[a]). The foregoing constitutes the Decision and Order of the Court. ENTER: Dated: April 20, 2016 Brooklyn, New York J.F.C.