Opinion
P-XXXX-16
09-01-2016
Matter of L.L. v. T.L.
Timothy A. Roulan, Esq., of Syracuse, New York, Attorney for the Child, Amanda McHenry, Esq., of counsel to the Hiscock Legal Aid Society, for the respondent, Diane Darwish Plumley, Esq., of Syracuse, New York for the mother, Maggie Seikaly, Esq., for the Onondaga County Department of Children and Family Services
Timothy A. Roulan, Esq., of Syracuse, New York, Attorney for the Child, Amanda McHenry, Esq., of counsel to the Hiscock Legal Aid Society, for the respondent, Diane Darwish Plumley, Esq., of Syracuse, New York for the mother, Maggie Seikaly, Esq., for the Onondaga County Department of Children and Family Services
The Attorney for the Child filed a verified petition on May 10, 2016 seeking an order for a genetic marker test to determine the paternity of the minor child L.L. (D.O.B. XX/X/XXXX) and an order directing the respondent to pay child support upon the determination of paternity. On June 20, 2016, the attorney for the respondent filed a motion requesting dismissal of the paternity petition or in the alternative requesting the Court conduct a hearing on the basis of equitable estoppel. The respondent asserts: (1) the Attorney for the Child lacks the requisite standing to request the Court to order a genetic marker test as not being a proper party to the action pursuant to Family Court Act §418(a); (2) based upon the doctrine of equitable estoppel it is not in the best interests of the child for the Court to order a genetic marker test pursuant to Family Court Act §418(a) and §532(a).
BACKGROUND
The subject child, L. L., was born out of wedlock on XX/X/XXXX to A. L. (hereinafter referred to as "the mother"). Upon the child's birth, T.L. (hereinafter referred to as "respondent") signed an acknowledgment of paternity on XX/X/XXXX. The respondent seeks to remain the legally established father of the child.
On December 9, 2014, the Onondaga County Department of Children and Family Services (hereinafter referred to as "DCFS") filed a neglect petition against the mother and the respondent alleging their untreated substance abuse issues and lack of stable housing impaired their ability to parent the minor child. Subsequently, an application for temporary removal was filed by the DCFS and granted by the Court on February 4, 2015, based upon the grounds asserted in the underlying neglect petition.
On February 18, 2015, the mother and respondent made admissions to the allegations of neglect set forth in the petition before the Court and a dispositional hearing was conducted thereafter on April 4, 2015. The Court on May 13, 2015 entered a final order of fact finding and disposition in which both were adjudicated to have neglected the child. The respondent was granted supervised visitation and directed to complete various services. Subsequent permanency plan hearings were conducted with the Court approving the goal of parental reunification and continued the child's placement with the DCFS.
On July 15, 2016, the matter came before the Court for oral argument on the respondent's motion to dismiss and all counsel appeared. The petitioner contended the respondent was incarcerated at the time of conception and that the mother has stated that the respondent is not the father of the child. The mother's attorney and the attorney for the DCFS both argued in favor of the petitioner's application for genetic testing. The respondent's counsel argued that the Attorney for the Child lacked standing to bring the application before the Court and it would be contrary to public policy to grant the relief requested.
STANDARD OF LAW
Respondent seeks to dismiss the paternity petition asserting the Attorney for the Child lacks standing as not being a proper party to seek the relief requested. The Court notes that Family Court Act §418(a) expressly states that "[t]he 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 ." Family Court Act §522 further states that "[p]roceedings to establish the paternity of the child and to compel support under this article may be commenced by the child or child's guardian ." Numerous decisions have recognized the attorney for the child's standing to commence a paternity proceeding on behalf of the minor child they represent. (Elacqua on Behalf of Tiffany DD v. James EE, 203 AD2d 688; Slocum on Behalf of Nathan A. v. Joseph B., 183 AD2d 102).
The Court will further note that an attorney for the child has even been granted standing to file a petition seeking to vacate an acknowledgement of paternity and an order of filiation, notwithstanding the fact that the statute only authorizes a signatory to the acknowledgement to do so. In the decision of Emily R., the court stated that "since the child is the person most affected by an order of filiation, and the child has statutory authority to bring a paternity action, [the provisions of Family Court Act §522] would be meaningless if the child herself were stymied by the existence of an outstanding Acknowledgement of Paternity that she was powerless to challenge." (Emily R. v. Emilio R., 2016 NY Slip Op 26227). Similarly, the child is the one most affected by a paternity test and has statutory authority to bring a paternity action. Thus, by extension, the attorney for the child has standing to seek a paternity test on the child's behalf. (In re Trosset, 32 Misc 3d 198).
Family Court Act §241 was established in order to ensure the protection of the child's interests and provide assistance in expressing their wishes to the court. The Rules of the Chief Judge state that an attorney for the child has a duty to zealously advocate the child's position. (22 NYCRR §7.2(d); Matter of Brian S., 34 NYS3d 851). However, when the child lacks the needed capacity to guide and instruct counsel, the attorney for the child must determine the child's best interests independently and advocate accordingly. (FCA §241; 22 NYCRR §7.2(d)(1), (3); Swinson v. Dobson, 101 AD3d 1686; Shaw v. Bice, 117 AD3d 1576). In its role as advocate for the subject child, an attorney for the child has an interest in the welfare of the child sufficient to grant standing. (Renee B. v. Michael B., 227 AD2d 315). As such, an attorney for the child should be afforded the same reasonable opportunity to appear and present arguments on behalf of the child as is the child's mother, father, or other interested party. (Krieger v. Krieger, 65 AD3d 1350).
The respondent further contends the paternity petition should be dismissed on the grounds of equitable estoppel, pursuant to Family Court Act §418(a) and §532(a), or that in the alternative a hearing be conducted. The applicable statute states that a genetic marker test shall not be ordered if the Court finds that it is not in the child's best interests on the "basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman" FCA §516(a).
It is well settled that prior to the court ordering a genetic marker test in a paternity proceeding seeking to vacate an acknowledgment of paternity a best interests hearing is typically conducted to determine the issues of equitable estoppel and the child's best interests. (Tracy C.O. v. Douglas A.F., 66 AD3d 1390; Melissa B. v. Robert W.R., 25 AD3d 62; Eugene F.G. v. Darla D., 261 AD2d 958). The court shall order a genetic marker test if, and only if, the court determines that the doctrine of equitable estoppel does not apply based on the child's best interests. (Darlene L.-B. v. Claudio B., 27 AD3d 564). Only under limited circumstances has a genetic marker test been granted without a hearing whereby the petitioner failed to make a prima facie showing of equitable estoppel or the court had sufficient information to render an informed decision consistent with the child's best interests. (Edward WW v. Diana XX, 79 AD3d 1181, 1182; Leon L. v. Carole H., 210 AD2d 484).
The best interests of the child are always the paramount concern and primary consideration. (Isaiah A.C. v. Faith T., 43 AD3d 1048). Thus, regardless of the context in which the doctrine of equitable estoppel is used, whether in cases involving paternity, child custody, visitation and support, it will only be applied where it furthers the best interests of the child. (Charles v. Charles, 296 AD2d 547). Even if the court believes that the child has the right to know the identity of his or her biological father, such a belief is insufficient to overcome the child's best interests before they are determined at a hearing. (Tracy C.O. v. Douglas A.F., 66 AD3d 1390).
FINDINGS BY THE COURT
The Court must construe statutory language according to its most obvious meaning and by doing so, it is clear that the paramount concern underlying the provisions in Article 5 of the Family Court Act is the best interests of the child. The Court finds that it is not contrary to the general intent of Family Court Article 5, or decisional case law, that the Attorney for the Child be afforded standing to commence a paternity petition on behalf of the child. (Elacqua on Behalf of Tiffany DD v. James EE, 203 AD2d 688).
The Attorney for the Child properly advocated for the child by applying his discretion in filing the paternity petition, as the child clearly lacks the requisite capacity to do so himself due to his age. (Shaw v. Bice,117 AD3d 1576). Accordingly, the Court denies that portion of the respondent's application requesting dismissal of the paternity petition in its entirety.
Furthermore, the Court finds that the child, by and through the Attorney for the Child, as well as the respondent, be given a full opportunity to be heard at a best interests hearing where the issue of equitable estoppel will be determined. After conducting a hearing, a genetic marker test may only be ordered according to and consistent with the findings of the best interests hearing. (Tracy C.O. v. Douglas A.F., 66 AD3d 1390).
Therefore, the Court grants that portion of the respondent's application requesting a hearing to determine the relief being sought in the petition before the Court. A hearing will therefore be conducted in which the issues of equitable estoppel and the child's best interests will be determined. The Court will further entertain any remaining arguments raised by the parties at such hearing.
NOW, after hearing oral argument from counsel and upon due deliberation of the pleadings before it and on motion by the attorney for the respondent, it is
ORDERED, that the motion to dismiss the pending paternity petition before the Court is hereby denied; and it is
ORDERED, that a best interests hearing shall be conducted on October 20, 2016 at 10:00 AM in Part 1 of Onondaga County Family Court, 401 Montgomery Street, Syracuse, New York 13202; and it is further
ORDERED, that mail or e-mail service of this Order upon the attorneys for the parties and the Attorney for the Child is deemed sufficient.