Opinion
16190
02-17-2021
In the Matter of a Guardianship Proceeding MAHERLY M., Petitioner, v. ROBERT R., Kaleb G., Respondents.
Gretchen Beall Schumann, Esq., Rabin Schumann and Partners, New York, for Petitioner Eli Rosenbaum, Esq., Bronx, New York for Respondent Robert R. Elizabeth Posse, Esq., Bronx, New York for Respondent Kaleb G. Joseph V. Moliterno, AFC, Bronx, New York, for the subject children
Gretchen Beall Schumann, Esq., Rabin Schumann and Partners, New York, for Petitioner
Eli Rosenbaum, Esq., Bronx, New York for Respondent Robert R.
Elizabeth Posse, Esq., Bronx, New York for Respondent Kaleb G.
Joseph V. Moliterno, AFC, Bronx, New York, for the subject children
Phaedra Perry, J.
Background
The Petitioner, the sister of the deceased mother, Linda M., and the children's aunt, petitioned the court on June 19, 2019 for guardianship of Linda's three surviving children, fifteen year old E.R. (DOB X/X/XX), nine year old S.G. (DOB X/X/XX) and seventeen year old J.M. (DOB X/X/XX). The deceased mother and her 11 year old daughter H.R. were murdered on or about June 15, 2019. H.R. is the daughter of Respondent Robert R., who is also the father to E.R. All of the children were at the scene of the homicide and were immediately taken in by the Petitioner. Shortly thereafter, Petitioner filed three Guardianship Petitions for the three surviving children, all of whom had different fathers. The petition for the child J.M. was settled on consent of the father and is not a part of this proceeding.
Court's Exhibit 1.
At the beginning of the proceeding and at the request of E.R., the court held an in-camera with the two subject children. Thereafter, the Court ordered in-person and telephonic access between Robert R. and E.R. The in-person visits would occur when Robert R. was visiting New York and telephonic access would be as the parties agreed.
The court initially ordered supervised visits between Respondent Kaleb G. and S.G. which eventually progressed to every other weekend overnight access time and daily telephonic access.
An extraordinary circumstances hearing was held virtually over five days and included testimony, documentary and audio evidence, and a witness.
Testimony of Petitioner
Petitioner is 29 years older than the deceased mother and lived approximately 10 minutes away from her. She stated they shared a close relationship and that she would provide financial assistance, when needed, throughout the years. Petitioner testified that she has a good relationship with the children and that prior to Linda M.’s death, Linda M. and the children would sometimes come to her house for meals, spend holidays together, and share in other family events. She further testified that she would attend the children's school activities with them and would care for them when Linda M. was unavailable.
Petitioner testified that she had been expecting the deceased mother to come to her residence on the evening of June 15, 2019. When petitioner did not hear from her, she called the residence and was told that Linda M. was sleeping in her bedroom. The next morning, on June 16, 2019, she became alarmed when she still had not heard from Linda M. Petitioner called the residence and was told by the child J.M. that Linda M. was still sleeping in her bedroom. She then instructed J.M. to call the police and have her siblings leave the residence. At the same time, she instructed J.M. to knock on the door while she remained on the phone. At some point the child E.R. became upset after he observed his sibling H.R. on the bed with purple lips. When petitioner arrived at the residence, the police and paramedics had arrived, as did members of the press. She observed the children crying and the press attempting to ask them questions. Petitioner took them back to her residence and came to court a few days later to file guardianship petitions. The Court granted petitioner temporary guardianship over E.R. and S.G.
She testified that prior to Linda M.’s death, she had no contact with the father Robert R. who has resided in South Carolina since 2011, and she was not aware of E.R. having any contact with his father.
Regarding Kaleb G., father of S.G., petitioner testified that he was incarcerated prior to the birth of S.G. and that she was not aware of any contact or access he had with S.G. prior to the filing of his Custody Petition. Petitioner testified that the children get along and that there is a good relationship between them, which has only gotten stronger after the death of their mother and sister.
Testimony of Robert R.
Robert R. is the father of E.R. and the deceased child H.R. He and Linda M. were married but stopped living together shortly before H.R. was born. They were divorced in 2011 . Robert R. testified that while they were living together, he would help Linda M. take care of J.M. (her child with a different father) and E.R., and that his relationship with E.R. had been great. He stated that from 2008, when he and Linda M. separated, to 2011 before he relocated to South Carolina, he would see E.R. about ten times a year. He would also call Linda M. about twice a week to speak to the children. From 2011 to 2013, Robert R. testified that he spoke with the children about fifteen times in total. He admitted he did not send holiday or birthday cards to the children, although he claimed that he tried to send cards and gifts on several occasions but was thwarted by the mother. He stated he is up to date on his child support. Robert R. testified that after 2013, when he attempted to call E.R., Linda M. would not allow him to speak with him. As proof, he offered into evidence three audio recordings between him and Linda . In one of the contentious recordings, Linda stated, "you come and go, so just stay out of his life." She also told him that if he wanted to see the children, he should take her to Family Court.
Court's Exhibit 5.
Respondent Robert R.’s Exhibit A to C.
On cross examination by petitioner's attorney, Robert R. admitted that from the time he moved to South Carolina until the time of Linda M.’s death, he did not see or speak with E.R. even though he admitted visiting New York twice during the ten years he was living in South Carolina. On cross by the Attorney For the Children, he was asked why he left his children to move to South Carolina where he had not yet gotten a job or a place to live. Robert R. testified that although he was concerned about leaving his children, he decided to leave anyway because he felt he had no choice as the energy between him and Linda was not good. He also admitted that although his mom, a witness in the hearing, had filed a petition for visitation and was granted telephone access to the children on consent , he never filed any petitions for custody or visitation for himself and the children in Family Court. It was unclear to the Court from his testimony why he never pursued access to the children in Family Court.
Court's Exhibit 3.
Testimony of Kaleb G.
Kaleb G. is the father of S.G. born on X/X/XXXX. He was incarcerated on August 3, 2011, a few weeks before S.G. was born . Kaleb G. testified that he and Linda were high school sweethearts and lived together from 2009 to 2011 with her other children. He stated, while Linda M. and he were living together, petitioner never visited them and that once or twice he dropped the child J.M. off at petitioner's home. It was his opinion that petitioner and Linda M. did not share a close relationship.
Petitioner's Exhibit 1 and 2.
Kaleb G. testified that while incarcerated he saw S.G. once or twice sometime in April 2013. He stated that he did not want Linda M. to bring the kids to see him in prison because he did not feel it was appropriate. He stated he continued to correspond with Linda M. until she stopped responding in the summer of 2013. After that, he had no further contact with Linda M. although he continued to attempt to contact her. Kaleb G. also signed the children up to receive holiday gifts during various prison outreach programs and asked his family to check in on S.G. to provide financial and emotional support.
Kaleb G. further testified that in December of 2013 he filed a Petition for Visitation which was subsequently dismissed for lack of standing as paternity had not been established at the time. Paternity was later established on March 4, 2016 . It is unclear from his testimony why he did not re-file the Petition for Visitation and he did not have any contact with S.G. from April 2013 until he was released from prison and filed for custody in August 2019.
Court's Exhibit 6.
Court's Exhibit 7.
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Legal Analysis
In a custody dispute between a biological parent and a non-parent third party, parental custody may not be denied absent a threshold showing of extraordinary circumstances. Thus, the Court cannot deny a parent the custody of a child "... absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. Matter of Bennett v. Jeffreys , 40 NY2d 543, 544 (1976). The non-parent third party must bear the burden of proving that extraordinary circumstances exist. Even if extraordinary circumstances are proven, such a determination alone will not justify depriving a natural parent of the custody of the child. Rather, the Court must then make the determination that it is in the best interest of the child. Id. at 544-548.
Examples of extraordinary circumstances found by courts include prolonged separation, disruption of custody for a prolonged period of time and attachment of the child to the custodian (see, Id. , at 546, 550 ), sibling separation ( Matter of Scott FF. v Laurene EE., 278 AD2d 539, 540 [3rd Dept. 2000] ; Matter of Curry v Ashby , 129 AD2d 310, 314-315 [1st Dept. 1987] ), psychological bonding of the child to the custodian and potential harm to the child ( Matter of Michael G. B. v Angela L. B. , 219 AD2d 289, 293 [4th Dept. 1996] ; Matter of Pauline G. v Carolyn F. , 187 AD2d 589, 590 [2d Dept. 1992] ; Matter of Mary H. v Helen P. , 131 AD2d 571, 57, [2d Dept. 1987] ), the biological parent's abdication of parental rights and responsibilities (Matter of Bisignano v Walz , 164 AD2d 317, 320 [3rd Dept. 1990] ), and the child's poor relationship with the biological parent (Matter of Scott L. v Bruce N. , 126 AD2d 157, 161 [1st Dept. 1987] ). It has also been found that lack of involvement in the child's life may warrant a finding of extraordinary circumstances. Matter of Shemeek D. v. Teresa B. , 89 AD3d 608 (1st Dept. 2011), citing Matter of Bennett v. Jeffreys , supra and Matter of Iris R. v. Jose R. , 74 AD3d 457 (1st Dept. 2010).
While not all these cases apply to the instant matters, they do reflect that the rules concerning a finding of extraordinary circumstances is not restricted to a finite list. For example, in the case of Curry v. Ashby , 129 AD2d at 318, the Court found extraordinary circumstances where the child's:
"... welfare would be drastically affected, and that she would sustain a significant emotional injury, with a clear possibility of ongoing harmful consequences, if she were to be separated from the brother with whom she has lived most of her life, and to whom she is bound by the most profound feelings of affection and intimacy, and if she were to be removed at an emotionally vulnerable time in her life from a home in which she and her brother found emotional security in the aftermath of their tragic loss, to live with a parent with whom she had not lived for many years prior to her mother's death, and with whom she may never in fact have lived."
In Curry v. Ashby , the issue was whether the facts established extraordinary circumstances in the absence of any culpable conduct on the part of the parent. Like the facts in this case, the 10-year-old girl and her younger brother had been living with her maternal aunt after the tragic death of their mother. The girl had, at one point, lived with the father and his wife for a maximum of a year and a half and prior to that had visited the father every other weekend when the mother was alive. By all accounts, the father had been involved in the child's life and had a good relationship with her. Despite that, the Court found that the facts presented extraordinary circumstances of the kind that justified an inquiry into the best interests of the child.
In this case, both children lived with their mother and siblings until the mother's death. Prior to that, the fathers of E.R. and S.G. did not have a relationship with their respective child. The petitioner did not have a relationship with the children equal to that of their mother, but she did, in fact, have a closer relationship with the children than their fathers. Moreover, the children, through their attorney have expressed a desire to stay together and live with the petitioner.
The record demonstrates that, prior to the commencement of the proceeding, the Respondent Robert R. did not have a relationship with E.R. He testified that from 2011 to 2019, once he moved to South Carolina, he did not see or speak to his son. Although he testified that he did try to call many times in 2013, he did not file any visitation petitions in Family Court. The tragic death of Linda M. and their eleven-year-old daughter H.R. is what brought Robert R. back into the life of his fifteen-year-old son E.R.
In the case of Respondent Kaleb G., the record demonstrates that he was incarcerated before the birth of S.G. and he saw her once or twice in April 2013. Although his initial visitation petition filed in 2014 was dismissed because paternity had not been established, he did not re-file for visitation once paternity was established in 2016. He did not see or speak to S.G. until he was released from prison in 2019, a time exceeding six years of her nine years.
Accordingly, based on the children's wishes, length of separation from their respective fathers, and the children's "emotional security in the aftermath of their tragic loss," the Court finds the existence of extraordinary circumstances which warrant a determination of the best interests of the children.
It is Ordered that the matter is set down for a Best Interests Hearing to begin on February 18, 2021, from 10:00am — 1:00pm.
This constitutes the decision and order of the Court.