Opinion
2018–05661 Docket No. G–11761–17
09-19-2018
In the Matter of OLGA L.G.M. (Anonymous), appellant, v. SANTOS T.F. (Anonymous), respondent.
Bruno Joseph Bembi, Hempstead, NY, for appellant.
Bruno Joseph Bembi, Hempstead, NY, for appellant.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
In a guardianship proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Christopher Pizzolo, Ct. Atty. Ref.), dated April 9, 2018. The order, without a hearing, dismissed the petition.
ORDERED that the order is reversed, on the law, without costs or disbursements, the guardianship petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for an expedited hearing and a new determination thereafter of the guardianship petition.
In November 2017, the mother filed a petition pursuant to Family Court Act article 6 to be appointed the guardian of the subject child for the purpose of obtaining an order, inter alia, so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 U.S.C. § 1101(a)(27)(J). In an order dated April 9, 2018, the Family Court dismissed the petition, without a hearing, on the ground that it failed to state a cause of action because the putative father's paternity had not been established. The mother appeals.
We disagree with the Family Court's determination to dismiss the petition, in which the mother sought to be appointed guardian of her child. A natural parent may be appointed guardian of his or her child (see Family Ct. Act § 661[a] ; Matter of Cecilia M.P.S. v. Santos H.B., 116 A.D.3d 960, 961, 983 N.Y.S.2d 840 ; Matter of Marisol N.H., 115 A.D.3d 185, 190, 979 N.Y.S.2d 643 ), and the mere fact that paternity has not been established for the putative father does not preclude the mother's guardianship petition (see Matter of Jimenez v. Perez, 144 A.D.3d 1036, 1037, 42 N.Y.S.3d 248 ; Matter of Marisol N.H., 115 A.D.3d at 190, 979 N.Y.S.2d 643 ).
Accordingly, since the Family Court dismissed the guardianship petition without conducting a hearing or considering the child's best interests, the matter must be remitted to the Family Court, Nassau County, for an expedited hearing and a new determination thereafter of the guardianship petition (see Matter of Cecilia M.P.S. v. Santos H.B., 116 A.D.3d at 961, 983 N.Y.S.2d 840 ; Matter of Marisol N.H., 115 A.D.3d at 191–192, 979 N.Y.S.2d 643 ) and, if warranted, an order, inter alia, making specific findings so as to enable the child to petition for SIJS pursuant to 8 U.S.C. § 1101(a)(27)(J) (see Matter of Jimenez v. Perez, 144 A.D.3d at 1037, 42 N.Y.S.3d 248 ; Matter of Juana A.C.S. v. Dagoberto D., 114 A.D.3d 689, 690–691, 979 N.Y.S.2d 842 ).
DILLON, J.P., ROMAN, MILLER and DUFFY, JJ., concur.