Matter of O.Y.

[*1] Matter of O.Y. 2009 NY Slip Op 52669(U) [26 Misc 3d 1205(A)] Decided on September 22, 2009 Family Court, Nassau County Zimmerman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2009
Family Court, Nassau County

Proceeding for the Appointment of a Guardian Of and Special Findings For O.Y.



XX

Hope Schwartz Zimmerman, J.

The Attorney for the Child, Theo Liebman, Esq. moves this Court for an

order granting leave to reargue the decision of the Hon. Norman St. George dated April

14, 2009 which decision denied the Attorney for the Child's application

for guardianship and special findings.

Pursuant to CPLR Section 2221(a), the instant motion to reargue is

referred to this Court for determination in light of the unavailability of the

Hon. Norman St. George.

The Attorney for the Child asserts in the instant motion to re-argue that in the first instance, the Court overlooked or misapprehended the applicable legal standard. The Attorney for the Child argues that since the child's mother consented to the proposed guardianship, a showing of extraordinary circumstances need not be established. In addition, the Attorney for the Child argues that the child's home environment of forced manual labor of a twelve year old boy from El Salvador by his stepfather, the physical abuse which included beatings with wooden objects, the deprivation of food, and the exposure to the violence of his alcoholic stepfather, and a mother who was so [*2]abused herself was unable and refused to protect or care for him, meets the threshold finding of persistent neglect, abandonment and unfitness of his parent. The child's biological father abandoned the mother and child when the Child was five or six months old and has not been heard from since. The papers submitted indicate that there are no other resources available to the Child in El Salvador to care or support him emotionally, physically, or financially.

The Attorney for the Child also argues that the Court does have jurisdiction over immigrant youth subject to deportation and that such a Child is eligible for special immigrant juvenile status. (Gao v. Jenifer 185 F.3d 548[ 6th Cir. 1999])

A motion to reargue is addressed to the discretion of the Court and may be granted upon a showing that the Court overlooked or misapprehended the facts or misapplied the law or for some other reason improperly decided the prior motion. CPL§ 2221(d)(2); Foley v. Roche, 68 AD2d 558, 418 NYS2d 588 (1st Dept. 1979); Collins v. Stone, 8 AD3d 321, 778 NYS2d 79 (2nd Dept. 2004). The motion is to be based upon the papers previously submitted and it is inappropriate to consider new evidence. Simpson v. Loehmann, 21 NY2d 990, 290 NYS2d 914 (1928); Taub v. Colonial Coated Textile Corp., 54 AD2d 660, 387 NYS2d 869 (1st Dept. 1976).

Based upon the papers submitted, the court grants re-argument.

Section 661(a). of the Family Court Act defines infant or minor as a person who is less than twenty-one years old who consents to the appointment or continuation of a guardian after the age of eighteen.

In the instant case, the Child consents to the appointment of the guardian. The Court has the authority to so appoint a guardian as long as it is in the Child's best interests to do so, (In re K.B., 20 Misc 3d 1130(A) [NY Surrogate Court 2008]; Amrhein v. Signorelli 153 AD2d 28, 31[2d Dept. 1989]).

The Child's Mother has submitted documentation consenting to the appointment of the guardian. The report from the Family and Children's Association recommends that the Child's aunt, D. Y, be appointed as the Child's guardian.

The papers submitted outline the horrific events in the life of the Child which has lead him to seek the assistance of the court. The Nassau County Department of Social Services (DSS) has conducted an extensive court ordered investigation of the proposed guardian, her home and the Child. DSS reports that the Child will be cared for and safe in the aunt's home. The Child is still young, not yet a teenager and in need of assistance in being clothed, fed, sheltered, educated and getting medical care. He needs the guidance of an older mature adult who can be a role model.

The Attorney for the Child has requested that the Court make special findings pursuant the Special Immigrant Juvenile Statute Pub. L. N0. 110-457 (2008) amending U.S.C.A. Sec. 1101(a)(27) (J) (2007). Based upon the papers submitted the Court grants the special findings and determines that the Child is a special immigrant and that the following criteria are met:

1) The youth is under 21 years of age,(8 U.S.C.A Sec 1101(b)(1) 2007.

2) The youth is unmarried.

3) The youth has been declared dependent upon a juvenile/family court or an individual appointed by said court. (Pub.L.No. 110-457). The appointment of guardianship constitutes a declaration of dependency upon a juvenile/family court (Antowa McD., 50 AD3d 507 [1st Dept. 2008]). [*3]

4) Reunification with his mother is not viable due to neglect, abandonment or abuse or a similar basis. The Child's mother is unable to provide a safe or healthy environment for him and his father whereabouts are unknown and the Child has not heard from him since he was an infant (Nicholson v. Scoppetta 3 N.Y.3d 357 [2004]).

5) As a subject of judicial proceedings, the best interests of the Child would not be served by returning the Child to the country of origin. Given the ongoing threat to the Child's physical safety, a return to his mother's home or country is not in his best interest.

Based upon the foregoing, the court grants the guardianship of O. Y. To D. Y., and makes the special findings necessary pursuant to the Special Immigrant Juvenile Statute.

This constitutes the decision and order of the court.

All matters not herein addressed are denied.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

DATED: Westbury, New York

September 22, 2009

____________________

Hope Schwartz Zimmerman

J.F.C.

Order mailed on:____________

Order received in court:___________