Matter of D.F.

[*1] Matter of D.F. 2012 NY Slip Op 52062(U) Decided on October 5, 2012 Family Court, Suffolk County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2012
Family Court, Suffolk County

In the Matter of the Proceeding for the Appointment of a Guardian of the Person or Permanent Guardian D.F. (d.o.b. XXXX).



G-20299-11



Appearances:

Petitioner M.F. was represented by Heidi Bernstein, Esq., the Huntington School District was represented by Christopher Mestecky, Esq. and the subject child D.F. was represented by Attorney for the Child Howard Gardos, Esq.

John Kelly, J.

Petitioner, M. F. brought the instant petition dated October 27, 2011, seeking an order of guardianship of her grandson D.F., d.o.b. XXX. Huntington Union Free School District thereafter brought a motion seeking dismissal of the petition, or in the alternative, that the Court grant Huntington School standing to intervene in the guardianship proceeding and be heard with respect to the School's objection to the issuance of an order awarding petitioner guardianship of the subject child. By Order dated May 1, 2012, this Court denied the School's motion to dismiss the petition, but granted the School standing to intervene in the proceedings and be heard with respect to its' objection to the issuance of an order of guardianship. Petitioner was represented by Heidi Bernstein, Esq., the Huntington School District was represented by Christopher Mestecky, Esq. and the subject child was represented by Law Guardian Howard Gardos, Esq. The Court conducted a hearing with respect to the petition on July 9, 2012, August 6, 2012, and August 13, 2012. The Court granted petitioner's application and issued an order dated August 17, 2012, awarding petitioner grandmother guardianship of the subject child indicating that a written decision would thereafter be rendered. The following constitutes the Court's detailed findings and determination with respect to the above captioned matter.

Findings of Fact

O. M., mother of the subject child D.F. testified that at the time D.F. was born, she was sixteen years old, unemployed and living with her parents. O.M. testified that her mother, the petitioner, took care of D.F., changing diapers, feeding and tending to his other needs and that her parents supported her and D.F. financially. O.M. stated that when D.F. was a year old, she moved out of her parent's house with her boyfriend leaving D.F. with her parents at their Huntington Station home. O.M. stated that while her boyfriend supported her for a period, her parents always provided the financial support for D.F. . O.M. further stated that when D.F. started school, she was living in Wyandanch for a brief time, while D.F. continued to reside with [*2]her parents. O.M. testified that she moved out of her parents home approximately a year ago with her husband and three other children, ages eight, five and eighteen months to a home in Medford which they rent while D.F. once again remained in Huntington Station with petitioner and her husband.

O.M. stated that her parents made the medical decisions for D.F., although he was covered under her health insurance. O.M. also stated that she did help her mother care for D.F., but that her mother was his primary caretaker. O.M. testified that her parents have always provided the discipline for the child because D.F. views her as his sister and doesn't listen to her. O.M. emphasized that she could not imagine taking the child away from her mother, because she is more like his mother, he has always lived with her and it is the only home he has known.

On cross-examination, O.M. contradicted herself with respect to the time periods in which she was residing with her parents' after D.F.'s birth. While she testified at one point on direct examination that she was out of her parents' home for five of the nine years of D.F.'s life, on cross examination she indicated that she moved out before the child was a year old and only for a year. O.M. attempted to explain the discrepancy stating that she was "confused" about when she left her parents' residence and was unable to clarify the issue upon further questioning. O.M. was also inconsistent with respect to her testimony as to her level of participation in the care of her son D.F., ranging from very little to significant.

On cross examination O.M. stated that she cared for her other three children, made decisions for them and was "a good mother", but that D.F. was "more attached" to his grandmother and that she did "everything" for him. She also stated that if D.F. wanted to live with her and the rest of the family in Medford, it would be difficult to financially support him. She indicated that she does not work but that her husband earns approximately $200 to $300 per week and that she receives child support for two of her children. She stated that she does not know the whereabouts of D.F.'s father and that she does not receive financial support from him.

The School District submitted a document dated October 3, 2011, indicating that O.M. had filed to change the registration status of her two younger children to reflect her new address in Medford and to indicate that those two children would be transferring to Longwood Schools (Respondent's Exhibit "A"). O.M. admits to having filed for a change in registration status for her two younger children, but does not recall whether she told the school at that time that a guardianship petition was going to be filed with respect to the subject child. The School also submitted a letter sent to O.M. dated October 13, 2011, informing her that a formal review was scheduled by the school for October 20, 2011, to determine the child's entitlement to attend school in the District. (Respondent's Exhibit "B"). O.M. claimed she saw the letter but did not "fully" read it.A second letter dated October 24, 2011, addressed to O.M. was submitted by the School stating that "as a result of review of this matter conducted on October 20, 2011, I have determined that your son is not a resident of the Huntington Union Free School District and is, therefore not entitled to attend schools of this District." (Respondent's Exhibit "C"). O.M. admitted to contacting the school psychologist to discuss whether it was in D.F.'s best interest to remain with his Grandmother or to relocate with her and the rest of the family.O.M. admitted that the psychologist advised her against leaving D.F. with his grandmother while the rest of the family relocated.

O.M. testified that even though the guardianship petition in the instant matter dated [*3]October 27, 2011 (Respondent's Exhibit "F"), was filed shortly after the School's letter denying her son entrance, she and her family were thinking of filing the guardianship petition prior to that date. O.M. denied filing the guardianship merely to keep D.F. in the School District to take advantage of the special education program there and stated that her younger son currently receives special education services at their new school in the Longwood School District.

A.M., the subject child's maternal grandfather testified that after D.F. was born, his wife, the petitioner, was the primary caretaker of the child because his daughter was only sixteen or seventeen at the time. Mr. M. stated that his daughter moved out of the house for a period leaving D.F. with him and his wife and then moved back in with her second child, E. Mr. M's testimony, like his daughter's, was completely inconsistent with respect to the time period in which his daughter was living outside of his residence after D.F. was born, ranging from a year to seven years.

Mr. M testified that he, his wife and daughter always made decisions together for the subject child and that he always supported the decision that D.F. remain with him and his wife in their home. Mr. M admitted that his daughter always cared for her three other children and was capable of caring for D.F., but that the child has always been with them and wants to remain with them. Mr. M stated that they have always been willing to support D.F. financially and otherwise and that he has been the only "father-figure" that D.F. has known. Mr. M further stated that they had discussed the filing of the guardianship petition prior to the time of the actual filing in October of 2011, but that they never believed that the School District would give them a hard time about permitting D.F. to remain in the district.

Petitioner M.F., the subject child's grandmother testified that in December of 2011, she met with representatives of the Huntington School District and testified with respect to the issue of the residency of the subject child. When petitioner was asked whether she was prompted to file the instant guardianship petition after the School District denied D.F. admission, she stated that they had talked about seeking guardianship prior to that, but when the school district made its' decision to exclude D.F., they had to file.

The School District submitted a transcript of "the meeting" which occurred on December 12, 2011, in which petitioner grandmother and the grandfather were questioned by Mr. Mestecky, Esq. with respect to D.F.'s residency and their request to register D.F. in the Huntington School District (Respondent's Exhibit "E"). Petitioner's attorney, Heidi Bernstein, Esq. represented D.F. and his family at those proceedings. The Court reviewed the transcript and found many inconsistencies between the testimony given by petitioner grandmother at the hearing with the School District and the testimony given in the instant proceeding. Petitioner's testimony, similar to that of her husband's and her daughter's, was unclear as to the time period(s) in which her daughter resided with her and her husband in their home. Petitioner consistently testified during the instant hearing that D.F. always resided with her and her husband in their home even when her daughter left; however she testified at the residency hearing that her daughter always resided with her, her husband and D.F. in their home. Petitioner maintains at the instant hearing that she was the primary caretaker of D.F. and that her daughter would "help out"; however at the residency hearing petitioner stated that her daughter cared for the subject child. Petitioner further maintains that she and her husband always supported the child financially but at the residency hearing petitioner stated that her daughter provided financial support for the child. Petitioner's [*4]explanation for the inconsistencies was that during the residency hearing she was "nervous".

The subject child, nine year-old D. F. testified in-camera, in the presence of all counsel who were permitted the opportunity to cross examine the child. D.F. testified very credibly and consistently to the nature of his relationship with his grandmother and his mother as well as his living situation throughout the years. D.F. was without question, the most credible witness presented in this case. It was readily apparent to the Court that D.F. has a very close bond with both of his grandparents and views petitioner as his "mother-figure".

Legal Analysis:

The instant guardianship matter presents several interesting legal questions for the Court. First, the Court must address the School District's contention that petitioner failed to establish extraordinary circumstances to entertain petitioner grandmother's application for guardianship of the subject child. It is well settled that, "the State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. Where extraordinary circumstances are present, the court determines custody based on the child's best interest." Debra H. V. Janice R., 14 NY3d 576, 591, 904 N.Y.S.2d 263 (2010); Bennet v. Jeffreys, 40 NY2d at 545, 546, 387 N.Y.S.2d 821, 824 (1976); In the Matter of Lance McGraw, 258 AD2d 464, 464, 685 N.Y.S.2d 251, 251 (2d Dept. 1999); In the Matter of Arlene Y., 76 AD3d 720, 721, 906 N.Y.S.2d 645, 647 (3d Dept. 2010); In the Matter of Linda D., 40 AD3d 1201,1201, 834 N.Y.S.2d 726, 727 (2d Dept. 2007); In the Matter of Leslie Loukopoulos, 68 AD3d 1470, 1470, 892 N.Y.S.2d 238, 240 (3d Dept. 2009).

The instant case is entirely distinct from the well established line of cases which deal with the necessity of establishing "extraordinary circumstances" when a non-parent files for custody against a parent. In the instant matter, D.F.'s mother is consenting to the issuance of a guardianship order to petitioner grandmother with respect to the subject child. This Court finds no precedent for the proposition that extraordinary circumstances must be established for the Court to exercise its jurisdiction to issue a guardianship or custody order to a non-parent on consent of the parent(s). Further, the policy which underlies the requirement of a non-parent to establish the existence of "extraordinary circumstances" in an application for custody against a parent, is largely based upon a parent's right to the care and custody of his/her child without interference by the State. "Intervention by the State in the right and responsibility of a natural parent to custody of her or his child is [only] warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child." Bennett v. Jeffreys, 40 NY2d 543, 549, 387 N.Y.S.2d 821, 827 (1976); In the Matter of Jacqueline Sharon L., 26 AD3d 250, 253, 810 N.Y.S.2d 143, 146 (1st Dept. 2006); See also In the Matter of Archer W., 173 AD2d 543, 544, 570 N.Y.S.2d 144, 145 (2d Dept. 1991).

In the instant matter, the Court finds that D.F.'s mother, grandmother and grandfather, mutually decided that it was in D.F.'s best interest that he remain with petitioner grandmother and grandfather in their Huntington Station home, even though D.F.'s mother relocated with her husband and three other children to Medford. While this Court, is the final arbiter with respect to whether the issuance of an order of guardianship is in the child's best interests, the decision made by D.F.'s mother shall and will be given due consideration, in recognition that Ms. M is [*5]D.F.'s natural mother and absent "unfitness" has substantial rights as to the care and custody of her son, as the law of "extraordinary circumstances" set forth above dictates.

Further, even if the Court required that petitioner establish the existence of extraordinary circumstances to assert its jurisdiction, the Court finds that such extraordinary circumstances are present. While the mother's, grandmother's and grandfather's testimony was unclear and inconsistent with respect to the amount of time that D.F.'s mother was residing outside of petitioner's home and away from the child, the overwhelming evidence established that the child has always lived with his grandparents. It was evident from the credible testimony of the subject child, that he is very bonded with his grandmother and regards her as his "mother-figure". It is also undisputed that D.F.'s grandfather is the only "father-figure" that D.F. has known. The child was born when his mother was just sixteen years of age, when she was little more than a child herself, therefore it was natural for the grandmother to assume a "motherly" role. The Court will not underestimate or devalue the relationship that has developed between D.F. and his grandmother during such tender years and finds that in this particular case, if required, extraordinary circumstances exist.

That being said, the inquiry does not end here. The Court having found the existence of extraordinary circumstances, presuming such finding is required, must determine whether the appointment of petitioner grandmother as guardian of the child is in the child's best interest. "When considering guardianship appointments, the infant's best interests is paramount." In the Matter of Bianca B. v. Great Neck Union Free School District, 2012 WL 2913514 (2d Dept. 2012); In the Matter of Ashley W., 85 AD3d 807, 809, 925 N.Y.S.2d 551, 552 (2d Dept. 2011); SCPA §1707. Although the time period(s) in which the mother resided outside the home of the grandparents is unclear; it is clear that D.F. has always resided with his grandparents in Huntington Station . Further, as stated previously, the Court's in-camera with the child revealed that this child is deeply bonded with his grandmother, so much so that he regards her as his "mother-figure." Additionally, petitioner's husband, the maternal grandfather is the only "father-figure" this child has known. While Ms. M relocated with her husband and other three children to Medford, she and her parents mutually decided that it was best for D.F. to remain with his grandparents.

The School District opposes the issuance of an order of guardianship to petitioner, alleging that petitioner only filed her petition for guardianship after the petitioner appeared at the School District's residency hearing and the School denied petitioner's request to enroll the child in the District. The School District further contends that Ms. M, the child's mother, is truly his primary caretaker and wants the child to remain in the District so that D.F. could continue to receive the special education services that the District provides. Based upon the timing of the events that occurred in this case, it is obvious that petitioner filed the guardianship petition after her request for her grandson to remain in the School District was denied; however, the Court finds that petitioner's application for guardianship was not based upon continuing the child in the School District, but was based upon continuing the child in her home with her and her husband who have assumed a parental role with the child since birth. The School's contention that Ms. M was prompted to give guardianship to her mother so that D.F. could continue to receive the District's special education services is without merit. Ms. M readily enrolled her other three children in the Longwood School District and receives special education services for her younger [*6]son there. There is nothing to suggest that she would be unable to do the same for D.F., if she saw fit.

The Court recognizes that there are situations in which parents consent to an order of custody or guardianship of their child in favor of another for the sole purpose of availing themselves of the educational services of a particular school outside their district. Clearly, such applications are improper attempts to usurp the School District's authority to determine residency and entrance to their District; however, the instant matter is simply not such a case. Ms. M is not seeking to gain entrance to another District which she deems more appropriate, but is seeking to maintain D.F.'s living situation and his relationship with his "parental-figures", his grandparents, as it has always been.

While generally, there is a reluctance of courts to separate siblings, See In the Matter of Meyer v. Rudinger, 285 AD2d 714, 716, 727 N.Y.S.2d 204, 206 (3d Dept. 2001) citing Ebert v. Ebert, 38 NY2d 700, 704, 382 N.Y.S.2d 472, 474 (1976), the Court must determine best interests based upon the totality of circumstances. See In the Matter of Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 N.Y.S.2d 893, 896 (1982); In the Matter of Bowe v. Robinson, 23 AD3d 555, 556-557, 805 N.Y.S.2d 91, 93 (2d Dept. 2005). Ms. M gave birth to D.F. at sixteen years of age and was fortunate to have parents who lovingly provided the constant emotional, physical and financial support required to raise a child. Understandably, most sixteen year olds are ill equipped to assume such a responsibility and the Court finds that petitioner and her husband provided that support for this child. This Court will not disturb the child's stability in his grandparents home or "the parent/ child" type relationship that has developed between D.F. and his grandparents since birth. The Court finds that such a relationship between petitioner and her grandson likely developed because petitioner assumed the role of primary caretaker throughout the years due to Ms. M's young age when she gave birth to D.F. . This was not an attempt by Ms. M or petitioner to usurp the authority of the School District to determine residency and admission of D.F. to the District, but rather their desire to maintain the continuity and stability in the child's life by maintaining D.F. in the home with his grandparents who have assumed the parental role for their grandson. Furthermore, the Court affords due respect to the decision of Ms. M and her parents to work together to make decisions which they believe will be in D.F.'s best interests.

In accordance with the foregoing and in concurrence with the recommendation of the Law Guardian, the Court finds that based upon the totality of the circumstances, that it is in the best interests of the subject child, that guardianship of him be granted to petitioner grandmother.

This constitutes the final order of the Court.

Dated: October 5, 2012

_________________________________________

J.F.C.

Pursuant to §1113 of the Family Court Act, "an appeal must be taken within 30 days of receipt of the order by appellant in court, 35 days from the mailing of the order to the appellant by the clerk of the court, or 35 days after service by a party or law guardian upon the appellant, whichever is earliest." [*7]