Matter of L. v P.

[*1] Matter of L. v P. 2008 NY Slip Op 52634(U) [22 Misc 3d 1114(A)] Decided on November 14, 2008 Family Court, Kings County Hepner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 29, 2009; it will not be published in the printed Official Reports.

Decided on November 14, 2008
Family Court, Kings County

In the Matter of a Proceeding pursuant to Articles IV and VIII of the Family Court Act for an orders filiation and support for the child TERRELL P. Lisa L., Petitioner

against

Kelvin P., Respondent



XX-09



André Ramón Soleil, Esq., for the Petitioner

Soleil & Co., P.C.

241 Taaffee Place, Suite 407

Brooklyn, New York 11205

Jacqueline Bullock, Esq., for the Respondent

26 Court Street. Suite 2401

Brooklyn, New York 11242

Vivienne Hewitt, Esq., for the Child

26 Court Street, Suite 2506

Brooklyn, New York 11242

Paula J. Hepner, J.

The instant paternity petition was filed on October 5, 2005 to declare the Respondent the legal father of the Petitioner's son, T. P. who was born on in 1991. Two documents were annexed to the petition: a birth certificate for Terrell in which the box for the father's name is blank, and a DNA test result from Identigene®. When the Respondent appeared before Support Magistrate Katerina Contaratos, he requested a blood test claiming he already knew he was not the child's father from a privately-arranged paternity test which excluded him. The Petitioner objected and argued that the Respondent should be estopped from obtaining a [*2]court-ordered genetic marker test and from denying paternity because he held himself out as the child's father for thirteen years. The Support Magistrate referred this matter to the undersigned to determine whether the doctrine of equitable estoppel should be applied. Counsel was assigned to represent the child and thereafter she also raised the estoppel defense on behalf of her client. At trial, the Petitioner testified in her own behalf and called two friends, Crystal Saunders and Felicia Annette Carter, and her husband, Jason L., as witnesses. The Attorney for the Child presented the testimony of her client and introduced into evidence one birthday card. The Respondent testified in his own behalf and called Laura Davidson, his sister, and Joseph Richardson, his friend, as witnesses.

The doctrine of equitable estoppel was first applied in paternity matters in Sharon G.G. v Duane H.H. (95 AD2d 466 [3rd Dept 1983] affd 63 NY2d 859 [1984]).Paternity by estoppel is codified in Sections 418(a) and 532(a) of the Family Court Act. Section 418(a) of the Family Court Act provides that "when paternity is contested, the Court shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests." The statute, however, prohibits courts from ordering such a test if it finds "that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman." In Shondel J. v Mark D. (7 NY3d 320, 326 [2006]), the Court of Appeals noted that "paternity by estoppel is secured by this statute in New York" and is a law that "imposes the doctrine as a matter of fairness." Writing for the majority, Justice Rosenblatt explained the purpose of "equitable estoppel is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position" (Shondel J., 7 NY3d at 326). The defense of equitable estoppel safeguards a strong relationship that has developed between a child and a person who has assumed a parental role whether by design or acquiescence and "an estoppel defense may also be invoked where the failure to properly assert a right has given rise to circumstances rendering it inequitable to permit the exercise of the right after a lapse of time" (Ettore I. v Angela D., 127 AD2d 6, 12-13 [2d Dept 1987]). As the case law has evolved, the doctrine can be used in an "offensive posture to enforce rights or a defensive posture to prevent rights from being enforced" (Nassau County Dept. of Social Services ex rel. K.D. v B.W., 16 Misc 3d 1128(A) [Fam Ct Nassau County 2007]). In either instance, equitable estoppel is imposed "to protect the status interests of a child in an already recognized and operative parent-child relationship" (Matter of Baby Boy C., 84 NY2d 91, 102 [1994]; Juan A. v Rosemarie N., __AD_ , 2008 NY Slip Op 01820 [2d Dept 2008]; Antonio H. v Angelic W and George H., 51 AD3d 1022 [2d Dept 2008]); Nathalie N. v Jerome W., 29 AD3d 912 [2d Dept 2006]; Sarah S. v James T., 299 AD2d 785 [3d Dept 2002]). For this reason, the statute contemplates that courts "will consider paternity by estoppel before it decides whether to test for biological paternity" (Shondel J., 7 NY3d at 330). When applied, the estoppel doctrine precludes a putative father not only from obtaining genetic marker testing but also from denying paternity, which means he is prevented from challenging the paternity petition with evidence to contest the approximate date of conception, to show non-access or non-exclusive access during the period of conception, to assert contraception was used, to offer admissions or statements by the mother about another man's paternity, to raise the presumption of legitimacy, or to establish fraud or deceit by one of the parties. [*3]

In considering the applicability of the doctrine of equitable estoppel in a paternity proceeding, the predominant concern is the best interests of the child (Greg S. v Keri C., 38 AD3d 905 [2d Dept 2007]; Vernon J. v Sandra M., 36 AD3d 912 [2d Dept 2007]; Ellis v Griffin, 308 AD2d 449 [2d Dept 2003]; Charles v Charles, 296 AD2d 547 [2d Dept 2002]; Sarah S. v James T., 299 AD2d at 785; Carol S. v Gerard D., 276 AD2d 377 [1st Dept 2000]; Eugene F.G. v Darla D., 261 AD2d 958 [4th Dept 1999]). Resolution of " the issue [equitable estoppel] does not involve the equities between the two adults; the case turns exclusively on the best interests of the child...the child is entirely innocent and by statute the party whose interests are paramount" (Shondel J., 7 NY3d at 330-331).

The Second Department has held in instances where there was sufficient evidence before the Court to determine what is in the child's best interests, the court may make a determination regarding equitable estoppel without a hearing (Vernon J. v Sandra M., 36 AD3d at 312). In this case, a full hearing was held. The Second Department held in Isaiah A.C. v Faith T. (43 AD2d 1048, 1049 [2d Dept 2007]), that "the issue of the best interests of the child normally should be determined after a hearing joining all necessary parties," and even though the mother's husband was not joined as a party in this proceeding, Jason Lucas did appear and testify about the nature of his relationship with the child.

In order to prevail, the party raising the defense of equitable estoppel must prove each of its elements, that is, "conduct, reliance and harm" (C.M. v S.H, 16 Misc 3d 217 [Fam Ct Nassau County 2007] citing Shondel J., 7 NY3d at 326) and demonstrate that invocation of the doctrine would be in the best interests of the child (Dowed v Munna, 306 AD2d 278 [2d Dept 2003]; Charles v Charles, 296 AD2d at 549). Once the party asserting the defense "makes a showing of the operative facts which would support an equitable estoppel, the burden of proof then shifts to the [the party opposing it] to show why an estoppel should not be applied in the best interests of the child" (Shondel J., 7 NY3d at 334; Sharon G. v Duane HH and Michael GG, 95 AD2d at 469, aff'd 63 NY2d 859 [1984]; Ettore I., 127 AD2d at 8 & 16; J. v B., 15 Misc 3d 1132(A) [Fam Ct Onondaga County 2007]; Avice M.G. v Michael G., 6 Misc 3d 1035(a) [Fam Ct New York County 2005]; CSS o/b/o R.B. v W.L., 9 Misc 3d 973 [Fam Ct, Nassau County 2005]). The party asserting estoppel must establish by clear and convincing evidence that s/he is entitled to invoke the doctrine (Bergner v Kick, 85 AD2d 911 [4th Dept 1981], aff'd 56 NY2d 795 [1982];[FN1] Department of Social Services o/b/o J.Y. v D.V. (15 Misc 3d 1122(A) [Fam Ct Nassau County 2007]; Suffolk DSS v Grassi, 6 Misc 3d 1028(a) [Fam Ct Suffolk County 2005]; John P. [*4]v Vito C., 6 Misc 3d 1009(a) [Fam Ct Suffolk County 2004]). The credibility of the petitioner and the witnesses "is of paramount importance" in weighing the evidence by the standard of clear and convincing proof (Sandra S. v Larry W., 175 Misc 2d 122, 125 [Fam Ct Bronx County 1997]; See, Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, FCA §560-316).[FN2]

In making its assessment, "the evidence should be construed from the child's perspective" (K.J.P. v V.B., 16 Misc 3d 1131(A) [Fam Ct New York County 2007]) and the court "must assess the impact of the proceeding on the children" (C.M. v S.H, 16 Misc 3d at 221). When an estoppel defense is advanced, trial and appellate courts have identified various factors to be considered in determining whether the best interests of a child would be served by directing a paternity test. They include: "the child's interest in knowing, with certainty, the identity of his or her biological father; whether the movant seeks to prove or disprove his paternity; if the latter, whether the identity of others who may be proven to be the father is known or likely to be discovered, and if so, their willingness and ability to assume that role; the traumatic effect, if any, the testing procedure may have on the child; and the impact, if any, that continuing uncertainty may have on the father-child relationship, if testing is not ordered" (Prowda v Wilner, 217 AD2d 287, 291 [3d Dept 1995]; Matter of Anthony M., 271 AD2d 709 [3d Dept 2000]; Gutierrez v Gutierrez-Delgado, 33 AD3d 1133, 1134 [3d Dept 2006]) and, in addition to these, "the nature and extent of the existing parent-child relationship (Hammack v Hammack, 291 AD2d 718 [3d Dept 2002]) as well as "how long the child was treated as a child of the marriage, whether the respondent supported the child, whether he asserted a right to visit the child, whether he held himself out as the father of the child, and whether the child regards him as the father" (Time v Time, 59 Misc 2d 912 [Fam Ct New York County 1969]).

The evidence in the record to support and defeat the estoppel defense spans fourteen years of Terrell's life.

A.Conception to Age Two

The parties met at a barbeque given by a mutual friend in the neighborhood where they both lived in the Spring of 1990. They "went out mutually" for several months until they became intimate during July 1990. The Petitioner gave the Respondent keys to her apartment which he acknowledged. When the parties met, the Respondent was married so, as the Petitioner testified, "it was supposed to be one of those no strings attached" relationships. According to the Respondent their "dating relationship ended around September or December of 1990." There is no credible evidence to show the Petitioner was having sexual relations with anyone other than the Respondent during this time.[FN3] [*5]

The Respondent lived at 78 Cambridge Place in his parent's home until his marriage in 1987. His marital home was at 3010 Clarendon Road and initially maintained he lived at that residence until his divorce in 2006. During those years he returned to 78 Cambridge Place "every other day" but sometimes he would miss a week because of his job. After the divorce from his first wife, he took an apartment at 404 Willoughby Street. When the Respondent remarried in 2004, he moved from Willoughby to 816 New York Avenue. On re-cross, the Respondent identified the mistake in these dates and acknowledged that he was divorced in 1995. Both Joseph Richardson [FN4] and Laura Davidson [FN5] testified the Respondent moved out when he first married and returned thereafter only to visit, never to live. The Petitioner believed that the Respondent was living in his mother's home because that is where she would see him before he went to work and after he came home. On cross-examination she acknowledged that he could have been just visiting his mother and family. She admitted that the Respondent was living on Willoughby Street when Terrell was "between two and three" and the Respondent's testimony confirms this. Terrell recalled that the Respondent lived at "granny's house" and had his own room there. Terrell remembers that the Respondent had his own house in downtown Brooklyn and then he moved back to "granny's house" between the time he was in kindergarten and third grades.

When the Petitioner became pregnant, she told the Respondent and his family. She had a baby shower but the Respondent did not come. He did not attend any prenatal care with her nor any pediatric appointments after the child was born. The Respondent did not provide any insurance coverage for the child's medical care. The Respondent was at work when the Petitioner went into labor and was admitted to the hospital as well as when she and the baby were discharged. The Respondent did not visit her during the five days she was in the hospital [FN6] and he did not sign an acknowledgment of paternity because he was not there. When the Petitioner was ready to leave the hospital, the Respondent's mother Mattie P. and his sister Laura Davidson picked her up and brought her home, and one to two days later, they came to visit her and the baby.

The Petitioner gave Terrell the Respondent's last name because "that's the name I wanted [*6]him to have." When the Respondent asked her how the child got his name that is what she told him. She said he did not tell her he didn't want the child to have his last name nor did he indicate any reluctance to giving the child his surname. On cross-examination, the Petitioner conceded the Respondent did not give her permission to give the child his surname. On the first day of the Respondent's direct testimony he denied they ever discussed giving Terrell his family name. On the second day of his direct testimony, he corroborated the discussion as the Petitioner described it and recalled that it took place "like a week after the christening." In spite of wanting the child to have the Respondent's last name, the Petitioner did not make any attempt to identify who Terrell's father is or have the Respondent's name put on the child's birth certificate.

In the first month of Terrell's life, the Respondent came to the Petitioner's home at 61 Cambridge Place three or four times to see her and the baby.[FN7] He stayed for maybe an hour. The Respondent did not deny this. The Petitioner said he "wouldn't hold him cause he said he don't hold little babies, he never hold little babies." After that, the Petitioner "just wanted to be near him," so she would go across the street to 78 Cambridge Place with Terrell and spend time with the Respondent. Laura Davidson confirmed that the Petitioner would bring the child over to the family residence.

From "day one," the Petitioner said she heard the Respondent refer to Terrell as "my son" when speaking with his friend, Joseph. When Terrell was at least one year old, the Petitioner claimed she heard the Respondent refer to Terrell as "my son" when speaking with one of his co-workers, Mr. White. The Petitioner said she also heard the Respondent refer to Terrell as "his son" when speaking to his mother, Mattie, and sister Laura. Laura Davidson denied that her brother referred to Terrell as his son and testified that he denied paternity.[FN8] The Respondent [*7]denied that he has ever referred to Terrell as "my son" or introduced him to anyone as such.

When Terrell was six or seven months old, the Petitioner said his first word was "Da-Da." Laura Davidson confirmed that she heard Terrell refer to her brother as "Daddy" over the course of his entire life and admitted that Terrell was not "told by anyone not to call him Daddy." She acknowledged that her brother responds when Terrell calls him, "Daddy." She has never heard her brother "correct Terrell when he calls him Daddy." Terrell acknowledged that up until their last conversation in 2005, he always referred to the Respondent as "Daddy" or "my father" and said the Respondent never told him not to call him that. The Respondent admitted in his direct testimony that Terrell addresses him as Dad and that he never told him not to do that. On cross-examination, however, the Respondent changed his testimony to disclaim that Terrell ever called him Daddy except when he was younger, meaning before the age of six.

Sometime between nine months and a year old, Terrell was christened. The Petitioner claims she invited the Respondent but he denied he was invited and learned of the christening through his mother. Both parties agree the Respondent was not present for the ceremony. Laura Davidson and her husband accepted the role of godparents. The Respondent did not know his sister was to be the godmother and claims to have learned this after the christening was over and was "kinda" angry about it. The Petitioner admitted that she decided who Terrell's godparents would be without any input from the Respondent. Laura Davidson "embraced Terrell as a member of the P. household" because the Petitioner told her that he is her nephew. Terrell refers to the Respondent's sister and her husband as "Aunt Laura" and "Uncle Ernie" which Laura Davidson acknowledged. "A little after the christening," the Respondent told his mother that he is not the father of the child.

Terrell refers to the Respondent's mother as "granny." When the Petitioner returned to work, she babysat him "every day" for about eighteen months. The Respondent acknowledged that he would see Terrell at his mother's house when he visited. The Petitioner admitted she did not know how much time the Respondent would spend with Terrell given his work schedule. Terrell recollected that from kindergarten to sixth grade he would be at granny's house after school on a daily basis. However on cross-examination Terrell admitted that he had a baby sitter who took care of him after school "sometimes" and on other days he went to granny's house but it wasn't every day. He remembered moving from 61 Cambridge Place when he was in third or fourth grade and then visiting granny overnights on the weekends, two or three times a month. The Petitioner testified that for "almost two years straight," between the ages of eleven and thirteen, Terrell saw granny every day.

For the first two years of the child's life, the Petitioner testified the Respondent provided financial assistance when she asked him for money so she could purchase milk, pampers, baby items and foods for the child's special diet but "it wasn't consistent." The Respondent did not deny this. When the child was two years old, the Petitioner told the Respondent she wanted to receive financial help from him on a regular basis and was going to seek an order for child [*8]support, and he agreed to pay support voluntarily in the amount of $200.00 per month.[FN9] The Respondent paid this sum every month from the time Terrell was two years old until June 2005, when he was thirteen years old. The Petitioner would call Mattie P. or the Respondent's sister Laura Davidson to say she needed money because the Respondent was "working all the time." He would call the Petitioner to say he left the money with his mother or she would telephone the Petitioner and tell her to come pick it up. The Petitioner did not keep a log of the payments or give the Respondent receipts for them. The Respondent denied giving any money to the Petitioner and denied giving any money to his mother to give to her. He admitted giving his mother money but only as a "give back to them for taking care of me all the years." He said he learned his mother was giving money to the Petitioner when she testified to this at trial. The Petitioner filed this proceeding the same month she alleged the Respondent stopped making the voluntary payments. For this reason the Court cannot credit his testimony regarding the claimed payments.

B.Ages Three to Eight

Terrell attended elementary school at PS 161. The Petitioner claimed the Respondent would pick him up from school and take him back to granny's house. Between first and third grades, after the Respondent picked up Terrell after school they would go to his house on Willoughby Street. Laura Davidson was not aware of her brother doing this. Terrell confirmed this and recalled the Respondent came about twice a month and they went to his apartment in downtown Brooklyn. He would "do his homework in the living room or watch TV, eat Jolly Ranchers" and then the Respondent would drive him home. Terrell also recalled the Respondent taking him to the barbershop twice a month from kindergarten until he was thirteen. The Respondent denied ever picking Terrell up after school, bringing him to this apartment or taking him for any haircuts.

The Petitioner and the child each testified the Respondent attended Terrell's kindergarten graduation from PS 161. Crystal Saunders is the Petitioner's niece and she has known her "all [her] life." Ms. Saunders observed the Respondent at Terrell's graduation from 5th grade and afterwards saw him take the Petitioner and Terrell to China Buffet to celebrate, though he did not stay. Ms. Saunders has personal knowledge of this because she has a son who was in the same graduating class as Terrell and was present. The Court credits Ms. Saunders's testimony even though the Petitioner did not mention a fifth grade graduation in her testimony at all and did not relate any of these details in the belief that they confused the year.

Jason Lucas described the Respondent's involvement and contact with Terrell between 1995 and 2003.[FN10] According to him, the Respondent came over to the Petitioner's house and she [*9]introduced them. He observed him "hug Terrell and give him a bag of clothes." He was aware of the Respondent coming to the Petitioner's home one other time and visiting Terrell in his bedroom when Terrell was five years old and could not go downstairs because he had broken his leg and was in a full cast. Jason Lucas recalled a series of eight or nine encounters with the Respondent during 1995 and 1998 when they would see the Respondent while they were walking on Fulton Street and Terrell would call out, "Daddy." Terrell denied ever seeing the Respondent on Fulton Street when he was with Mr. Lucas. The Petitioner and Jason Lucas moved to 82 Ridgewood in November 1999. Because neither Terrell or the Petitioner mentioned these rather significant events when they testified, and because Terrell denied having contact with the Respondent on Fulton Street, the Court does not find Mr. Lucas's testimony reliable and gives it no weight.

The Respondent took Terrell to Disney World when he was four going on five years old (1995-1996) according to the Petitioner and six years old according to Terrell and the Respondent. Laura Davidson explained that initially her son Lance was going to go but when he got sick, the Respondent took Terrell instead. The Respondent claimed that Laura Davidson "kind of talked me into taking Terrell." The Respondent explained that the arrangements were made by his sister who spoke to the Petitioner "but it was like me talking to her through my sister." Laura Davidson denied having a role in this. Terrell understood that they went to Disney World to "meet [the Respondent's] girlfriend and their kids" and no one else from the Respondent's family came along on this trip. He remembered staying at the girlfriend's house. The Respondent said they stayed "at a friend of my mother's in Kissimmee." He acknowledged that a lot of kids were present. The Petitioner introduced into evidence five photographs of the Respondent with the child taken at Disney World during this trip.

In 1999, the Petitioner entered into an agreement with the Respondent not to claim Terrell on her taxes for a number of years so that he would be able to claim the child. The Respondent introduced into evidence a photocopy of IRS form 8332 which corroborates the Petitioner's testimony.[FN11] The Petitioner testified that in 2000, 2001 and 2003 she did not claim Terrell as a dependent on her tax returns. The Respondent denied they made such an arrangement and said he learned this only when the IRS form was introduced at trial. However, when asked if he put his name on the form he replied, "I don't recall doing that." He did acknowledge it was his social security number which he claimed he never gave to the Petitioner.

One time for his birthday, Terrell received a card addressed "To Terrell." The greeting reads, "Son, on your birthday and all year through, wherever you go, whatever you do, love will always be there with you. Have a Wonderful Birthday." The card was signed "Love always Daddy." Laura Davidson gave the Respondent this card "and asked him to sign the card and give Terrell a gift or something for his birthday." The Respondent asked her, "Why?" and she said, "Because it's his birthday." She left the card with her brother. After he signed the card and he gave it back to her, she left it with her mother "in case Terrell stopped by." The Respondent [*10]admitted the handwriting on the card was his. He was asked if, at the time he signed the card, he realized it was going to Terrell and he answered incredibly, "No, I didn't." When asked what he meant when he wrote "love always daddy," he said "he didn't mean nothing by it" and admitted "it was a lie because I didn't mean it."

Terrell came to the Respondent's family home around the major holidays like Thanksgiving, Christmas and New Year's. Laura Davidson admitted that the Respondent also came over at these times but she did not observe the Respondent with Terrell. The Petitioner admitted she did not have any pictures to memorialize these occasions. She also admitted she did not know if the Respondent spent any time with the child during these visits. The Petitioner recalled the Respondent giving Terrell a bag of clothes and a Playstation 2. Terrell recollected the last gifts the Respondent gave him were Playstation 2, two games, and three outfits from Old Navy. Terrell reported the Respondent got him "birthday gifts, holiday gifts" throughout his "whole lifetime." If Terrell wanted sneakers or clothes, he would call the Respondent and he would buy them. When Terrell was between six and eight, the Respondent bought him a mountain bike even though it was not a special occasion and taught him to ride it. The Respondent denied giving Terrell any gifts for any occasion.

Terrell is acquainted with members of the Respondent's extended family. The Respondent has two brothers, one who lives at 78 Cambridge Place. Terrell knows his name and the names of his two children. Terrell addresses him as "uncle," which Laura Davidson confirmed. Terrell also knows the Respondent's other brother by name and is aware he has children but does not know them. Laura Davidson's son Lance is the same age as Terrell and she also has a daughter and two other sons whom Terrell knows. Terrell refers to Lance as his cousin which Laura Davidson acknowledged. Terrell and Lance and Tyler continue to be in touch despite the events of June 2005.

When Terrell was eight years old (1999), "grannie" took him on a family trip to South Carolina, where Terrell met other members of the Respondent's family. Terrell recalled that they traveled in two vans. He rode in one and the Respondent rode in the other. He could not recall if the Respondent stayed the whole week but he remembered seeing him "a couple of times" on the trip. The Respondent denied participating in this trip and Laura Davidson said her brother did not go along. In 2004 the family made a trip to Maryland over Christmas to see the Respondent's sister Stephanie and Terrell went along. Terrell refers to her as "Aunt Stephanie" and her three children as his cousins whom he knows by their first names. Terrell has also seen her when she comes to New York to visit her mother. Terrell communicates with Stephanie's youngest son through MySpace pages. Laura Davidson confirmed these things. The Respondent denied going on the Maryland excursion. The Respondent claims to have objected to his mother taking Terrell on these trips and told his mother "that's not my son and he shouldn't be a part of the family." The Respondent admitted his mother told him that he should have had a DNA test to make sure the child wasn't his."

C.Ages Nine to Fourteen

Between 2001 and 2003 Jason Lucas said the Respondent came to their new home at 82 Ridgewood on two occasions, once for Terrell's birthday in October 2003 and once for Christmas eve in 2004 when he brought Terrell a remote control truck. The Respondent denied each of these events. In light of Mr. Lucas's prior testimony which the Court viewed as unreliable, the [*11]Court does not credit this testimony.

Terrell attended the Respondent's wedding on April 30, 2004. On direct examination the Petitioner said the Respondent asked her if Terrell could be present but on cross-examination she said the Respondent "may have" asked her and expressed uncertainty about who spoke to her and invited him. Terrell was very clear, however, saying the Respondent called him on the phone and asked if he could come to the wedding. The Respondent denied inviting Terrell to the wedding and said he simply came along with his mother Mattie and Lance. The Petitioner said she sent Terrell over to Mattie P.'s house in a cab on the day of the wedding but Terrell remembered that his "parents" dropped him off at granny's house and from there the family walked to the church where the wedding was. After the wedding they had a little dinner at the P. family home. The Petitioner and her husband picked Terrell up from there later in the evening.

On three or four occasions in the year after the wedding, Terrell testified he visited the Respondent and his wife "Cheryl" in their home. The Respondent said his wife's name is Roschell and is not known as "Cheryl." Generally Terrell would go for the day but twice he "spent the night over." One of these times was after a football practice when the Respondent picked him up and brought him to the house. The Respondent denied that Terrell was ever at this house and that he ever stayed over. The Respondent denied he ever picked Terrell up from football practice but admitted that Terrell was at his house on the day the swab was done and claimed that the Petitioner brought him over. The Petitioner testified she did not know where the Respondent lived after he remarried.

While Terrell was at the Respondent's home, a person Terrell thought was the Respondent's friend came over and took a swab of Terrell's mouth with a Q-tip. The Respondent explained to Terrell it was for "insurance" purposes. Terrell went home and told his mother what happened. The Petitioner told Terrell it was a DNA test and the insurance excuse "was a lie." Terrell did not know what a DNA test was and his mother explained it to him. Terrell testified he was "in shock" when he heard this and asked his mother, "Why would he do that?" This was the last day Terrell saw the Respondent. About a week later, according to Terrell, and about three to four weeks later, according to the Respondent, he telephoned the Petitioner after receiving the results. The Petitioner testified this was the day before Terrell's 14th birthday. The Respondent informed her of test results and she yelled at him, "Why did you do that, who made you do that?" According to the Petitioner he said to her, "you ruined my life" and Terrell "is not my son." Terrell overheard his mother screaming and yelling on the phone and when she hung up, she related the conversation to him.

One week later, Terrell telephoned the Respondent to say, "Why did this have to happen?" and the Respondent told him that he "should talk to your mother to see who your real father is, I'm not your father." Terrell said he cried at hearing this and said, "All right, I'll go ask her" and hung up the phone. The Respondent remembered the conversation opening with Terrell telling him his mom told him he wasn't his father. The Respondent told Terrell he needed to talk with his mom about that because he had "the results from the test they took."[FN12] He acknowledged [*12]that he told Terrell what the test results were and then Terrell hung up. This was the last time they spoke.

ANALYSIS

The Court finds that the evidence in the record establishes the elements of an estoppel, specifically that the Petitioner relied upon the Respondent's conduct toward the child to her detriment. Petitioner has made a showing of the operative facts which would support an estoppel and she has met her burden with clear and convincing evidence. The subtext underneath the conflicting testimony from both parties is this. Three years after the Respondent married his first wife, he had an affair with the Petitioner in 1990 which lasted several months but cooled off before the child was born. When the affair was over, the Respondent's contact with the Petitioner ceased. The Petitioner was not ready to let the go of the Respondent or the relationship and, as a consequence of her pregnancy, she was able to ingratiate herself with the Respondent's family. After the baby was born, Terrell became a part of the Respondent's family both as a result of the Petitioner's actions and Mattie P.'s affections for her grandson. The Respondent did not assume a paternal role by participating in prenatal care, attending the Petitioner's baby shower, coming to the hospital, assisting with the baby's daily care or bringing the child to his family. Although he questioned his paternity and maintained his distance from the child, both physically and emotionally, the evidence shows he did accept some financial responsibility, permitted the child to call him "Daddy," and had regular, albeit limited, contact with the child from which a marginal but nonetheless viable, parent-child relationship developed. Terrell looked up to the Respondent, yearned for his companionship and loved him unconditionally, as only innocent children can. More significant, however, is the familial bond the Respondent observed forming between Terrell and members of his extended family and, with respect to them, a very strong, viable parent-child relationship came into existence which the estoppel doctrine also protects. In Sarah S. v James T. (299 AD2d at 786), the Third Department held the trial court appropriately imposed an estoppel where the child "visited the respondent's parents regularly, calls them grandma' and grandpa,' and has a nephew-uncle relationship with respondent's brothers, one of whom is his godfather." In Jose F.R. v Reina C.A. (46 AD3d 564 [2d Dept 2007]), the Second Department upheld an estoppel based, in part, because "the child had developed relationships with members of the petitioner's family."

When the Respondent told his mother that Terrell was not his son, she advised him to get a blood test but he did nothing. When he had conversations with his sister about the child not being his and was advised what to do by his sister, he did nothing except to tell his mother and sister "not to get involved in this situation." When he was angry about his sister and her husband being named the godparents, he did nothing. Despite his request that they not make Terrell a part [*13]of the family, he understood that his mother and sister continued to maintain a relationship with Terrell because "they didn't want to turn their back on the child...and were going on what Lisa told them, that Terrell was my son." He admitted he never told the Petitioner to stop bringing Terrell to his mother's home. In Shondel J. (7 NY3d at 331), the Court of Appeals held that a "man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child or insist on a scientific test of paternity before initiating a parental relationship." In this case, the Respondent appears to have chosen the former.

The Respondent blamed his first wife and his marriage for his failure to act but that excuse is not a satisfactory explanation beyond 1995. He explained that "Lisa was saying that Terrell was my son. I was married at the time, so I didn't want no conflicts between the two parties." For thirteen years the Respondent let this situation slide and did not take any action until his second wife demanded he resolve the paternity issue. When asked what made him get the blood test when he did, he said, "Because I wanted to clarify everything with my wife now and myself that he was really my child." In explaining why he waited until 2005 the Respondent said, "Because I really wasn't speaking to the mother or the child, and once I got remarried my wife, knowing that the child used to go to my mom's house, and the relation with my sister's son, so she was like, Listen, you need to get some clarity in this whole situation.'"

The Respondent's case against the estoppel and the paternity petition rests on six principal grounds. First he argues that the Petitioner, having perpetrated a fraud upon him, his family and now the court, does not come with clean hands which is a prerequisite to invoking an estoppel. There is no evidence to support the Respondent's position that the mother intentionally deceived him. Even if she had, an estoppel will not be defeated if, after being fraudulently deceived by a child's mother into erroneously believing that he is the father of a child, he holds himself out to be the father and permits a viable and ongoing parent-child relationship to come into existence (Nathalie N v Jerome W, 29 AD3d 913).

Second, the Respondent argues the evidence demonstrates that the Petitioner cannot have a reasonable belief that he is the father of Terrell based on the facts and circumstances surrounding the pregnancy, her fourteen year delay in filing the paternity petition and the results of the private DNA test. There is no evidence in the record to show that the Petitioner was sexually active with anyone else at the time of conception nor that anyone other than the Respondent fathered this child. Because the Respondent voluntarily provided child support to the Petitioner for thirteen years, she had no need to seek a paternity declaration until 2005 when he ceased giving her money after the unauthorized DNA test was done.

Third, the Respondent argues the record is insufficient to show that he held himself out as Terrell's father. In light of this fourteen year history of Respondent paying support, permitting the child to call him Daddy, attending the child's graduations, taking the child to Disney World, and asking the child to come to his wedding, the record clearly shows the Respondent "held himself out" and his assertion to the contrary is incomprehensible.

Fourth, the Respondent argues that the Petitioner manufactured this history between Terrell and himself and has pressured Terrell in aiding and abetting her in perpetrating this fraud. The Respondent relies on his litany of denials to show the evidence offered by the Petitioner was fabricated but this worked more to his detriment than to hers since the impression this tactic [*14]conveys is one of incredulity. There is sufficient corroboration in the record of the facts asserted by the Petitioner to overcome this challenge. Terrell's sad countenance and the painful, weepy quality to his voice when he testified, along with the answer he gave for why he was in court,[FN13] enables the Court to conclude his testimony was not a rehearsed fabrication.

Fifth, the Respondent argues that the mother's husband is the person who has fulfilled a parental role and is really the person with whom Terrell has a father-son bond. The Petitioner and her husband moved in together in 1995 and married in 1999 when Terrell was eight years old. The Petitioner testified that her husband "looks out for Terrell" but her son "says he loves Kelvin regardless of my husband being in the house." This was obvious when Terrell testified. He related how he would send the Respondent text messages or would call and leave messages saying, "I called you Dad...We could just go hang out," or "I want to see you...I miss you...I love you." On cross-examination, the Petitioner testified that although Terrell refers to Jason Lucas as his "stepfather," she admitted her son does call him "Daddy." Jason Lucas, acknowledged that Terrell called him "Dad" or Jason in 1995 but by 1999, Terrell only called him "Dad." When he testified about who brought him to the Respondent's family home on the day of the Respondent's wedding, Terrell referred to the Petitioner and her husband as "his parents" and once referred to Jason Lucas as his "father." Given the Respondent's physical and emotional absence over the past three years, and Terrell's full-time residence with Jason Lucas for ten years, it is only natural that he would develop a relationship with him as well. However, on the facts before the Court, the Respondent failed to establish that "a determination of paternity in his favor would disturb any relationship the children may have had with any other father figure" (Ruby M.M. v Moses K., 18 AD3d 471 [2d Dept 2007]). The Respondent failed to show that Terrell ever considered Jason Lucas to be his father (DSS o/b/o Molinari v Connolly, 303 AD2d 754 [2d Dept 2003]), nor is there evidence to show that Jason Lucas's role in Terrell's life exceeded that of a stepfather. Moreover, Terrell was told the Respondent was his father from an early age and continued to believe this for fourteen years.

Sixth, the Respondent argues that any bond which may have existed between himself and Terrell has been destroyed so the purpose of applying the estoppel cannot be achieved. Having surreptitiously obtained an extra-judicial DNA test and having informed the child of the test results, and thereafter having severed all contact with the child, the Respondent does not come before this Court with clean hands either. The Respondent is responsible for the demise of the child's affections toward him and he should not benefit from his own callous conduct in advancing his interests at the expense of the child's. In Sarah S. v James T. (299 AD2d at 786) an estoppel was not defeated by the Petitioner's disclosure of the results from a privately-obtained blood test to the child. In Shondel J., (7 NY3d 331), the Court of Appeals held that "a man cannot defeat the statute simply by severing all ties with the child."

DECISION

In analyzing the evidentiary record, the Court has had the singular ability to observe the in-court testimony of the parties and the witnesses throughout the court proceedings, specifically their behavior, attitude, the manner in which they testified, the substance and tone of their [*15]testimony, and was able to arrive at an overall assessment of their credibility. Having weighed the testimony, character and temperament and sincerity of the parties involved and made inquiry into and examination of the facts and circumstances of the case and the surroundings, conditions and capacities of the persons involved in this proceeding, and having reflected upon the testimony and feelings expressed by the child; and having carefully and thoroughly considered the documents submitted into evidence, this Court finds that the Petitioner has established, by clear and convincing evidence, that the best interests of the child would not be served by granting the Respondent's application for DNA testing. Accordingly the Court finds that the Petitioner and the Attorney for the Child have proved, by clear and convincing evidence, that the doctrine of equitable estoppel should be invoked, in the best interests of the child, to preclude the Respondent from obtaining a court-ordered genetic marker test and to prevent the Respondent from denying paternity and that an order of filiation should be entered naming the Respondent as the father of Terrell P.

Dated: November 14, 2008E N T E R :

__________________________

Paula J. Hepner, A.J.S.C. Footnotes

Footnote 1: Bergner is a Fourth Department case involving real property where the defendants were equitably estopped from selling the land and constructing an apartment house. The Fourth Department held "The doctrine of equitable estoppel must be applied with great caution, however, when dealing with realty (Huggins v Castle Estates, 36 NY2d 427, 433), and a party claiming an implied easement must establish his right to relief by clear and convincing evidence." Under the holding of Mountain View Coach Lines, Inc. v Storms (102 AD2d 663,664 [2d Dept 1984]), which is still a binding precedent on the trial courts (People v Turner, 5 NY3d 476 [2005]; M.W. v S.W., 15 Misc 3d 1127(A) [Sup Ct Westchester County 2007]), the Second Department held that "the Appellate Division is a single statewide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule." This Court has found no appellate opinion other than Bergner that addresses this question thus, under the Mountain View Coach doctrine, this Court is required to follow the Fourth Department's holding.

Footnote 2: Judge Hunt, the author of the opinion in Sandra S., noted that the standard by which the person asserting the defense must be proved is not settled. He referenced the conflict between 28 Am Jur 2d §148, Estoppel and Waiver, which requires "facts that are clear, positive and unequivocal in their implication but need not be established by any more than a fair preponderance of the evidence" and 57 NY Jur 2d §72, Estoppel, Ratification & Waiver, which requires "clear, convincing and entirely satisfactory evidence leaving nothing to inference or speculation." This Court has found no trial or appellate opinion that addresses this conflict in the context of a paternity case or applied the lower standard of proof.

Footnote 3: Joseph Richardson met the Petitioner at the neighborhood barbeque and introduced the Petitioner and Respondent to each other. He said he knew "she had a boyfriend" and "thought she was engaged." He had a conversation with the Petitioner and she told him either "she has a boyfriend or she was engaged," he was not sure. He came to this conclusion because she "had a ring on" but then said he thought "she had a ring on." Mr. Richardson knew the parties were dating after the barbeque. Because this testimony is based on speculation, the Court gives it no weight.

Footnote 4: Joseph Richardson grew up in the house next door to the Respondent's childhood home and he has known him forty years. Mr. Richardson moved out of the neighborhood in 2007. He described them as "best friends growing up." Mr. Richardson was in the Respondent's first wedding in 1987. After the wedding Mr. Richardson knew the Respondent moved out of the paternal grandmother's home but he would return "maybe twice a month" to visit his family. Because this testimony conflicts with the frequency of visits described by the Respondent and also Laura Davidson, who estimated the Respondent came to visit "about twice a week," the Court gives this testimony little weight.

Footnote 5: Laura Davidson has resided in her childhood home at 78 Cambridge Place for thirty-nine years. Although her brother no longer lives there, she said he comes back to the home about "twice a week."

Footnote 6: Felicia Carter met the Petitioner when she was about twenty-two years old and has maintained a friendship with her for twenty-one years. Ms. Carter also met the Respondent at the sam barbeque where the Petitioner met him. She testified that she saw the Respondent at the hospital the day after Terrell was born and she had a brief conversation with him. This testimony is in direct conflict with the Petitioner's and the Court does not find it credible.

Footnote 7: Felicia Carter described the Petitioner as "more like a sister to me" than a "best friend" and said they were "always together." She would visit the Petitioner in the evenings two or three times a week and spend overnights at her house "almost every weekend" until she got a job in 1994 and moved. She testified the parties had a relationship that spanned two years during which they spent every weekend together. She recalled two incidents when she was visiting the Petitioner's home and the Respondent entered the home with the set of keys the Petitioner had given him. The Petitioner and Ms. Carter had "a falling out" over the Respondent coming into the home with the keys, once when she was wearing only underwear and once when she and the Petitioner were asleep and he came in very late at night and slept at the foot of the bed. The Respondent denied entering the Petitioner's home when Ms. Carter was not fully dressed but did not "recall" entering the home while she was sleeping. Ms. Carter testified that in the first two years of the child's life, the Respondent would come over to the Petitioner's home to see the child twice a week. She would observe the Respondent talking to the baby and holding him. Because the witness's testimony about the Respondent coming to the hospital and about him holding the baby is at odds with the Petitioner's testimony, the Court views Ms. Carter's testimony as unreliable.

Footnote 8: After the child was born Laura Davidson would observe the parties and the child together at 78 Cambridge Place but "there wasn't too much interaction." When her brother questioned his paternity of Terrell, which was "in a matter of months" after the child's birth, Laura Davidson advised him that he needed "to have a paternity test if he thinks that this is not [his] son." They had this discussion "throughout the years." Despite her brother's contention that he is not Terrell's father, Ms. Davidson did not reject Terrell and maintained a cordial relationship with the Petitioner. Even when the child was between six and ten years old, Ms. Davidson continued to receive Terrell in her home because she "had no reason not to." She admitted she believed Terrell was her brother's child in spite of what he was telling her. She described the Respondent's interaction with Terrell "as being hurtful" because there was "no physical interaction" between them. It hurt her to see "a child who wants his father but the father emotionally and physically would not be there for that child." She remarked that "you could see the sadness in his face that his father was never around."

Footnote 9: Joseph Richardson corroborated this aspect of the Petitioner's testimony. He became aware that the Petitioner had a child in the 1990's but he never saw the Respondent together with the Petitioner and Terrell. He claimed the Petitioner initiated a conversation with him in the early 90's about child support and the Respondent supporting Terrell. Mr. Richardson advised the Petitioner to "talk to him or try and reach out to him first before she goes to court."

Footnote 10: Jason Lucas met the Petitioner at a party in 1981. In the latter part of 1993 they met by chance one morning on the way to work and discovered they were employed by the same company. Mr. Lucas began driving the Petitioner from her babysitter to work. Mr. Lucas met the Respondent in July 1995 when the family was sitting on the stoop at 61 Cambridge Place.

Footnote 11: IRS Form 8332 is titled, "Release of Claim to Exemption for Child of Divorced or Separated Parents" in which the Petitioner agreed not to claim an exemption for Terrell for the tax year 1998 and for the future years of 1999, 2000, 2001, 2002. The Form was signed on March 11, 1999.

Footnote 12: Attached to the paternity petition is a copy of a report dated June 15, 2005 from the lab that did the test. The test sample was collected on June 11, 2005 and submitted to Identigene® on June 14, 2005. The DNA results were testified to by the Respondent, not for the truth of the matter asserted, but merely to explain what took place between the parties and Terrell and why. The Respondent did not present the testimony of anyone from the lab in an attempt to lay the foundational questions for admitting the test results such as who was tested, when and how the test was done, or what chain of custody was maintained, if any. Without this evidentiary foundation, the validity of the test results could not be established. There is case law, however, barring the admission of privately arranged DNA tests on other grounds (Brian B. v Dionne B., 267 Ad2d 188 [2d Dept 1999]; Barbara A.M. v Gerald J.M., 178 AD2d 412 [2d Dept 1991]; Barbara Ann W. v David WY, 183 Misc 2d 228 [Fam Ct Suffolk County 1999]; Doe v Roe, 2003 WL 21436125 [Fam Ct Nassau County 2003]). With the abundance of internet sites from which "home DNA kits" can be purchased, this has the potential to become an increasing problem for the courts.

Footnote 13: Terrell was asked why he came to court to testify and he said, "I'm here to prove that he's really my father and there's no need to deny me."