Clovis R.W. v. Sandra D.

195 A.D.3d 481

150 N.Y.S.3d 71

In the Matter of CLOVIS R.W., Petitioner–Appellant,

v.SANDRA D., Respondent–Respondent.

In the Matter of Sandra D., Petitioner–Respondent,

v.Clovis R.W., Respondent–Appellant.

14024-14024A

Docket No. V-00976/17, V-00977/17, G-38146/16, G-38147/16

Case No. 2019-05537

Supreme Court, Appellate Division, First Department, New York.

ENTERED June 8, 2021

Carol L. Kahn, New York, for appellant.

Leslie S. Lowenstein, Woodmere, for respondent.

Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn (Helene Bernstein of counsel), attorney for the children.

Kapnick, J.P., Singh, Moulton, Gonza´lez, JJ.

Orders, Family Court, New York County (Carol Goldstein J.), entered on or about December 9, 2019, which, after a hearing, appointed respondent the children's guardian, and amended order, same court and Justice, entered on or about December 9, 2019, which dismissed with prejudice the petition for a writ of habeas corpus, unanimously affirmed, without costs.

Petitioner father argues that respondent's permanent guardianship petition is facially insufficient for failure to plead unfitness or long-term economic abandonment. However, neither the statute nor the case he cites in support of this argument impose this pleading requirement (see Family Court Act § 661 ; Matter of A.W.J., 65 Misc.3d 1055, 112 N.Y.S.3d 450 [Fam. Ct., Bronx County 2019] ). Petitioner's argument that respondent lacked standing to bring a guardianship petition is also unavailing. Respondent established her standing by showing extraordinary circumstances pursuant to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976) (see Matter of Tomeka N.H. v. Jesus R., 183 A.D.3d 106, 109, 122 N.Y.S.3d 461 [4th Dept. 2020], lv denied 36 N.Y.3d 909, 2021 WL 1181389 [2021] ; Matter of A.W.J., 65 Misc.3d at 1059, 112 N.Y.S.3d 450 ). For most of their lives the children lived with respondent, who, with the help of her daughters, was their primary caregiver (see Matter of Caron C.G.G. [Alicia G.-Jasmine D.], 165 A.D.3d 476, 85 N.Y.S.3d 430 [1st Dept. 2018] ; Matter of Cornell S.J. v. Altemease R.J., 164 A.D.3d 1184, 84 N.Y.S.3d 451 [1st Dept. 2018], lv denied 32 N.Y.3d 913, 2019 WL 191970 [2019] ). Even when the children were with petitioner, he consistently had others care for them – most frequently respondent, who stepped in to provide for their education, health issues, and daily needs. The record amply demonstrates petitioner's parental unfitness and his inability or unwillingness to care for the children for an extended period of time. He made no financial contribution to the children's care, and indeed repeatedly sought financial assistance from respondent, even for such basic necessities as food. When the children were with him in Florida, his apartment was in deplorable condition, he elected not to enroll the older child in school, and he neglected to care for the younger child's severe dental problems. There is also evidence that he hit the older...