NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Decision and Order This proceeding raises the issue of whether the Family Court has the power and obligation to dismiss a guardianship petition for lack of standing and facial insufficiency. This Court concludes that it does have the inherent authority to dismiss guardianship petitions which are facially insufficient and must do so in its role as parens patriae in order to protect the subject child and limit guardianship petitions continued in this Court to those which adequately allege an interest in the welfare of the child (see Humphrey v. Humphrey, 103 Misc.2d 175 [Family Court, Steuben County 1980]["The petition must show on its face that the remedy asked for will be for the benefit of the child" and the court will take jurisdiction "when the petition shows patently that the welfare of the child may require it."]). The petition in this proceeding alleges next to nothing about the petitioner’s relationship with the subject child, and neither petitioner’s memorandum of law nor her sworn statements on the record provided a factual basis of a relationship to grant her standing to sustain the petition. Accordingly, the petition is dismissed without a hearing (see Matter of Linda S.M. v. Demetrius W., 160 AD3d 860 [2d Dept 2018][affirming dismissal of guardianship petition for lack of standing without a hearing where submissions failed to establish standing]). Procedural History On March 18, 2019, days after the death of the subject child’s mother, L.S. filed a petition seeking to be appointed guardian of the subject child, her cousin who came to live with her. Based on the passing of the child’s mother, the absence of a father listed on the child’s birth certificate, and the expressed wishes of the child through his attorney, this Court issued and has continued a temporary order of guardianship to L.S. so that she could take care of the child’s medical, educational and housing needs. On May 2, 2019, the purported father of the child filed a paternity petition and simultaneously K.S., a friend of the child’s mother, filed this petition seeking guardianship of the child. Attached to K.S.’s petition is a letter from the purported father, who is currently incarcerated, supporting “temporary parental rights” for K.S. K.S.’s petition for guardianship merely states she is the friend of the child’s deceased mother and that the reason she should be granted guardianship is that she lives in the same county as the child’s maternal half-brother who lives with his father. She provides no other context, details or information about her relationship to the subject child. On two separate court appearances on June 20, 2019 and July 31, 2019, this Court queried of all counsel and the parties whether K.S. had standing to pursue her petition. During the June 20th appearance, K.S. stated that the child knew her for years but provided vague answers about how many times she had seen or met the child and never stated she had cared for the child on her own. To the contrary, she stated she had only seen the child in the mother’s presence on a handful of occasions. Nor did she state any facts showing that she served as a primary caretaker or parent substitute at any point. During the July 31st appearance, K.S. suggested the deceased mother wanted her to be the child’s guardian, which is an assertion that cannot be verified. K.S. also suddenly claimed she had cared for the child on approximately four occasions, perhaps for a matter of weeks, including while the child’s mother was in the hospital. That assertion was disputed by L.S. who stated that the child had always lived in the Bronx and had not stayed with K.S. at any time. All counsel were given an opportunity to submit to the Court affidavits or affirmations on the issue of whether K.S. has standing to pursue her petition and whether it should be dismissed. Counsel for K.S. submitted a memorandum of law contending that K.S. has standing to proceed with her petition. K.S.’s counsel relies on FCA 661 and SCPA 1703 to argue that the black letter law provides no specific limitations as to who has standing to file for guardianship. Discussion The statutes controlling guardianship of a child are intended to allow any appropriate relative, caregiver or other suitable person to petition for permanent guardianship (see FCA 661; SCPA 1703). Indeed, Surrogate Court Procedure Act §1703, applicable to Family Court guardianship proceedings through FCA §661, provides that “[a] petition for appointment as a permanent guardian of an infant or child may be brought by any person on behalf of the infant or child” (emphasis added). However, the plain language of the statute is not and cannot be the entire analysis. Of course, it is strong public policy to protect children and therefore to allow for the widest pool of appropriate potential guardians so that children may have stability and their needs, such as medical and educational needs, may be taken care of by a permanent guardian. In other words, the statute’s use of “any person” should be read broadly to encompass not merely biological connection but also the entire diverse array of family and caregiver relationships that exist in humanity. In 2008, the Legislature amended the pertinent provisions of the Family Court Act and the SCPA (including supplying the “any person” language) in order to provide for permanent guardianship and to harmonize and clarify the various provisions for custody and guardianship. The Legislative history supports a broad but reasonably limited reading of SCPA 1703. For example, in referring to potential guardians covered by the amendments, the Legal Aid Society’s memorandum in support of the bill references “relatives and other suitable persons.” (Legal Aid Mem in Support, Bill Jacket, L 2008, ch 404). Similarly, the memorandum from the Office of Children and Families references “relatives,” “other caregivers,” and “other persons who are caring for children” (OCFS Mem in Support, Bill Jacket, L 2008, ch 404). This Court therefore reads a commonsense requirement into the statute simply necessitating a reasonable connection between the petitioner and child, whether through blood, legal relationship or other facts establishing caregiver or suitable person status. Further guidance may be found in standing requirements utilized in custody proceedings. Notably, although custody and guardianship proceedings may have been viewed as distinct in the past, in amending the various statutes concerning custodians and guardians, the Legislature found that “there is no substantive difference between the rights and responsibilities of a custodian or guardian of a child” (Assembly Mem in Support, Bill Jacket, L 2008, ch 404). Thus, it is appropriate to gain insight from standing holdings in custody cases. Indeed, it is similarly critical in both guardianship and custody matters to ensure that only appropriate people may ask for the legal right to permanently care for a child. Generally, when a non-parent is seeking the legal right to have custody and control over a child a showing of extraordinary circumstances, including an established relationship, is required. This standing requirement has been applied in both custody and guardianship cases (see Bennett v. Jeffreys, 40 N.Y.2d 543 [1976][custody]; see e.g. Matter of Cornell S.J. v. Altemease R.J., 164 A.D.3d 1184, 1184 [1st 2018][extraordinary circumstances warranted a grant of guardianship to the grandfather based on the adoptive mother's prolonged abandonment and the grandfather's role as primary caregiver in her absence]; Matter of Caron C.G.G. (Alicia G.-Jasmine D., 165 A.D.3d 476, 476 [1st 2018][extraordinary circumstances required prior to granting guardianship to the petitioner aunt over the mother's objection; the children had been living with the petitioner for nearly half their lives, and the petitioner had taken full responsibility for them]; see also Assembly Mem in Support, Bill Jacket, L 2008, ch 404 [discussing application of extraordinary circumstances standing test in the guardianship context]). The sufficiency of the relationship between petitioners and subject children is a key factor when establishing standing in a custody proceeding. In Matter of Luther, the Third Department held that a sufficient nexus was required for standing, and the petitioners, who cared for the child for a few days following the mother’s death, were denied standing “because they have no blood, marital, caretaking or social relationship with the child and, in effect, are strangers to her.” (Matter of Luther v. Rate, 226 A.D.2d 803, 805 [3d Dept 1996]). In Matter of Roland F., the former boyfriend of the mother, who took care of the child “from time to time” and knew her for almost fifteen years was denied standing to seek custody, visitation, or guardianship because of an insufficient relationship between him and the subject child (Matter of Roland F. v. Brezenoff, 108 Misc.2d 133, 135 [Fam. Ct., New York County 1981]). Specifically, in Roland F., the court found that the petitioner’s relationship with the child, “albeit supportive and commendable” was merely “one of friendship and not kinship” (Id. at 134). Standing has been found, on the other hand, where the petitioners have actually been caring for the child. For example, in Anonymous v. Olson (112 AD2d 299 [2d Dept 1985]), petitioners — friends of the mother’s family — took the twin infants into their home and actually cared for them following the mother’s death. Two additional cases are instructive here. In Jesse G. v. Mildred N., 11 Misc.3d 1091(A) [Fam Ct., Suffolk County 2006]), the court found there was an insufficient nexus between the petitioners — friends of the deceased mother — and the child. Specifically, although the petitioners had “a social relationship with the children as a part of some roughly defined ‘extended family,’ they…never had caretaking responsibilities for the children.” While the court did not doubt the sincerity of the petitioners’ concern for the children, the court concluded there was a not a sufficient nexus to the children as there was “no relationship by blood or marriage, no legal obligation, no assumption of caretaking responsibilities, and no residential family relationship.” And, in Matter of Janet S.M.M. v. Commissioner of Soc. Servs. (158 Misc.2d 851 [Fam. Ct., Westchester County 1993]), the court found that the petitioner — a friend of the child’s incarcerated father — lacked standing to seek custody of the child because she was a legal stranger and the record was devoid of evidence that they had ever met or had any contact. The court held that “a person seeking custody of a child lacks standing to petition the court unless he or she can demonstrate some nexus to the child, including, but not limited to an interest in the child’s welfare by virtue of a relationship by blood, marriage, legal obligation and/or the previous assumption of caretaking responsibilities” (Id. at 858). The Janet S.M.M. court went on to explain that granting standing to persons without such a nexus would “open up the floodgates of litigation” and would “unduly burden and complicate custody proceedings.” The court added this cogent point on the need for a standing requirement in these matters: “Taken to its outermost limits, courts would be required to entertain each and every petition brought by strangers, subjecting parents and custodians to defend such proceedings and creating an environment of confusion and instability ad absurdum” (Id. at 857-58). This Court now adopts the relevant custody holdings on standing and holds that while the guardianship statutes should be read broadly, courts must apply commonsense limitations in order to provide for the stability and protection of children. Thus, a person seeking guardianship of a child lacks standing to petition the court unless he or she can demonstrate a sufficient nexus to the child, including, but not limited to blood, marriage, legal obligation, or the previous assumption of caretaking responsibilities. Interpreting the statutory language in SCPA 1703 of “any person” to mean that literally anyone is entitled to a hearing on guardianship, despite little to no connection to the child, would be illogical and defy the very purpose of the law. This Court’s role as parens patriae exists in all proceedings, including guardianship. As discussed above, custody and guardianship are two titles granting virtually the same rights and responsibilities; requiring a sufficient relationship for standing for custody and not for guardianship would create a loophole that does not protect the interests of children. In this case, the petition failed to show on its face a sufficient nexus to the child. Friendship, even someone who may be considered part of an extended social family for many years, does not suffice on its own to establish standing. Petitioner’s professed concern for the child may be commendable but this concern does not provide a basis for standing. Nor is the petition saved by the wishes of the purported father of the child. Further, petitioner’s statements that she cared for the child on a handful of occasions and that the child had visited her with his mother over the years are not sufficient to establish a sufficient caretaker or other connection to the child to establish standing. In summary, when nothing in a guardianship petition establishes a sufficient relationship between the child and petitioner, the court has the authority to dismiss the petition for lack of standing and facial insufficiency. For the foregoing reasons, the petition is dismissed without prejudice. This constitutes the decision and order of the court. Dated: October 24, 2019 Bronx, NY
