Matter of Teresa R. v. Comm'r Soc. Servs.

PURSUANT TO SEC. 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 APPELLANT BY THE CLERK OF THE COURT, OR 35 DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. DECISION AND ORDER I. Instant Objection Before this Court is a timely filed objection by the Petitioner, Teresa R., to Support Magistrate Kevin Mahoney’s September 10, 2019 Findings of Fact and Order, which denied Teresa R.’s petition to vacate child support arrears. Teresa R. served the Respondents, Belinda M. and the Commissioner of Social Services, with the instant objection and no rebuttals were filed. Upon review of the objection and record before the Support Magistrate, this Court grants the objection for the reasons stated herein. II. History A procedural history is necessary, given the length of time the parties have been before the Family Court and the complexity of the issues surrounding this matter. On June 25, 2013, the New York City Administration for Children’s Services (“ACS”), filed an Article 10 neglect petition on behalf of the subject child, Giohvany R. (DOB: 05/10/2005), in Queens County Family Court against Teresa R., the child’s biological mother. The child was remanded to the care and custody of ACS. At some point thereafter, the child was temporarily released to Belinda M. and Belinda M. agreed to care for the child without foster care funding. On October 7, 2013, the Queens County Family Court entered a finding of neglect against Teresa R. and pursuant to the order of disposition, released the child to Belinda M., again without foster care funding. On October 1, 2014, the Queens County Family Court modified the dispositional order and placed the child with the Commissioner of ACS, with a restrictive placement to Belinda M.¹ This change to the child’s legal status permitted Belinda M. to care for the child and receive foster care funding.² On April 13, 2015, a termination of parental rights (“TPR”) petition was filed against Teresa R., Docket No. B-06768-15, in Queens County Family Court and the child remained in Belinda M.’s foster home. While the TPR petition was pending and while Belinda M. was receiving foster care funding, on July 21, 2015, the Commissioner of Social Services (hereinafter “CSS”), on behalf of Belinda M., filed a petition against Teresa R. seeking an order of child support for the child. On August 11, 2015, counsel for CSS appeared before Support Magistrate Patricia Hickey and informed the Support Magistrate that public assistance was active for the child, as Belinda M. had added the child to her public assistance budget.³ The matter was adjourned to September 21, 2015. On September 21, 2015, issue was joined and Teresa R. waived counsel. The assignor/Respondent, Belinda M., did not appear. Teresa R. briefly testified that the child was in foster care and that Belinda M. was receiving foster care funding for the child. Counsel for CSS confirmed that public assistance remained active and Belinda M. was receiving both shelter and cash assistance. Based on this record, Support Magistrate Hickey issued a temporary order of support, which directed Teresa R. to pay CSS $50.00 per month for the support of the child. The matter was adjourned to October 23, 2015. On October 23, 2015, counsel for CSS appeared before Support Magistrate Hickey. Neither Belinda M. nor Teresa R. appeared. Counsel for CSS informed the Support Magistrate that public assistance remained active for the child. The public assistance budget was $149.00 per week, which consisted of both shelter and cash assistance. The Support Magistrate issued an order of support on default which required Teresa R. to pay $149.00 weekly for the support of the child via the Support Collection Unit, and set retroactive support at $150.00.⁴ Since the child’s legal status was modified on October 1, 2014, and throughout the pendency of all related matters, Belinda M. continued to receive foster care funding for the child. On September 21, 2017, the child was removed from Belinda M.’s home and was placed in a different foster home. The child was then trial discharged to Teresa R. on September 28, 2018,⁵ and the child was final discharged to Teresa R.’s care on April 5, 2019.⁶ On January 10, 2019, Teresa R. filed a modification petition pursuant to Supplemental B and requested that the October 23, 2015 order of support be terminated due to her regaining custody of the child. On February 21, 2019, Teresa R. and counsel for CSS appeared before Support Magistrate Tionnei Clarke and issue was joined.⁷ Counsel for CSS informed Support Magistrate Clarke that public assistance had closed on December 8, 2015.⁸ Based on Teresa R.’s representation that the child was residing with her, and Support Magistrate Clarke’s confirmation of such upon review of the Queens County Family Court Article 10 matter, the Support Magistrate temporarily suspended the order of support. On March 28, 2019, Teresa R. appeared before Support Magistrate Kevin Mahoney for a fact-finding hearing and Support Magistrate Mahoney issued a final order which terminated the October 23, 2015 order of support, as of the filing date of the Supplemental B petition, without prejudice to arrears. On August 13, 2019, Teresa R. filed a modification petition pursuant to Supplemental C and requested that retroactive support be set at $0. In support of this request, Teresa R. argued that Belinda M. should not have collected public assistance for the child while simultaneously receiving foster care funding from Little Flower foster care agency. On September 10, 2019, Teresa R. and counsel for CSS⁹ appeared before Support Magistrate Mahoney, but Belinda M., again, did not appear. Teresa R. submitted several documents into evidence including the conditional surrender dismissal order from Queens County Family Court, a copy of the conditional surrender of the child, and a letter from Little Flower foster care agency, confirming that the child was returned to her care. Support Magistrate Mahoney also reviewed the record before the Queens County Family Court. Support Magistrate Mahoney dismissed Teresa R.’s modification petition without prejudice on the basis that pursuant to Family Court Act §451, the court was unable to vacate child support arrears. Thereafter, the instant objection followed. III. Applicable Law As this Court is faced with an unusual set of circumstances, a review of the legislative history of Family Court Act §451 and the resulting case law is not only instructive, but imperative in reaching a decision on the instant matter. Family Court Act §458 was repealed in 1983, which resulted in the first limitation of the Family Court’s discretionary power to cancel child support arrears. See Family Court Act §458 (repealed). Following the repeal, and pursuant to Family Court Act §451, Family Court was only able to retroactively cancel child support arrears if the support obligor showed good cause for failure to seek the reduction, as well as good cause for the reduction. See Commissioner of Social Services v. Grant, 154 Misc. 2d 571, 585 N.Y.S.2d 961 (Fam. Ct., N.Y. Cnty. 1992). In order to improve child support enforcement, and to comply with the Federal Child Support Enforcement Amendments of 1984, the Legislature again altered the rules in 1986 concerning child support arrears. See Commissioner of Social Services v. Gomez, 221 A.D.2d 39, 645 N.Y.S.2d 776 (1st Dept. 1996). Family Court Act §451 was amended to preclude forgiveness of child support arrears which had accrued prior to a filing for modification, irrespective of the reason for such a delay. See Commissioner of Social Services v. Syck, 230 A.D.2d 596, 661 N.Y.S.2d 341 (4th Dept. 1997). The legislative intent behind such was to ameliorate the issues custodial parents faced in enforcing child support orders and to ensure that the support obligor was not financially rewarded for failing to pay their support obligation. See Grant, 154 Misc. 2d at 573. Nevertheless, following the 1986 amendment to Family Court Act §451, courts began to slowly construe a caselaw exception to the amended statute. In 1992, the Family Court in the Commissioner of Social Services v. Grant grappled with the issue of whether child support arrears could be vacated when a support obligor was unable to pay or move to be relieved from the obligation for medical reasons. The court held that if it was impossible for the support obligor to pay child support and impossible for the support obligor to move for relief from the order, the Support Magistrate may relieve him of responsibility for child support arrears. Id. at 574. In support of this conclusion, the court stated, “the strict adherence to the letter of a statute will not be permitted to defeat the general purpose and manifest policy intended to be promoted, and a statute will not be construed to work an injustice or absurdity.” Id., citing Sinhogar v. Perry, 98 Misc.2d 28, 412 N.Y.S.2d 966 (Sup. Ct., N.Y. Cnty. 1979). In 1993, the Third Department in Reynolds v. Oyster expanded upon the Grant “impossibility doctrine.” In Reynolds, the subject child had dropped out of school, moved out of the custodial parent’s residence, and obtained her own employment, but the custodial parent was not particularly honest about the situation with the support obligor, whose relationship with the subject child was strained. 192 A.D.2d 794, 596 N.Y.S. 545 (3d Dept. 1993). The Third Department held that the support obligor was entitled to vacatur of child support arrears from the time the child was actually emancipated, as opposed to the later date when the petition for modification was actually filed. Id. at 795. The court reasoned that “this is one of those rare circumstances where an over strict application of [Family Court Act §451] would result in ‘grievous injustice’ to a parent and a form of equitable estoppel should operate.” Id. In support of this conclusion, the court stated that support obligor was kept in the dark, and affirmatively misled, about information he should have been privy to, and as a result, the custodial parent received child support payments that she was not entitled to. Id. at 796. Following these decisions, courts continued to recognize this caselaw exception to Family Court Act §451. In 1996, the First Department in Gomez found that in circumstances where the “over strict application of the statute would result in ‘grievous injustice’ to a parent,” arrears could be vacated. 221 A.D.2d at 42. In 1999, the Third Department in Gaudette v.Gaudette held that “courts may not vacate child support arrears that have accrued unless strict application of the statute undermines the legislative intent and causes ‘grievous injustice’ to a parent.” 263 A.D.23 626, 627, 692 N.Y.S.2d 839 (3d Dept. 1999). More recently, the exception was recognized and applied in Dembitzer v. Rindenow, 8 Misc.3d 683, 799 N.Y.S.2d 373 (Sup. Ct., Kings Cnty. 2005), Commissioner of Social Services v. Faresta, 11 A.D.3d 750, 783 N.Y.S.2d 420 (3d Dept. 2004), Commissioner of Social Services v. Alonso, 7 A.D.3d 388, 777 N.Y.S.2d 102 (1st Dept. 2004), and Bertin E. v. Janis G, 51 Misc.3d 1223(A), 41 N.Y.S.3d 448 (Fam. Ct., Kings Cnty. 2016). Thus, it is undisputed that child support arrears may be vacated in rare, extraordinary circumstances wherein compliance with Family Court Act §451 would result in a grievous injustice to a parent and to the children the legislation was intended to protect. IV. Decision While the Support Magistrate is correct in his interpretation and application of Family Court Act §451, this Court concludes, in light of the foregoing, that this is one of the rare, extraordinary circumstances where an over strict application of Family Court Act §451 would result in a “grievous injustice” to Teresa R. and the child. Gomez, 221 A.D.2d at 42. Nine months after Belinda M. began receiving foster care funding for the child, Belinda M. mistakenly, improperly, or perhaps even fraudulently placed the child onto her public assistance budget. Though the custodian of the child — the state — had been paying Belinda M. a foster care board rate for the care and custody of the child, Belinda M. also began to receive public assistance for the child in the form of cash disbursements. Though CSS initiated a support proceeding on behalf of Belinda M. against Teresa R. due to the addition of the child to Belinda M.’s public assistance budget, the original petition should not have been initiated as Belinda M. was not entitled to collect both foster care funding and public assistance cash disbursements for the child. See Campfield v. Perales, 169 A.D.2d 267, 573 N.Y.S.2d 80 (1st Dept. 1991) (in citing 42 U.S.C.A §§602 et seq. and Social Services Law §131-a, court concluded that federal law prohibits receipt of both public assistance benefits and foster care benefits); Kristina Rosinsky & Dana Connelly, Child Welfare Financing: Temporary Assistance for Needy Families (Oct. 2016) (public cash assistance available in lieu of foster care funding); see also Greer, 158 Misc.2d at 488; Matter of Curtis H., 112 Misc.2d at 466; see generally 18 NYCRR 347.12 As the original child support petition was seemingly improperly initiated, it would be a grievous injustice for this Court to preclude forgiveness of Teresa R.’s child support arrears. Even if this Court were to find that the original support petition was properly initiated, precluding forgiveness of Teresa R.’s child support arrears would not only be a grievous injustice, it would also be wholly inconsistent with the legislative intent. When Belinda M.’s public assistance case closed a mere two months after the October 23, 2015 order of support was entered,¹⁰ the matter automatically diverted to a direct payment to Belinda M.¹¹ Therefore, if this Court were to preclude forgiveness of Teresa R.’s child support arrears, approximately $15,000.00¹² would go directly to Belinda M., who did not even have the child in her home from 2017 through 2019, which is when much of the arrears had accrued. Because child support is intended to provide for a child’s day-to-day needs and expenses; Dembitzer 8 Misc.3d at 688; awarding $15,000.00 to the child’s former foster parent, who is not and has not been providing for the child’s day-to-day needs and expenses, would certainly be inconsistent with the legislative intent of Family Court Act §451. Further, given that the child was returned to and remains in Teresa R.’s care, a judgment for child support arrears to Belinda M. will only serve to reduce the limited funds available for the child’s current support, with the strong possibility that these funds will never become available to the child. To divert the financial resources of Teresa M. to Belinda M. would not benefit the child. As the court in Grant correctly pointed out, “when the courts make an exception from the letter of a statute, because the subject expected is not within its spirit and meaning, they do so to avoid a result so unreasonable or absurd.” 154 Misc. 2d at 574. This Court firmly believes that, given this unusual set of circumstances, precluding forgiveness of Teresa R.’s child support arrears would produce an unreasonable result and would be an injustice to a child the statute was intended to protect. Lastly, this Court would be remiss in failing to note that neither Belinda M. nor CSS filed a rebuttal to Teresa R.’s objection. In fact, neither party appeared on Supplemental C and Belinda M. has been absent from the entire duration of these proceedings. Therefore, this Court finds that “this is one of those rare circumstances where an over strict application of [Family Court Act §451] would result in ‘grievous injustice’ to a parent and a form of equitable estoppel should operate.” Reynolds, 192 A.D.2d at 795. Accordingly, this Court hereby grants Teresa R.’s objection and vacates the total amount of child support arrears. This constitutes the decision and order of the Court. Notify parties and SCU. Dated: February 6, 2020