ADDITIONAL INDEX NUMBERS F-09264-20 On April 18, 2022, petitioner Edward Jernigan-Leysath (“Petitioner”) timely filed an objection to an order entered by Support Magistrate Kevin Mahoney (the “Support Magistrate”) on March 22, 2022 (the “March 22, 2022 Order”). Petitioner submitted proof of service of the objection upon the respondents Rhonda Leysath (“Rhonda”) and Robbie Leysath (“Robbie”) (collectively “Respondents”), who are unrepresented by counsel, with his objection papers. No rebuttal was submitted. Upon reviewing the record, including Petitioner’s objection and exhibits thereto, the orders of dismissal and findings of fact issued by the Support Magistrate in both dockets, and the recordings of the hearing held on September 8, 2021, November 22, 2021, and March 22, the court finds that there is insufficient evidence to support the Support Magistrate’s finding that Respondents met their burden of establishing constructive emancipation and the objection is granted and the matter is remanded to the Support Magistrate for additional fact finding. Background Petitioner was a foster child in Respondents’ home and was subsequently adopted by them in 2016, at the age of fourteen or fifteen.1 On March 4, 2020, Petitioner filed the instant petition seeking to establish support for himself (Docket No. F-02506-20 & F-09264-20).2 Specifically, petitioner alleges that he no longer resides with Respondents, who “currently receive an adoption subsidy for [his] care since [he] was adopted at age 14 though I no longer reside with them.” Petitioner cites to Barbara T. v. Acquinetta M., 164 AD3d 1 [1st Dept 2018]) in support of his request for an order of support directing Respondents to pay fair and reasonable support in the amount of the adoption subsidy that they receive and that they be required to exercise the option of additional coverage for health insurance in Petitioner’s favor. A hearing was held on September 8, 2021, November 22, 2021, and March 22, 2022 on the question of whether Petitioner had constructively emancipated himself. Petitioner was represented by counsel at the hearing and both Respondents waived their right to counsel and proceeded pro se. Petitioner testified and was cross-examined by each Respondent, and Robbie briefly testified regarding Petitioner’s relationship with his counsel and various social workers during and after the adoption proceeding. Rhonda declined to testify on her own behalf. The Support Magistrate thereafter issued findings of fact and orders of dismissal on March 22 022.3 The findings of fact indicate that “the basis of Petitioner’s request for support is his claim that he had no other choice but to leave the Leysath’s home when he was 18 years old, and is thus entitled to a support order paid directly to him by Respondent.” The Support Magistrate determined the following: The testimony of both parties made it clear to the Court that the Petitioner was being raised in a home as a teenager which required him to act accordingly and contribute in an age appropriate way through chores and other household responsibilities. The Court did not find Petitioner credible in his claim that he never felt truly loved by his adoptive family. The Court also notes that there has been no allegation of physical abuse of Petitioner made in this case. Similarly, Petitioner’s complaints of nothing being “fair” in Respondent’s home as far as he was concerned, as well as a claim that Respondent did not cook “anything” are found by the Court to be typical responses from a teenager faced with age appropriate discipline. The Court notes that no other witnesses were called by Petitioner to confirm any alleged “mistreatment” of Petitioner by Respondent, and there was no evidence that Petitioner had alerted any social workers of any issues within the home, despite the fact that he had contact with several. (Lew affirmation, exhibit A, Docket F-02506-20). The findings of fact for Robbie reiterate these points, with the addition that Petitioner’s claim that Robbie’s “didn’t give him a chance to speak,” was found to be a typical response from a teenager faced with age-appropriate discipline (Lew affirmation, exhibit A, Docket F-09264-20). Upon these findings of fact, the Support Magistrate determined that Petitioner had constructively emancipated himself from the household and both petitions were dismissed for failure to state a cause of action. Petitioner thereafter filed his objections. Standard of Review Family Court Act 439 (a) empowers Support Magistrates “to hear, determine and grant any relief within the powers of the Court,” in proceedings properly before them. FCA 439 (e) provides that the Support Magistrate’s determination “shall include findings of fact anda final order.” The parties are permitted by statute to submit “specific written objection,” to the order for “review” by a Family Court judge. The review of the Support Magistrate’s order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v. Lazo, 102 AD3d 781, 782 [2d Dept 2013]). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order The determination of the Support Magistrate should not be disturbed unless no fair interpretation of the evidence can support the findings (see Matter of Stone v. Stone, 236 AD2d 615, 615 [2d Dept 1997]; Matter of Reed v. Reed, 240 AD2d 951, 952 [3d Dept 1997]). In applying these legal principles, the scope of the Family Court judge’s review consists primarily of an inquiry as to whether the Support Magistrate has made the necessary findings of fact and conclusions of law, and whether upon review of the record, there was a reasonable basis for the Support Magistrate’s order. In reviewing an objection to a decision of a Support Magistrate, the Court may remand one or more issues of fact to the Support Magistrate, make its own findings of fact and its own order, with or without an additional hearing, or deny the objection altogether (FCA 439 [e]). Discussion Petitioner argues that the Support Magistrate “incorrectly and wrongly focused on whether the Petitioner emancipated himself by leaving the adoptive home when he turned 18 years old” (Lew affirmation 6-8). Instead, Petitioner relies on Matter of Barbara T. v. Acquinetta M., 164 AD3d 1 [1st Dept 2018]), and argues that any adoption subsidy received by Respondents attaches to the adoptive child, and he is therefore entitled to receive any subsidy received by Respondents from the time Petitioner left the home or, failing that, from the time he filed the petition for support. Petitioner also argues that, in any event, the evidence presented demonstrates that Petitioner was “kicked out” of the adoptive home by his adoptive parents and did not willingly abandon the home (Lew affirmation 6-8). It is a fundamental public policy in the State of New York that a parent is obligated to support his or her child until that child reaches the age of twenty-one (FCA 413 [1][a]; Matter of Roe v. Doe, 29 NY2d 188, 192-193 [1971]). When a child is adopted, the natural parents are relieved of this responsibility and the adoptive parents become liable for the child’s support (DRL 110; DRL 117 [1][a]; see also Barbara T., 164 AD3d at 2 ["Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21"]). Nevertheless, emancipation suspends the parent’s support obligation (Roe v. Doe, 29 NY2d at 192-193). “Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision” (Matter of Alice C. v. Bernard G.C., 193 AD2d 97, 105 [2d Dept 1993]). The burden of proving emancipation is on the party asserting it (O’Sullivan v. Katz, 81 AD3d 480, 480 [1st Dept 2011]). “A child of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support even if they are not financially self-sufficient” (Matter of Bailey v. Bailey, 15 AD3d 577 [2d Dept 2005]; Roe, 9 NY2d at 192-193; Alice C., 193 AD2d at 105). However, where the parent causes the breakdown in communication with the child, contributes to the deterioration of the relationship, or has made no genuine effort to contact the child, the child will not be deemed to have abandoned the parent (Jose R. v. Yvette-Ortiz M., 123 AD3d 412, 413; [1st Dept 2014]; Matter of Gansky v. Gansky, 103 AD3d 894, 895 [2d Dept 2013]; Matter of Dewitt v. Giampietro, 66 AD3d 773, 774 [2d Dept 2009]; Alice C., 193 AD2d at 109; Lipsky v. Lipsky, 115 AD2d 361, 361 [1st Dept 1986]). Furthermore, if the parent-child relationship deteriorates in whole or in part due to the parent’s actions, they must actively try to repair the relationship (Jose R., 123 AD3d at 413; Matter of Chamberlin v. Chamberlin, 240 AD2d 908, 910 [3d Dept 1997]). Reluctance on the child’s part to contact the parent does not constitute abandonment which would relieve the parent of their support obligation (O’Sullivan, 81 AD3d at 480; Dewitt, 66 AD3d at 775). Notwithstanding the deference this court gives to the findings of the Support Magistrate, who is in the best position to assess the credibility of the witnesses, the court finds that even if believed, Respondents have failed to meet their burden of establishing constructive emancipation. Petitioner testified at the hearing that he left Respondents’ home in November 2018, shortly after his eighteenth birthday. Without objection from either Respondent, Petitioner submitted a text message into evidence that Robbie sent to Petitioner on September 26, 2018 in which Robbie stated, “U just fucked yourself and ya don’t even kno it u remind me of a couple of other idiots I kicked to the fucking curb u never kno how good u had it until ya lose it [laughing emoji],” and “Nobody breathes for free ” (Lew affirmation, exhibit B). Petitioner testified that the text exchange took place after he cleaned the kitchen in the home and Robbie was unhappy with the job he did, and that he left the home a few weeks after this exchange and was told by Respondents he could never come back and was not welcome in the home. Petitioner also testified that he returned to the home in either February or March of 2019 to retrieve some of his sneakers and other belongings. When Petitioner entered the home by the garage, Robbie confronted him and again told him he was not welcome in the home, and threatened to call the police to charge him with trespassing. The September 26, 2018, text message and Petitioner’s testimony that he was told he could never return to the home indicate that either Robbie or both Respondent’s actions contributed to the deterioration of the relationship with Petitioner. Nevertheless, there was no testimony elicited by Respondents on this issue, and the Support Magistrate made no findings of fact regarding whether either Respondent made any effort to maintain a relationship with Petitioner or attempted to repair the relationship with Petitioner after he left the home (see Jose R., 123 AD3d at 413; Gansky, 103 AD3d at 895; Dewitt, 66 AD3d at 774; Alice C., 193 AD2d at 109; Lipsky, 115 AD2d at 361; Chamberlin, 240 AD2d at 910). Indeed, Respondents did not proffer any evidence of attempts to maintain contact with Petitioner, offers for him to return to the home, or any attempts to repair the relationship between them. Additional fact finding is, therefore, needed on these issues (see Melgar v. Melgar, 132 AD3d 1293, 1294 [4th Dept 2015] [Further hearing needed where the cause of the breakdown in communication has not been established]). Petitioner also argued in his petition, at the hearing, and in his objection that Respondents receive an adoption subsidy for Petitioner’s care, which he contends should be awarded to Petitioner. “New York has offered an adoption subsidy in some form since 1977 in order to ‘eliminate, or at the very least substantially reduce, unnecessary and inappropriate long-term foster care situations,’ which are both costly to the state and contrary to the best interests of children who are difficult to place due to physical or mental disabilities, age, or for other reasons” (Barbara T., 164 AD3d 1, 9, citing Social Services Law 450). “In 1980, Congress passed the Adoption Assistance and Child Welfare Act (42 USC 670-676) ‘to encourage greater efforts to find permanent homes for children’ by, inter alia, subsidizing the adoption of special needs children. New York’s adoption subsidy program comports with the federal requirements, and is administered in New York City by ACS” (id. at 9). Payment of the adoption subsidy is regulated by 18 NYCRR 421.24. Although the statute does not provide for payment of the subsidy directly to the child, or anyone other than the adoptive parent, New York courts have acknowledged that the subsidy is a resource of the child and is paid for the care and maintenance of the child (Barbara T., 164 AD3d at 8 ["For the reasons discussed below, we find that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support[.]; A.E. v. J.I.E., 179 Misc 2d 663, 665-666 [Sup Ct Bronx County 1999] ["[S]uch payments are treated as resources of the child, to be considered in determining whether the parent’s support obligation is unjust or inappropriateDSS pays this subsidy for the care and maintenance of the child[.]; Comm’r of Soc. Servs. ex rel. Smith v. Smith, 75 AD3d 802, 802 [3d Dept 2010] [Appellate court declined to vacate order directing non-custodial adoptive mother to turn over monthly adoption subsidy to Commissioner of Social Services for reimbursement of the cost of the child's care]). In order to receive the adoption subsidy, foster parents must apply for the subsidy prior to adoption (18 NYCRR 421.24 [b] [1]), and sign a contract with ACS (18 NYCRR 421.24 [b] [2]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24 [c] [3]; see also New York State Office of Children and Family Services, Adoption Subsidy and Non-Recurring Adoption Expenses Agreement, available at https://www.ocfs.ny.gov/main/Forms/adoption/LDSS-4623A%20Adoption%C20Subsidy%C20and%20Non-Recurring%20Adoption%C20Expenses%C20Agreement%20-%20Initial%20Application.pdf, cached at http://www.nycourts.gov/reporter/webdocs/LDSS-4623A-Adoption-Subsidy-Non-Recurring-Adoption-Expenses-Agreement-Initial-Application.pdf). The applicable regulations further provide the following: The written agreement authorizing monthly payments will remain in effect until the child’s 21st birthday. No payments may be made if the social services official determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child. (18 NYCRR 421.24 [c] [5] [emphasis added]). The statute further provides: The social services official on an annual basis in a written notification must remind the adoptive parents of their obligation to support the adopted child and to notify the social services official if the adoptive parents are no longer providing any support or are no longer legally responsible for the support of the child. Where the adopted child is school age under the laws of the state in which the child resides, such notification must include a requirement that the adoptive parents must certify that the adopted child is a full-time elementary or secondary student or has completed secondary education. (18 NYCRR 421.24 [c] [19] [emphasis added]). Petitioner testified at the hearing that he did not receive any financial support from Respondents after he left the home in November 2018 and stated that he lived in a shelter for a period of time after leaving the home. Respondents, therefore, had a contractual and statutory obligation to inform ACS at that time that they were no longer providing any support to Petitioner (id.). It would be inappropriate, if not illegal, for Respondents to continue receiving a subsidy if they were no longer providing care to Petitioner. Therefore, if Respondents continued to receive the adoption subsidy after Petitioner left the home, in contradiction with their agreement with the social services official and in violation of 18 NYCRR 421.24 [c] [5], this suggests that Petitioner was not emancipated and that Respondents had a continuing obligation to provide support to him (see J.M. v. R.M., 52 Misc 3d 1212 [A] [NY Fam Ct 2016] [Family Court weighed non-custodial mother's continued receipt of adoption subsidy as a factor in determining whether child was constructively emancipated]). The record is devoid of information regarding the amount of any subsidy received and dates of receipt of same. Pursuant to Family Court Act Section 439(e), a support magistrate is required to set forth detailed “findings of fact” and in the absence of such findings, the matter shall be remitted (see Vizcaino v. Butler, 248 AD2d 478 [2d Dept 1998]). The support magistrate must consider the evidence presented to make the necessary findings of fact and must state the reasons therefor (see Parietti-Fogarty v. Fogarty, 141 AD3d 512 [2d Dept 2016]). “Appropriate findings of factshould be made on each issue” (Manning v. Manning, 115 AD2d 318 [4th Dept 1985]), and the failure of a support magistrate to make specific findings of fact on each issue makes intelligent judicial review impossible, requiring remittitur (see Hamilton v. Irlbacher, 96 AD2d 726 [4th Dept 1983]). In the instant matter, the Support Magistrate failed to issue specific findings of fact as to what contribution Respondents made to the deterioration of the parent-child relationship, what efforts they made to repair the relationship, the amount of any adoption subsidy received by Respondents in connection with their adoption of Petitioner, and the dates of receipt of the subsidy. Therefore, the objection is granted and the matter is remanded to the Support Magistrate for additional fact finding on these issues. This constitutes the decision and order of the court. Notify parties. Notify Support Magistrate Mahoney. Dated: May 16, 2022
