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In re Hannah B. (Anonymous)

Supreme Court of New York, Second Department

July 3, 2013

In the Matter of Hannah B. (Anonymous), appellant. And Theresa B. (Anonymous), et al., petitioners- respondents; Monique A. (Anonymous), nonparty- respondent. Docket No. G-16294/12

Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel), for appellant.

P. Santoriella, P.C., Brooklyn, N.Y. (Kira J. Schettino of counsel), for petitioners-respondents.

Joy S. Rosenthal, New York, N.Y., for nonparty Monique A.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

DECISION & ORDER

In a guardianship proceeding pursuant to Family Court Act article 6, the subject child, Hannah B., appeals, by permission, from an order of the Family Court, Kings County (Wohlforth, Ct. Atty. Ref.), dated October 15, 2012, which, without a hearing, appointed the petitioners temporary guardians of the subject child. By decision and order on motion dated November 5, 2012, this Court, inter alia, stayed enforcement of the order pending hearing and determination of the appeal.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings consistent herewith before a different referee.

The subject child was born in 2000, in California, where she resided until January 19, 2012, when the child and her mother, who was terminally ill, went to New York to stay with the child's maternal grandparents. The mother passed away on February 6, 2012. Thereafter, the child continued to live in the grandparents' home and attended school in New York until the end of the school year in June 2012, at which time the child went to stay with family friends in Connecticut for the summer.

On June 8, 2012, the grandparents commenced this proceeding for guardianship of the child in the Family Court, Kings County. On July 16, 2012, Monique A., an alleged friend of the mother with whom the mother and the child had lived in California, filed a petition in the Superior Court of the County of San Bernardino in California (hereinafter the California court) for guardianship of the child. Monique alleged, inter alia, that the child had expressed the desire to return to California and to live with her permanently.

On August 20, 2012, the California court issued temporary letters of guardianship to Monique. Shortly thereafter, Monique went to Connecticut where the child was staying for the summer and, with the consent of local law enforcement authorities in Connecticut, brought the child back to California with her.

On September 17, 2012, the California court "rescinded" the temporary letters of guardianship issued to Monique in light of the pending guardianship proceeding in New York. On October 9, 2012, Monique filed a motion for leave to intervene in the New York guardianship proceeding.

At a proceeding conducted before the Family Court on October 10, 2012, an attorney for Monique appeared and represented that the child had lived with Monique since the fall of 2010, as well as having lived with her "off and on during her childhood." The attorney for the child also appeared, stating that she had spoken over the telephone with the child, who stated that she wanted Monique to be her guardian, and that she did not want to return to New York to live with her grandparents, with whom she had a "terrible relationship." The attorney for the child added that the child had accompanied the mother to New York before the mother's death so that she could "say goodbye to her family, " but "she did not want to come, " and that the mother had not left any instructions for the child's care after her death.

The attorney for the child requested that the Family Court dismiss the instant proceeding for lack of jurisdiction because the child did not reside in New York for six months before commencement of this proceeding as required to confer jurisdiction pursuant to Domestic Relations Law § 76(1)(a) (see Domestic Relations Law § 75-a[7]). The presiding Court Attorney Referee (hereinafter the Referee) permitted each of the parties to submit a memorandum of law and affidavits regarding, inter alia, the issue of jurisdiction.

In an affidavit submitted by Monique, she attested, inter alia, that the mother and the child had moved in with her in July 2010, and that when the mother moved out to live with another friend in July 2011, the child continued to live in Monique's home until January 2012 when she went to New York with her mother. Monique added that "[w]hen [the child] was told she was going to New York, she stated that she did not want to go, " and "mentioned that her mother told her she would be able to come back to California."

The grandfather attested in his affidavit, inter alia, that the mother went to live with Monique after she became ill, and paid rent to allow her and the child to stay. The grandfather added that the mother "could not deal with the stressful situation of living with [Monique] any longer and instead chose to live in her car... with [the child]." The grandfather stated that he believed ...


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