Matter of Rosa Amanda L. R. v. Carlos Arnoldo O. R. , 2020 NY Slip Op 07580 ( 2020 )

Matter of Rosa Amanda L. R. v Carlos Arnoldo O. R. (2020 NY Slip Op 07580)

Matter of Rosa Amanda L. R. v Carlos Arnoldo O. R.

2020 NY Slip Op 07580

Decided on December 16, 2020

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 16, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.

2020-01453
2020-01454
2020-01455
(Docket No. G-4712-19)

[*1]In the Matter of Rosa Amanda L. R. (Anonymous), appellant,

v

Carlos Arnoldo O. R. (Anonymous), respondent.

Bruno Joseph Bembi, Hempstead, NY, for appellant.

DECISION & ORDER

In a guardianship proceeding pursuant to Family Court Act article 6, the mother appeals from three orders of the Family Court, Nassau County (Catherine Rizzo, J.), all dated January 31, 2020. The first order, without a hearing, dismissed the petition to appoint the mother as guardian of the subject child. The second order denied the mother's motion to dispense with service on the father. The third order denied the mother's motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J).

ORDERED that the orders are reversed, on the law, without costs or disbursements, the petition to appoint the mother as guardian of the subject child is reinstated, and the matter is remitted to the Family Court, Nassau County, for an expedited hearing and a new determination thereafter of the petition and the two motions.

In May 2019, the mother filed a petition pursuant to Family Court Act article 6 to be appointed the guardian of the subject child for the purpose of obtaining an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). In an order dated January 31, 2020, the Family Court dismissed the mother's petition, without a hearing, on the ground that the mother's counsel failed to properly certify the copy of the child's birth certificate submitted in support of the petition. The court also denied the mother's motions (1) to dispense with service on the father, and (2) for the issuance of an order making the requisite declarations and specific findings so as to enable the child to petition for SIJS, on the basis that it had dismissed the guardianship petition. The mother appeals.

We disagree with the Family Court's determination to dismiss the petition on the ground that counsel's identification of the child's birth certificate in his attorney certification was inadequate. Counsel's identification in the attorney certification he submitted with a copy of the child's birth certificate was sufficient to satisfy the requirements of CPLR 2105.

Accordingly, since the Family Court dismissed the guardianship petition without conducting a hearing or considering the child's best interests, we remit the matter to the Family Court, Nassau County, for an expedited hearing and a new determination thereafter of the [*2]guardianship petition (see Matter of M. Linares-Mendez v Cazanga-Payes, 183 AD3d 738; Matter of Olga L.G.M. v Santos T.F., 164 AD3d 1341, 1342), the motion to dispense with service on the father, and, if warranted, an order, inter alia, making specific findings so as to enable the child to petition for SIJS pursuant to 8 USC § 1101(a)(27)(J) (see Matter of Olga L.G.M. v Santos T.F., 164 AD3d 1341, 1342).

The mother's remaining contentions either need not be reached in light of our determination or are not properly before this Court because the contention was not raised before the Family Court.

RIVERA, J.P., HINDS-RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court