IN RE: DEPARTMENT OF SOCIAL SERVICES (2020)

Order, Family Court, New York County (Adam Silvera, J.), entered on or about May 10, 2018, which, after a hearing, estopped respondent from obtaining a genetic markings test, and, by separate order of filiation, adjudged and declared him the father of the subject child, unanimously affirmed, without costs.

Family Court properly determined that equitable estoppel prevented respondent from challenging his paternity of the subject child with DNA testing (see Family Court Act § 532[a]).  Clear and convincing evidence demonstrates that respondent, who does not deny that he is the biological father of the subject child's older and younger brothers, also held himself out as her father (see Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326–327, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006]).  The child calls respondent “Daddy” and has a familial relationship with his parents and relatives.  Respondent was present at the hospital shortly after the child was born, attended her birthday parties, and bought her gifts and clothing.  Accordingly, even if the parent-child relationship was limited as he claims, it was in the child's best interests to estop respondent from disputing paternity (Matter of Glenda G. v. Mariano M., 62 A.D.3d 536, 880 N.Y.S.2d 18 [1st Dept. 2009], lv denied 13 N.Y.3d 708, 2009 WL 3350436 [2009]; see Matter of Smythe v. Worley, 72 A.D.3d 977, 899 N.Y.S.2d 365 [2d Dept. 2010]).  Issues of credibility were for the Family Court to resolve, and there is no basis to disturb its determination to credit the testimony of the mother and reject respondent's testimony as “incredible” (see Matter of Commissioner of Social Servs. v. Dwayne W., 146 A.D.3d 718, 719, 47 N.Y.S.3d 5 [1st Dept. 2017]).

To the extent respondent contends that he is not the subject child's biological father, such argument is irrelevant.  The court did not rely on evidence relating to biological parenthood, but resolved the petition based on equitable estoppel, which is made “irrespective of biological fatherhood” in accordance with the legislature's “deliberate policy choice” (Shondel, 7 N.Y.3d at 330, 820 N.Y.S.2d 199, 853 N.E.2d 610).