Matter of Neithan AA
Annotate this CaseDecided on December 7, 2007
Family Court, Clinton County
In the Matter of Neithan AA, A Child Under Eighteen Years of Age Alleged to be Neglected by Joseph BB, Respondent.
NN-01093-07
John Dee, Plattsburgh, for Jay T. LePage, Commissioner of the Clinton County Department of Social Services.
Keith M. Bruno, Plattsburgh, Attorney for Joseph "BB"
Cheryl Maxwell, Plattsburgh, Attorney for Jennefer "CC"
Clinton County Law Guardian Office, Plattsburgh, (Larry A. Kudrle, Esq., of counsel), as Law Guardian for the subject child, Neithan "AA"
Timothy J. Lawliss, J.
On July 10, 2007, the Clinton County Department of Social Services filed a petition under Article 10 of the Family Court Act alleging that Joseph "BB" neglected a seven year old child, Neithan "AA". It is alleged that Joseph "BB" was Neithan's mother's paramour and resided with Neithan and his mother for approximately three and one-half years prior to the filing of the petition. The petition originally alleged that the petitioner could not identify Neithan's father because Neithan's mother Jennifer "CC" refused to cooperate with their investigation. Eventually, the Department of Social Services learned that Neithan's father has been legally established to be Pedro "DD". The Court scheduled the fact-finding hearing in this matter to commence on November 15, 2007. [*2]
By Order to Show Cause dated November 14, 2007 (made returnable at the scheduled commencement of the fact-finding hearing), the Respondent moved for the dismissal of the petition upon the grounds that the Clinton County Department of Social Services failed to comply with requirements of Family Ct Act § 1041. During oral argument on the motion, the Respondent argued that in the alternative, should the Court not dismiss the petition, the fact-finding hearing must be adjourned until the Department of Social Services complies with the requirements of Family Ct Act § 1041. This appears to be a case of first impression.
Family Ct Act § 1041 reads as follows:
No fact finding hearing may commence under this article unless the court enters a finding:
(a) that the parent or other person legally responsible for the child's care is present at the hearing and has been served with a copy of the petition; or
(b) if the parent or other person legally responsible for the care of the child is not present, that every reasonable effort has been made to effect service under section ten hundred thirty-six or ten hundred thirty-seven.
Pedro was not present at the scheduled commencement of the fact-finding hearing. Family Ct Act § 1041 clearly requires that if a parent is not present for the commencement of the fact-finding hearing, the hearing may not begin unless every reasonable effort has been made to effectuate service under Family Ct Act §§ 1036 or 1037.
Family Ct Act § 1037 addresses the Court's ability to issue a warrant of arrest for a parent under Article 10 of the Family Court Act. Because it appears Pedro resides outside of the State of New York, the issuance of a warrant would be ineffective in obtaining his attendance. Indeed, even in cases alleging abuse, a warrant is not required where process must be sent outside of the State of New York. See, Family Ct Act § 1036(a). Thus, since a warrant issued under Family Ct Act § 1037 would not be helpful, the question becomes has the petitioner made every reasonable effort to serve Pedro under Family Ct Act § 1036. The Clinton County Department of Social Services' position is that it has satisfied this requirement and the fact finding hearing may commence. The Court adjourned the fact-finding hearing and conducted an evidentiary hearing on this issue. The following constitutes the Court's findings of fact and conclusions of law.
To date, the Department's efforts to effectuate service on Pedro are as follows. On August 28, 2007, the Department sent the petition to a private process server with instructions to serve Pedro at his last known address located in Bad Axe, Michigan. An individual at that address informed the process server that Pedro no longer lived there. On September 12, 2007, the Department learned of another address for Pedro in Clearwater, Florida. Again, documents were sent to a private server to attempt service. Again, an individual at that address informed the process server that Pedro did not reside there and had not resided there for at least one year. On September 19, 2007, the Department conducted a WestLaw search and discovered three different additional addresses for Pedro: Belleview, Michigan; Ytsilanti, Michigan; and Anne Arbor, Michigan.
On October 2, 2007, a private process server attempted to serve Pedro at 839 George Place, Ytsilanti, Michigan. Apparently, the specific address the Department had in Ytsilanti, Michigan was 829 George Place, not 839 George Place. Thus, this attempt at service was made at the wrong address. According to the process server, the gentleman who answered the door at [*3]839 George Place, Ytsilanti, Michigan denied being Pedro; however, for reasons unexplained to the Court, the process server believed that the gentleman may have been Pedro. Finally on November 5, 2007, the Department attempted to serve Pedro at 829 George Place, Ytsilanti, Michigan. The resident of apartment #2 at that address informed the process server that he had no knowledge of Pedro and the local mail carrier informed the process server that he had no knowledge of any Pedro at 829 George Place.
Apparently, the Department never attempted to serve Pedro in Belleview, Michigan or Anne Arbor, Michigan.
In addition to the above, in September of 2007, Jennifer, Neithan's mother, gave the Department's assigned caseworker three telephone numbers for Pedro. The caseworker attempted to reach Pedro at two of the three numbers. At the first number she tried, she left a message for Pedro and never received a return phone call. At the second number the caseworker tried, she reached a woman claiming to be Pedro's sister. The woman would not provide an address for Pedro. The caseworker left a message for Pedro with the woman. Some time after leaving that message, the caseworker received a telephone call from a man claiming to be Pedro. During that telephone call, the gentleman mentioned the name of Jennifer. The caseworker does not believe that she left Jennifer's name with the woman she left a message with previously. The gentleman did not give any other facts to the caseworker during this call regarding Neithan which were not previously relayed by the caseworker. The caseworker does not know Pedro, and thus, she could not identify the man's voice as being the voice of Pedro. The man claiming to be Pedro would not give the caseworker his address. The caseworker informed the caller that a neglect petition had been filed against Neithan's mother concerning Neithan.
The Respondent argues that the Department has failed to make every reasonable effort to serve Pedro as required by Family Ct Act § 1041 for the following reasons. The Department failed to even attempt service at the address that they had for Pedro in Belleview, Michigan or Anne Arbor, Michigan. The Department failed to call the third telephone number provided to the assigned caseworker by Neithan's mother. Except for than asking the man who claimed to be Pedro and the woman who claimed to be Pedro's sister for their addresses, the Department failed to take any other steps to identify the addresses for the three phone numbers provided to them by Neithan's mother. Finally, the Department failed to make an application pursuant to Family Ct Act § 1036(d) that provides that "if after reasonable efforts personal service is not made, the Court may at any stage of the proceedings make an order providing for substitute service in a manner provided for substitute service in civil process and courts of record." The Department's position is that the caseworker did speak with Pedro and gave him notice of these proceedings, which satisfied the Department's requirements under Family Ct Act § 1041.
As a preliminary matter, the Court notes that the legal standard under Family Ct Act § 1046 is not whether or not the parent has received notice of the proceeding, but rather whether or not the Department has made every reasonable effort to effectuate service. The Court can certainly conceive of situations where a parent may through rumor or otherwise receive some type of notice that an Article 10 proceeding is pending, but such notice would not satisfy the Department's obligation to make every reasonable effort to effectuate service.
Next, the Court concludes that a preponderance of the evidence establishes that the Department's assigned caseworker did speak directly to Pedro. The Court reaches this conclusion based on the following chain of events. Jennifer gave the caseworker three numbers [*4]for Pedro. The caseworker left a message with a woman claiming to be Pedro's sister, asking Pedro to call her. A gentleman claiming to be Pedro called the assigned caseworker. The individual who made the call provided the caseworker with additional information regarding the name of Neithan's mother, which was not previously provided to either Pedro or his sister. Furthermore, it is highly improbable that anyone would have the motivation to impersonate Pedro in this context.
The Respondent did accurately identify additional efforts that the Department could take in order to effectuate service on Pedro. As a general proposition, the Court would expect of the Department to make those additional efforts, including an application pursuant to Family Ct Act § 1036(d) seeking a substitute service order, because the Department is required to make more than reasonable efforts, it must make every reasonable effort.
Notwithstanding the fact that additional efforts could be made, on the facts of this case, the Court concludes that the Department has in fact satisfied the every reasonable efforts standard. The Department's assigned caseworker has spoken directly to the parent, advised the parent of the pending proceeding and asked for the parent's address in order to effectuate service. The parent has expressly refused to provide the Department with his address.
The public policy behind Family Ct Act § 1041 is self evident. Clearly, the intent of the statute to ensure that parents are provided notice of serious proceedings effecting their children so that the parent may participate in the proceedings for the benefit of their children. In this case, the underlying policy for the statute has been satisfied. Pedro has been made aware of these proceedings and has affirmatively decided that he does not wish to participate in the proceedings. Under these facts, it is no longer reasonable to require the Department of Social Services to continue efforts to effectuate service.
In summary, the Court finds that the Department has fulfilled its obligation pursuant to
Family Ct Act § 1041 and accordingly, the Respondent's motion is denied in its entirety.
Furthermore, even in the event that the Department failed to fulfill its responsibilities under
Family Ct Act § 1041, the Respondent's remedy would be an adjournment of the
fact-finding hearing, not the dismissal of the petition.
SO ORDERED
Dated: December 7, 2007____________________________________
Hon. Timothy J. Lawliss
Family Court Judge
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