In re J.T.
| Decision Date | 02 September 2016 |
| Citation | 53 Misc.3d 888,37 N.Y.S.3d 846 |
| Parties | Matter of J.T. |
| Court | New York County Court |
Maggie Seikaly, Esq., for the Onondaga County Department of Children and Family Services.
Karen J. Docter, Esq. of Fayetteville, New York for the mother.
David B. Savlov, Esq. of Syracuse, New York, Attorney for the Child.
On July 15, 2016, the Onondaga County Department of Children and Family Services (hereinafter referred to as the "County") filed a petition seeking to terminate the parental rights of the respondent to the child, J.T., alleging that he has abandoned the child. Subsequently, on July 21, 2016 the County filed a motion seeking an order from the Court granting substituted service of the summons and petition by electronic means pursuant to New York Civil Practice Law and Rules § 308(5).
The motion was returnable before the Court on August 18, 2016. The County, through their counsel, argued that the caseworker's regular means of communication with the respondent has been through e-mail correspondence and the caseworker has not been informed of the respondent's physical address. The Attorney for the Child also joined in the County's request as did counsel for the mother. Upon hearing oral arguments from the parties the Court reserved decision.
The child J.T. (D.O.B. X/XX/XXXX) was born (during the course of the marriage) between S.R. (hereinafter referred to as "mother") and N.J.M.A. (hereinafter referred to as the "father"). The County filed a neglect petition against the mother on April 15, 2015 which included an application to remove the child from the mother's care alleging the mother was unable to provide safe and suitable housing, that she was an untreated Level 2 sex offender and that the underlying issues which were the basis of prior adjudications of neglect had not been ameliorated. The Court granted the removal application and subsequently adjudicated the child to have been neglected based upon the mother's admission to a portion of the petition.
On July 7, 2015 the County submitted e-mail communications between the caseworker and father which clearly indicated the non-respondent father had notice of the pending neglect proceedings. After due consideration the Court accepted the County's proof of e-mail service of the underlying neglect petition and application for removal.
Subsequent permanency plan hearings were conducted on November 23, 2015 and May 11, 2016 and the County transmitted the permanency hearing reports to the father through electronic means. At the permanency plan hearing on May 11, 2016 Mr. K.H., a caseworker, testified that he engaged in e-mail communication with the father dating back to 2015.
On July 15, 2016 the County filed a petition seeking to terminate the father's parental rights alleging the father had not maintained meaningful communication with the child despite having the ability to do so and not being prevented or discouraged from such communication.
Thereafter, on July 21, 2016, the County filed a Notice of Motion for an Order of Substituted Service along with an affirmation in support of the motion from Mr. H., the caseworker. In his affirmation the caseworker noted that prior to the placement of the subject child with the County the father was deported to the country of Jordan and that the father maintained communication with him via e-mail. Mr. H. also stated that he had been unable to ascertain where the father resides in Jordan except that the father informed him he was in the city of Madaba. The caseworker also affirmed that upon sending e-mail communications to the father that a notification was never received indicating that any of the e-mails were returned as undeliverable'.
Family Court Act § 617 governs the service requirements for proceedings brought to terminate parental rights and sets forth that a summons and petition shall be delivered to the person summoned at least twenty days before the time designated for an appearance before the Court. Although personal service is the preferred method of service FCA § 617 permits alternative means of service after reasonable efforts have been undertaken for personal service.
Furthermore, Family Court Act § 617(c) states that personal service on an individual in a foreign country shall be made in accordance with the provisions of Surrogate's Court Procedure Act § 307. It is only after a finding that personal service would be impracticable under SCPA § 307(3)(c) that the Court may then order substituted service in such manner as the Court directs pursuant to CPLR § 308(5). Upon such a finding CPLR § 308(5) "vests a court with the discretion to direct an alternative method for service of process" ( Astrologo v. Serra, 240 A.D.2d 606, 659 N.Y.S.2d 481 )
The standard or definition by which the Courts make a determination of impracticability is fluid in nature and does not require proof that service was effectuated or that there were actual prior attempts to serve a party. Furthermore, there is no particular standard by which a Court may grant substituted service of process upon a party to an action as each case possess unique facts and must be reviewed individually. ( Safadjou v. Mohammadi, 105 A.D.3d 1423, 964 N.Y.S.2d 801 )
Upon the initial finding that personal service is impractical the Court has broad discretion in determining an alternative means of service. Due process requires that the method of service granted must be reasonably calculated under all of the circumstances. ( Maloney v. Ensign, 43 A.D.2d 902, 351 N.Y.S.2d 244 ) Reasonableness only requires a likelihood that a party will learn of the action and not that the transmission will be received. ( Harkness v. Doe, 261 A.D.2d 846, 689 N.Y.S.2d 586 )
Furthermore, with the common utilization of e-mail as a means of communication Courts have been inclined to entertain and grant requests to allow for service by e-mail. ( Hollow v. Hollow, 193 Misc.2d 691, 747 N.Y.S.2d 704 ) Upon proper application, both New York Courts and Federal Courts have granted e-mail service of process as an appropriate method when statutory methods have proven to be ineffective or impossible. Although not directly set forth in the CPLR as a means of service there is no prohibition provided appropriate circumstances exist. ( Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L, 78 A.D.3d 137, 910 N.Y.S.2d 418 ). Upon granting e-mail service the Court in Baidoo v. Blood–Dzraku further found that electronic mail has "all but replaced ordinary mail as a means of communication" and although not specifically set forth in the statute courts are "routinely permitting it as a form of alternative service." ( Baidoo v. Blood–Dzraku, 48 Misc.3d 309, 5 N.Y.S.3d 709 )
In Alfred E. Mann Living Trust, the Court rejected a challenge as to the validity of service by e-mail upon a party in the Netherlands. The Court further rejected the contention that e-mail does not provide sufficient notice, as an e-mail from a party with whom the recipient has not previously corresponded is likely to be flagged as spam'. ( Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L, 78 A.D.3d 137, 910 N.Y.S.2d 418 )
Courts have also granted e-mail service of process in proceedings commenced under the Family Court Act and the Domestic Relations Law. Upon the petitioner commencing simultaneous actions under Article 5 and Article 6 of the Family Court Act seeking to establish paternity and an award of custody of a minor child the Court granted service upon the respondent by e-mail. ( Matter of Keith X., 124 A.D.3d 1056, ...
To continue reading
Request your trial