Opinion
No. 102081/2015.
02-20-2017
ANONYMOUS, Petitioner, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES and T.E.S., Respondents.
Petitioner Pro Se. Linda Fang, Assistant Attorney General, New York, for Respondent New York State Office of Children and Family Services.
Petitioner Pro Se.
Linda Fang, Assistant Attorney General, New York, for Respondent New York State Office of Children and Family Services.
LUCY BILLINGS, J.
I. BACKGROUND
Petitioner asks that respondent New York State Office of Children and Family Services (OCFS) (1) annul Acknowledgments of Paternity of her two children filed with OCFS in February and March 2015 by a person who is not the father of her children and who filed the acknowledgments maliciously to harass her and (2) remove his falsely placed name from OCFS's Putative Father Registry. NY Est. Powers & Trusts Law (EPTL) § 4–1.2(a)(4) ; NY Soc. Serv. Law (SSL) § 372–c. She also seeks to enjoin OCFS from placing any other name on the Putative Father Registry as the father of her two children. The registry is a database of the names and addresses of putative fathers of children in New York who were born to an unmarried mother.
In an order dated November 18, 2015, the court (Schoenfeld, J.) permitted petitioner to proceed anonymously and to redact the names of her children and the person who filed the acknowledgments. 22 N.Y.C.R.R. §§ 202.5(e), 216.1. SSL § 372–c(5) prohibits OCFS from disclosing information about persons on the registry except to a court or an "authorized agency." Petitioner does not claim that OCFS has disclosed any such information.
II. UNDISPUTED FACTS
Petitioner attests that her children were conceived through her selection of a specific anonymous sperm donor, who holds no rights or responsibilities to the children, and who is not T.E.S., the person who filed the acknowledgments. No father is named on the children's birth certificates.
In 2009, well before petitioner's first child was born in February 2011, while petitioner was residing in California, she became acquainted with T.E.S., who was a substance abuser and was arrested frequently. When she ended her relationship with him after a few months, he began harassing her physically and emotionally. She obtained an order of protection restraining his behavior. He then was arrested and incarcerated repeatedly for violating the order. After she and her children relocated to New York, he has continued his harassment through threatening telephone and social media communications.
III. PROCEDURAL REQUIREMENTS FOR THE RELIEF PETITIONER SEEKS
OCFS has moved to dismiss the petition based on its failure to state a claim. C.P.L.R. § 3211(a)(7). OCFS maintains that petitioner has not followed the procedure for vacating Acknowledgments of Paternity in EPTL § 4–1.2(a)(4) and that OCFS has not violated any law by denying her request to vacate T.E.S.'s acknowledgments, because EPTL § 4–1.2(a)(4) requires a court order for OCFS to remove him from the Putative Father Registry. Nevertheless, OCFS assures that it will comply with any such order. OCFS, conceding that it accepts Acknowledgments of Paternity and controls the Putative Father Registry, does not explain why it is not a necessary party to an action or proceeding for the court in that action or proceeding to order OCFS to expunge Acknowledgments of Paternity and remove a putative father from the registry. SSL § 372–c.
In opposition to OCFS's motion, petitioner for the first time claims that T.E.S.'s Acknowledgments of Paternity were deficient under EPTL § 4–1.2(a) when filed, because the acknowledgment form failed to provide for a witness' signature, so that OCFS violated the statute by accepting the acknowledgments. EPTL § 4–1.2(a)(2)(B)(i). OCFS's acknowledgment form, used by T.E.S., however, includes an acknowledgment before a notary public, which meets the statutory requirements.
Although EPTL § 4–1.2(a)(4) refers to a "motion" to vacate an Acknowledgment of Paternity, petitioner otherwise has followed the procedure in § 4–1.2(a)(4) by filing this petition within one year after receiving notice from OCFS that T.E.S. had filed his Acknowledgments of Paternity, except that she did not name him as a respondent along with respondent OCFS. OCFS agrees that, once T.E.S. is joined in this proceeding, an order to OCFS to remove him from the Putative Father Registry will comply with EPTL § 4–1.2(a)(4).
Consequently, in an order dated February 11, 2016, the court ordered OCFS to provide to petitioner T.E.S.'s last known address; petitioner to serve him with her petition, her order to show cause, and a notice of a subsequent return date and time; and T.E.S. to appear at that time in Part 46 for a further hearing on the petition. By filing Acknowledgments of Paternity or attempting to file one in the future in New York, T.E.S. has submitted to the New York courts' jurisdiction. C.P.L.R. §§ 302(a)(1) and (2) ; Fischbarg v. Doucet, 9 N.Y.3d 375, 380–81, 849 N.Y.S.2d 501, 880 N.E.2d 22 (2007) ; Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71–72, 818 N.Y.S.2d 164, 850 N.E.2d 1140 (2006) ; Front, Inc. v. Khalil, 103 A.D.3d 481, 482–83, 960 N.Y.S.2d 79 (1st Dep't 2013) ; Lawati v. Montague Morgan Slade Ltd., 102 A.D.3d 427, 428–29, 961 N.Y.S.2d 5 (1st Dep't 2013).
IV. DISPOSITION
Upon OCFS's and petitioner's compliance with the order dated February 11, 2016, and without further opposition, the court converts this proceeding to a plenary action and the petition to a motion pursuant to EPTL § 4–1.2(a)(4), C.P.L.R. § 103(b) and (c) ; Oglesby v. McKinney, 7 N.Y.3d 561, 565, 825 N.Y.S.2d 431, 858 N.E.2d 1136 (2006) ; Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34, 41, 290 N.Y.S.2d 881, 238 N.E.2d 295 (1968) ; Thornton v. New York City Bd./Dept. of Educ., 125 A.D.3d 444, 445, 3 N.Y.S.3d 339 (1st Dep't 2015) ; Scarano v. City of New York, 86 A.D.3d 444, 445, 926 N.Y.S.2d 38 (1st Dep't 2011), and, upon service of this order on OCFS, now orders it to expunge any Acknowledgments of Paternity of the two identified children that T.E.S. has filed or will file with OCFS. OCFS also shall remove and exclude permanently his name as the father of the two identified children from the Putative Father Registry. The Acknowledgments of Paternity that T.E.S. filed with OCFS in February and March 2015 and the corresponding entries in OCFS's Putative Father Registry bear numbers 150204000632, 150204000633, 150325000220, and 150325000221. OCFS has agreed further that, when it has complied with this order, it will so notify the mother in writing.
The court enjoins T.E.S., upon service of this order, from filing any Acknowledgment of Paternity of the two identified children in New York. The court denies any further relief sought by the original petition.
This decision constitutes the court's order and judgment. The court will provide copies to the appearing parties.