Opinion
XXXXX.
Decided April 4, 2011.
Matthew Riordan, Esq., Family Court Legal Services, New York City Administration for Children Services, Bronx, NY, for the Petitioner.
Erin Schechter, Esq. The Bronx Defenders, Bronx, NY, for the Respondent.
Carolyn Kwon, Esq., The Legal Aid Society, Bronx, NY, for the Children.
Introduction
This is a case in which the New York City Administration for Children's Services ("ACS") moved to withdraw its petition against a man it alleged to have repeatedly raped his own eleven year-old daughter. ACS moved to withdraw for lack of personal jurisdiction. This court finds that it has personal jurisdiction over the respondent and denies ACS's application to withdraw its petition.
Procedural History
On December 6, 2010, ACS commenced the instant Family Court Act Article 10 abuse matter. The Petition alleges the following:
1.Personnel from the New York Police Department called in a report on November 24, 2010, alleging that the respondent father has been having sexual intercourse with the subject child Tracy [C.] [now 13 years old] on a regular basis. The report further alleges that the most recent incident occurred during September of 2010. Further, the subject child's mother learned of the sex abuse on November 24, 2010, when she found a nude photograph that Tracy had sent to the respondent father via cellular phone.
2.On or about November 24, 2010, the subject child Tracy [C.] stated to an ACS caseworker that the respondent father began having sexual intercourse with her when she was eleven years old. Tracy further stated that the respondent father has had sexual intercourse with her on numerous occasions and he also has inserted his fingers into her vagina, performed oral sex on her and fondled her breasts. Tracy also stated that the respondent father asked her to send him pictures of her vagina. Finally, Tracy also stated that the respondent father told her that their sexual relationship is their secret until the day they die.
When ACS first appeared on this matter on December 6, 2010, Petitioner indicated that Respondent Father lived in Georgia and was believed to have last been in New York in November 2010 during a Thanksgiving visit. ACS further noted that the mother and the children had relocated from Texas and had been living in New York since September 2010. The prior judge ordered personal service of the Summons and Petition on the Respondent Father, paroled the children to their mother under ACS supervision, and issued a Temporary Order of Protection against the Respondent Father on behalf of the Non-Respondent Mother and the Subject Children preventing the father from having any contact with the mother and children.
The other two subject children, sisters aged 3 years and 10 months respectively at the time of the filing of the petition, are alleged to be derivatively abused or neglected children.
On December 14, 2010 and January 18, 2011, Petitioner returned to court for Return of Process and requested additional time in which to serve the father in Georgia. On the first two dates of proceedings in the case, the prior judge inquired as to ACS's basis for jurisdiction, and on January 18, noted that there was authority allowing the Court personal jurisdiction over the father. On that date, the Court continued all prior orders and adjourned the case until March 1, 2011 to give ACS additional time in which to effectuate service on the Respondent Father. The case was transferred to this court in February of 2011.
On March 1, 2011, ACS returned to court for Return of Process. Respondent Father appeared in court for the first time and counsel accepted assignment as to the representation of the Respondent Father for the limited purpose of contesting jurisdiction. Respondent Father did not accept service of the petition. Upon inquiry of the Court, ACS indicated that Tracy sent the nude photograph discussed in the petition after she and her mother and sisters had moved back to New York in September 2010. Also on that date, Petitioner made an oral application to this court to voluntarily withdraw the Article 10 abuse petition without prejudice contending that this court does not have personal jurisdiction because the Respondent Father is a resident of Georgia and the alleged acts giving rise to the petition occurred in Texas. The Court declined ACS's application to withdraw the petition, noting the serious nature of the allegations; granted an application by the Attorney for the Children to submit a brief on the jurisdictional issue; and requested that ACS and the father's attorneys put their positions in writing as well. The Court, having reviewed the briefs and applicable law, denies Petitioner's application to withdraw the petition.
A submission by the Attorney for the Children contains details of a November 2010 arrangement allegedly brokered by Respondent Father wherein he sent Tracy $150 after she moved to New York in exchange for his daughter "texting" him nude pictures of herself. The affidavit states that Tracy reportedly sent her father four or five photographs and stated that her father "texted" saying that he kept his part of the deal and she had not.
Jurisdiction in New York Family Court Act Article 10 Abuse Cases
Child neglect and abuse matters involving out-of-state parties such as the instant one constitute "child custody proceedings" and expressly fall under New York Domestic Relations Law Article 5-A, the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). See McKinney's NY D.R.L. § 75-a(4) and related commentary by Professor Merril Sobie. The legislative intent of the UCCJEA is to "provide an effective mechanism to obtain and enforce orders of custody and visitation across state lines and to do so in a manner that ensures that the safety of the children is paramount and that victims of domestic violence and child abuse are protected." McKinney's NY D.R.L. § 75(2). See also Hector G. v. Josefina P., 771 N.Y.S.2d 316, 324 (NY Sup. 2003).
As the commentary notes, D.R.L. § 75-a was modified to include child protective proceedings and the resulting legislation supercedes the Court of Appeals decision in Matter of Sayeh R., 91 NY2d 306 (1997). In Sayeh R., the Court determined that it had personal jurisdiction over a respondent living in Florida where the child and custodial parent lived in New York but the alleged neglect took place in Florida when the children visited the Respondent there. The Court stated that the Respondent "engaged in some purposeful activity [here] . . . in connection with the matter in suit." ( citing Parke-Bernet Galleries v. Franklyn, 26 NY2d 13, 16 (NY 1970)).
The proposed grant of Petitioner's application would result in the abuse allegations being unaddressed by any Family Court, leaving Tracy and her sisters vulnerable to potential future harm. To prevent such an outcome, the Court may invoke its temporary emergency jurisdiction powers in such a matter "if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child, a sibling or parent of the child." NY D.R.L. § 76-c(1). See also Santiago v. Riley , 79 AD3d 1045, 1046 (2d Dep't 2010). Significantly, where, as here, "a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction . . . a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child." NY D.R.L. § 76-c(2).
In this case, no other state has jurisdiction and no prior orders of visitation were entered in any other state including Texas, where the Respondent once lived. Further, although Texas is the state in which the mother, children, and father lived for a significant period prior to the mother and children's relocation to New York, ACS has stated that Respondent Father is now believed to live in Georgia.
However, an undated affidavit signed by the Respondent Father and submitted to the Court on March 21, 2011 states that the Respondent Father "ha[s] lived" in Houston, Texas since 2008.
In deciding whether to exercise its emergency jurisdiction powers, a court will consider "whether a return to the home jurisdiction would place the child in imminent risk of harm." Matter of Vanessa E., 190 AD2d 134, 137 (1st Dep't 1993) citing Matter of Michael P. v. Diana G., 156 AD2d 59, 66 (1st Dep't 1990). Given the severity of the allegations in the petition and the submission by the Attorney for the Children, including an affidavit from its social worker who interviewed Tracy, an emergency exists.
The affidavit details the nature of the repeated sexual abuse allegedly suffered by Tracy when she was living in Texas that continued, via illicit text messages, after she moved to New York. The affidavit further states that Tracy "stated that she does not want to see her father any time soon. Her father tried calling her, but Tracy hung up. Her father also tried texting her saying that he wants Tracy, her mother, and him to sit down and talk. Tracy stated that ACS explained to her to contact the police if her father ever tries to contact her again."
It is clear that it would be contrary to Tracy's welfare to return to Texas (or to go to Georgia, where her father reportedly lives) and this Court is an appropriate forum to protect the New York State-resident children from potential sexual abuse. See Callahan v. Smith , 23 AD3d 957 , 957-9 (3d Dep't 2005) (temporary emergency jurisdiction appropriate where out-of-state resident respondent father allegedly made "disturbing accusations [directed towards the mother] and/or requests of a sexual nature concerning her children" and threatened to kill the mother). See also Severio P. v. Donald Y., 128 Misc 2d 539, 545 (NY Fam. Ct. 1985) (court's invocation of emergency jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act ("UCCJA"), the UCCJEA's predecessor rule, proper where child was "in such a state of emotional turmoil and crisis" that a return to his home state and the care of his allegedly abusive grandparent would "seriously jeopardize his well-being and place him at great risk"); Maureen S. v. Margaret S., 184 AD2d 159, 164-5 (2d Dep't 1992) (finding in a custody matter involving alleged child sexual abuse that the Court properly invoked its emergency jurisdiction powers under the UCCJA).
Moreover, the family has significant connections to the State of New York. The submission from the Attorney for the Children states that Tracy was born in New York and at some point, moved to Texas. Tracy moved back to New York with her mother and sisters "around October 2010" and is enrolled in eighth grade at a public school in New York.
ACS has stated that Non-Respondent Mother and her sisters moved to New York in September 2010; an affidavit submitted by the Respondent Father indicates that the children moved "around September 2010"; and an affidavit submitted by the Attorney for the Children indicates that the mother and children returned to New York "around October 2010."
Importantly, the alleged abuse continued in New York. Allegedly, Tracy, at the request and encouragement of Respondent Father, sent numerous text messages to Respondent Father including four or five pictures of herself in the nude. The alleged illicit text messages were sent since Tracy moved back to New York and the Court finds that the allegations related to the text messages would constitute abuse as defined in the Family Court Act § 1012(e).
Service of Process Outside New York State
Petitioner cites In the Matter of Maxine R., 145 Misc 2d 768 (NY Fam. Ct. 1989) for the proposition that FCA § 1036 "does not specifically authorize service of process without the state, nor does it authorize substituted service unless it can be effectuated within New York's boundaries." The Court notes that the New York State Legislature, one year after Maxine R., modified FCA § 1036 to allow for service out of state in child protective proceedings where, as here, the child resides in New York and the alleged abuse or neglect occurred within the state. If the out-of-state parent does not appear after service, the court may proceed without him. FCA § 1036(c). See also David J. Lansner, Outside Counsel 1990 Legislation on Family Court, Children and Families, NYLJ, Aug. 30, 1990, Vol. 204, No. 43, col 1; C.V. v. T.B. , 19 Misc 3d 577 , 580 (NY Fam. Ct. 2008) (family offense case in which the court determined that it had personal jurisdiction over out-of-state Respondent who had allegedly made harassing phone calls to Petitioner, a New York resident, and Respondent had multiple other contacts with New York).
In any event, the FCA § 1036(c) requirement that the alleged abuse or neglect occurred in New York no longer controls and jurisdiction is determined by applying UCCJEA principles and "[e]very expansive UCCJEA procedural alternative (including service) should be considered and employed whenever practicable within the Article 10 framework." McKinney's FCA § 1036 and related commentary citing In re Kali-Ann E., 27 AD3d 796, 797-8 (3d Dep't 2006) (pursuant to the UCCJEA, New York Family Court had continuing jurisdiction in an Article 10 abuse and neglect case, including over acts allegedly occurring in another state, and personal service upon the out-of-state Respondent satisfied the personal jurisdiction requirements). See also Hofelich v. Garrow , 69 AD3d 1254 , 1256 (3d Dep't 2010) (detailing the options available for service on an out-of-state Respondent pursuant to D.R.L. § 75-g).
The Court has considered all of the additional arguments presented by ACS and Respondent and finds them to be without merit.
Conclusion
Accordingly, for the reasons set forth above, the Court denies Petitioner's application to withdraw the petition and hereby ORDERS Petitioner to serve Respondent Father pursuant to the provisions of NY D.R.L. § 75-g. All parties are to appear before the Court on May 4, 2011, at 11:30 a.m. Petitioner is to submit proof of service on that date.
This constitutes the decision and order of the Court.