DECISION AND ORDER On February 5, 2020, the maternal aunt of ten-year-old TN filed a petition against TN’s father for guardianship of TN after his mother passed away. On February 20, 2020, the aunt, by her attorney, filed the instant motion to waive service of process upon TN’s father. In her moving papers, the aunt alleges that TN has been abandoned by his father and as such, Surrogate’s Court Procedure Act §1705 (2) allows for dispensing with service based upon abandonment. In addition, she argues that there would be no benefit to bringing the father back into TN’s life after TN suffered the loss of his mother. Further, the aunt asserts that neither she nor TN have any idea of the whereabouts of the father. Before this Court are questions of tremendous constitutional significance; first, the basic right to due process, and second, a parent’s fundamental right to the care and custody of his or her child. First, the Court will address the issue of due process. “The Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint” (Washington v. Glucksberg, 521 US 702, 719 [1997]). “The most familiar [function] of that Clause is to provide a guarantee of fair procedure in connection with any deprivation of life, liberty, or property by a State” (Collins v. City of Harker Heights, Tex., 503 US 115, 125 [1992]). The concept of due process — both substantive and procedural — is one of the cornerstones of our legal system, and requires stringent and consistent adherence. Next, the Court will address the legal significance of “abandonment” in the context of judicial proceedings and the resulting implications on parents’ rights relevant to the instant matter. “The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court” (Troxel v. Granville, 530 US 57, 65 [2000]). Historically, “[t]he father [was] the natural guardian of his infant children, and in the absence of good and sufficient reasons shown to the court, such as ill usage, grossly immoral principles or habits, want of ability, &c., [was] entitled to their custody, care and education” (People ex rel. Nickerson v. ____, 19 Wend 16, 16 [Supreme Court of Judicature of New York 1837]). Today, “neither parent has a prima facie right to custody” (Domestic Relations Law §70 [a]). However, just because fathers are no longer presumptively entitled to custody does in no way subjugate their rights within the context of custody and guardianship proceedings. Finally, the Court will examine the petitioner’s analysis of and reliance upon In Re Alonso R.L.V. (147 AD3d 1070 [2d Dept 2017]), Matter of Cristal M.R.M. (118 AD3d 889 [2d Dept 2014]), and Luis R. v. Maria Elena G. (120 AD3d 581 [2d Dept 2014]) and their applicability to the instant matter. Fundamental Right to Due Process “The fundamental requisite of due process of law is the opportunity to be heard” (Grannis v. Ordean, 234 US 385, 294 [1914]). “This right to be heard has little reality or worth unless one is informed that the matter is pending and can chose for himself whether to appear or default, acquiesce or contest” (Mullane v. Central Hannover Bank & Trust Co., 339 US 306, 314 [1950]). “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (id.). “Pursuant to CPLR 304 a special proceeding is commenced and jurisdiction acquired by service of a notice of petition or order to show cause” (Bell v. State University of New York at Stony Brook, 185 AD2d 925, 925 [2d Dept 1992]). CPLR §403 (d) provides that “the court may issue ‘an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein’” (id.). “[T]he mode of service provided for in the order to show cause is jurisdictional in nature and must be literally followed” (Bell at 925). A guardianship proceeding is a special proceeding pursuant to the CPLR and is governed by Article 4 therein. A special proceeding is commenced by the filing of a petition (CPLR §402). “A notice of petition shall be served in the same manner as a summons in an action” (CPLR §403 [c]). However, “the court may grant an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein” (CPLR §403 [d]). In this matter, the petitioner commenced the proceeding by the filing of a petition and the court issued an order to show cause which directed service in the following manner: “Personal Service of a copy of this order together with the papers upon which it is granted, upon the father on or before XXXX, 2020, be deemed sufficient service” (Order to Show Cause, Katz, J. [February 13, 2020]). CPLR §308 sets forth the acceptable methods of personal service upon a natural person. If such methods are “impracticable,” a party may move the court for an order directing a different manner of service (CPLR §308 [5]). Typically, this type of motion includes a detailed account of the various unsuccessful attempts at personal service. However, in certain circumstances, a party may be successful on a motion for court-fashioned service pursuant to CPLR §308 (5) by demonstrating that attempts at traditional service would be “futile” (Liebeskind v. Liebeskind, 86 AD2d 207 [1 Dept 1982], affd 58 NY2d 858 [1983]), as a court cannot compel the impossible. The various methods of alternate service are limited only by the facts of the case and one’s imagination (see e.g. Hollow v. Hollow, 193 Misc2d 691 [Sup Ct Oswego County 2002]). The aunt did not try to effectuate personal service and fail, nor did she move this Court for alternate service based upon either failed efforts or an explanation of why attempts would be futile. Rather, she seeks to dispense with the requirement altogether based on a misguided use and interpretation of SCPA §1705 (2). Her failure to make any attempt to serve the respondent is insufficient to satisfy even the basic requirements of due process. “Abandonment” in the Context of Judicial Proceedings In general, a biological parent has a right superior to that of all others to raise his or her child as he or she sees fit, absent a judicial determination to the contrary. The aunt alleges that TN was abandoned by his father. Abandonment is a legally defined term within the context of a neglect proceeding pursuant to article 10 of the Family Court Act. A child is “abandoned…by his parent” “if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child” (Family Court Act §1012 [f] [ii]; Social Services Law §384-b [5]). Even in those proceedings in which a parent is alleged to have abandoned his or her child, service of process upon that parent is required by statute (Family Court Act §1036), and a fact-finding hearing may not commence until certain findings regarding notice have been made (Family Court Act §1041). A finding of abandonment must be based upon a preponderance of the evidence after a hearing1 (Family Court Act §§1046 [b] [i]). Surrogate Court’s Procedure Act §1705 (1) (a) states, in relevant part, that “[u]pon presentation of the [guardianship] petition, process shall issue to the parent or parents…”. Subsection two provides that “No process shall be necessary to a parent who has abandoned the infant…or who is otherwise judicially deprived of the custody of the infant…” (emphasis added). As set forth above, this requires a judicial determination based upon statutory procedures and standards of evidence. There is no question that when proceedings regarding the guardianship of the person of a minor are commenced in the family court, the provisions of the Surrogate’s Court Procedure Act “shall apply to the extent that they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of [the Family Court Act]” (Family Court Act §661 [b]). Abandonment, deprivation of civil rights, divorce, and incompetency are all terms which have specific meanings within the context of specific judicial proceedings. This is emphasized by the subsequent language in SCPA §1705 (2), which states, “…or who is otherwise judicially deprived of the custody of the infant…” (emphasis added). The plain meaning of this language indicates that service is not required after one of the specifically enumerated judicial determinations has been made. Or, more generally, after a person has been otherwise judicially deprived of custody of the infant. A judicial determination must have been previously made for the term “abandoned child” to apply in this type of proceeding. The aunt does not cite, nor does this Court find in a search of its records, any proceeding in which abandonment was alleged — let alone proven — against the father. While the aunt references a prior order of supervised visitation, such an order merely limited the scope of the father’s access with TN; it did not affect his legal rights as TN’s father. Application of In Re Alonso R.L.V., Matter of Cristal M.R.M. and Luis R. v. Maria Elena The aunt cites In Re Alonso R.L.V. (147 AD3d 1070 [2d Dept 2017]), Matter of Cristal M.R.M. (118 AD3d 889 [2d Dept 2014]), and Luis R. v. Maria Elena G. (120 AD3d 581 [2d Dept 2014]) in support of her motion to dispense with service. However, each of these cases is readily distinguishable from the instant matter before this Court. In In Re Alonso R.L.V., the petitioner made an application to dispense with service. The family court denied the application and the mother appealed. The Appellate Division, Second Department held that the family court providently exercised its discretion in denying the application. The facts in that case are fundamentally different from the instant matter and as such, it is unpersuasive as support for the aunt’s motion. In the other two cases cited by the aunt, Matter of Cristal M.R.M. (118 AD3d 889 [2d Dept 2014]) and Luis R. v. Maria Elena G. (120 AD3d 581 [2d Dept 2014]), both involved the question of the family court’s determination of abandonment and denial of special immigrant juvenile status findings after a hearing — not as a means to dispense with service. As such, these two cases are inapposite to the instant matter. A more compelling case is Matter of Melissa B. v. Dean S. (89 AD3d 1018 [2d Dept 2011]). In that matter, the petitioner-aunt sought guardianship of the subject child. The family court determined that the mother of the child was entitled to notice of the petition (id. at 1019). On appeal, the Appellate Division found that the family court “properly determined” that the mother was “entitled to notice of the instant proceedings” because affording the mother the opportunity to be heard would allow the family court the ability to make an informed determination (id.). In the instant matter, the aunt alleges in her supporting papers a number of reasons that, if proven, would be considered by this Court in determining the custody or guardianship of TN. However, such arguments would be appropriately weighed in a best interests determination — not as the basis for granting a waiver of service. The issue of the father and/or the aunt’s involvement in TN’s life is the fundamental question for the Court to determine in this matter. The aunt’s allegations cannot be the basis of dispensing with service and essentially adjudicating the ultimate issue before the case even begins. Conclusion Without proper service, this Court lacks personal jurisdiction over the respondent (see MRC Receivables Corp. v. Taylor, 57 AD3d 1000, 1001 [2d Dept 2008]). To make any other determination in this matter would not only offend, but would substantially erode, the fundamental right to due process and would have far reaching implications in nearly all manner of legal proceedings. In consideration of both the letter and the spirit of due process, the aunt’s motion to dispense with service must be denied. After the within determination had been made, this Court discovered that, subsequent to the filing of the instant motion, the father filed petitions seeking custody of TN. This fact serves to underscore the vital importance of strict adherence to procedures established to safeguard and promote due process as one of the basic tenets of our legal system. Because New York State is currently in a period of “pause” due to the Covid-19 public health crisis, a date for preliminary proceedings and the issuance of service papers will be determined after the courts have resumed normal operations. Accordingly, it is hereby ORDERED that the motion to dispense with service is denied. Dated: May 7, 2020
