        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

303
CAF 12-00562
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF ANNA B. AND WILLIAM B.
------------------------------------------
KEITH C., PETITIONER-APPELLANT;
                                                  MEMORANDUM AND ORDER
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
RESPONDENT-RESPONDENT.


COLUCCI & GALLAHER, P.C., BUFFALO (REGINA A. DEL VECCHIO OF COUNSEL),
FOR PETITIONER-APPELLANT.

JOSEPH T. JARZEMBEK, BUFFALO, FOR RESPONDENT-RESPONDENT.

PAMELA THIBODEAU, ATTORNEY FOR THE CHILDREN, WILLIAMSVILLE, FOR ANNA
B. AND WILLIAM B.


     Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered February 28, 2012. The order dismissed the
petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
the petition is reinstated and the matter is remitted to Family Court,
Erie County, for further proceedings on the petition.

     Memorandum: Petitioner father commenced this proceeding seeking
modification or vacatur of a stay-away order of protection against
him. We note as background that, pursuant to article 6 of the Family
Court Act and upon the father’s default, Family Court (Rosa, J.)
terminated the father’s parental rights with respect to Anna B. and
William B. (children) and also issued an order of protection, which is
the subject of this appeal (termination proceeding). The order of
protection states that it was issued pursuant to articles 3, 7 and 10
of the Family Court Act, and an “order on review” issued in
conjunction therewith provided that the order of protection was issued
under article 6. Pursuant to the order of protection, the father was
required to stay away from the children until the youngest child
reaches the age of 18. Nearly 10 years later, the father filed the
instant petition for modification or vacatur of the order of
protection, claiming “changed circumstances.” Respondent, Erie County
Department of Social Services (DSS), moved to dismiss the petition on
the ground that the father lacked standing to bring the petition
because, inter alia, his parental rights had been terminated. Family
Court (Rodwin, J.) granted the motion and dismissed the petition
without prejudice. The court reasoned that the father lacked standing
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                                                         CAF 12-00562

because the presumption of regularity applied to the termination
proceeding, including the order of protection, and the father failed
to meet his burden of establishing that he was not served with notice
of the petition seeking the order of protection or the order of
protection itself. The father appeals and, under the circumstances of
this case, we reverse.

     We agree with the father that, on these facts, he has standing to
challenge the validity of the order of protection. Contrary to the
contention of DSS, we conclude that the termination of the father’s
parental rights does not bar the father from challenging the order of
protection. Although the termination of the father’s parental rights
would preclude him from thereafter seeking access to or rights with
respect to the children (see e.g. Matter of Gena S. [Karen M.], 101
AD3d 1593, 1595; Matter of April C., 31 AD3d 1200, 1201), the father
does not seek that relief. Instead, as noted, the father seeks
modification or vacatur of the order of protection. Pursuant to
Family Court Act § 656, the court may issue an order of protection in
conjunction with any other order issued pursuant to article 6, i.e.,
an order terminating parental rights. We conclude that the order
terminating the father’s parental rights is separate and distinct from
the order of protection entered in conjunction with that termination
order. Thus, the father has standing to challenge the validity of
that separate order of protection.

      We also agree with the father that the court improperly
dismissed the petition. During the proceedings at issue, the father
contended that he never had notice of either the DSS petition seeking,
inter alia, an order of protection or the order of protection itself.
As noted, in dismissing the petition, the court reasoned that the
presumption of regularity applied to the proceedings giving rise to
the order of protection. The presumption of regularity assumes that
statutory requirements, including those regarding service, were
followed (see People v Dominique, 90 NY2d 880, 881). Here, however,
inasmuch as it seeks dismissal of the petition, DSS has the burden to
establish that it properly served the father so as to obtain
jurisdiction over him with respect to the order of protection (cf.
generally Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589).
“Ordinarily, a process server’s affidavit of service establishes a
prima facie case as to the method of service and, therefore, gives
rise to a presumption of proper service” (id.; see generally Family Ct
Act §§ 153-b, 154). DSS, however, failed to meet that burden inasmuch
as it failed to submit such an affidavit, and the record is devoid of
evidence that the father was served with either the DSS petition
giving rise to the order of protection or the order of protection
itself. Consequently, we conclude that the court erred in granting
the motion to dismiss, and we reinstate the petition.

     In view of our determination, we do not address the father’s
remaining contentions.

Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
