Alleged to Be an Abandoned Child. Comm'r of the Schenectady Cnty. Dep't of Soc. Servs. v. Ee (In re FF)

198 A.D.3d 1134

156 N.Y.S.3d 477

In the MATTER OF KHAVONYE FF., Alleged to be an Abandoned Child.

Commissioner of the Schenectady County Department of Social Services, Respondent;

v.Latasha EE., Appellant.

(And Another Related Proceeding.)

531439

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 15, 2021

Decided and Entered: October 21, 2021

Michelle I. Rosien, Philmont, for appellant.

Christopher H. Gardner, County Attorney, Schenectady (Sarah Petraccione of counsel), for respondent.

Veronica Reed, Schenectady, attorney for the child.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeal from an order of the Family Court of Schenectady County (Blanchfield, J.), entered February 21, 2020, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be abandoned, and terminated respondent's parental rights.

Respondent is the mother of a child (born in 2011) who has been in petitioner's care and custody since December 2017 when she was removed from respondent's care due to allegations of alcohol abuse and homelessness.¹ In August 2019, petitioner commenced this proceeding to terminate respondent's parental rights on the ground of abandonment. Following a fact-finding hearing, Family Court determined that respondent had abandoned the child and terminated her parental rights.² Respondent appeals, and we reverse.³

"A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the abandonment petition, although able to do so and not prevented or discouraged from doing so by petitioner" ( Matter of Joseph D. [Joseph PP.], 193 A.D.3d 1290, 1291, 147 N.Y.S.3d 231 [2021] [internal quotation marks and citations omitted]; see Social Services Law § 384–b [5][a] ; Matter of Mason H. [Joseph H.], 31 N.Y.3d 1109, 1110, 80 N.Y.S.3d 211, 105 N.E.3d 350 [2018] ). It is presumed that a parent has the ability to visit and/or communicate with his or her child and, therefore, "[o]nce the petitioning agency establishes that the parent failed to maintain contact with his or her child, the burden shifts to the parent to prove an inability to maintain contact or that he or she was prevented or discouraged from doing so by the petitioning agency" ( Matter of Micah L. [Rachel L.], 192 A.D.3d 1344, 1344, 143 N.Y.S.3d 747 [2021] [internal quotation marks and citation omitted]; see Social Services Law § 384–b [5][a] ; Matter of Joshua M. [Brittany N.] , 167 A.D.3d 1268, 1269, 89 N.Y.S.3d 777 [2018] ).

The only evidence introduced by petitioner at the fact-finding hearing was the testimony of petitioner's caseworker. The caseworker, who was assigned to respondent's case in October 2018, testified that respondent was granted supervised visitation with the child every other week, to be supervised by Northeast Parent & Child Society, which required respondent to confirm her attendance with Northeast staff on the day of each scheduled visitation. The caseworker testified that, in the six-month period preceding the filing of the subject abandonment petition – which ran from February 27, 2019 to August 27, 2019 – respondent only exercised her supervised visitation on three occasions, once in March 2019, once in April 2019 and once in May 2019.⁴ According to the caseworker, respondent did not provide her with any letters or gifts to give to the child during this time. The caseworker, however, only observed two of these visitations, each for only a limited period of time, during which she acknowledged that respondent brought snacks for the child. Respondent was otherwise precluded from making any other attempts to contact the child – i.e., telephone calls – outside of her scheduled supervised parenting time. The caseworker further acknowledged that, in June 2019, respondent was hospitalized with an injury that required emergency brain surgery, which prevented her from exercising one of her scheduled visitations that month, and respondent subsequently executed a medical release so that petitioner could verify same. Further, although the caseworker initially indicated that she had not had any contact with respondent since May 2019, during cross-examination she indicated that respondent had, in fact, called her one or two times during the relevant time period.

Petitioner, meanwhile, offered no documentary evidence in support of its petition memorializing any of the various attempts that either petitioner or Northeast made to contact respondent during the subject time period⁵ and did not offer testimony from the staff at Northeast who were responsible for coordinating and/or supervising respondent's visitations. Accordingly, on the record before us, we find that petitioner failed to meet the burden of establishing, by clear and convincing evidence, that respondent's conduct evinced an intent to forgo her parental rights by failing to visit the child and/or communicate with the child or agency during the six months preceding the petition (see Matter of Mason H. [Joseph H.], 31 N.Y.3d at 1110, 80 N.Y.S.3d 211, 105 N.E.3d 350 ; Matter of Darrell J.D.J. [Kenneth R.], 156 A.D.3d 788, 789–790, 67 N.Y.S.3d 49 [2017] ; Matter of Elegant R.C., 60 A.D.3d 1386, 1386, 876 N.Y.S.2d 797 [2009] ; Matter of Adams H., 28 A.D.3d 213, 213–214, 812 N.Y.S.2d 80 [2006] ; Matter of Jeffrey M., 283 A.D.2d 974, 975, 723 N.Y.S.2d 790 [2001] ; compare Matter of Micah L. [Rachel L.], 192 A.D.3d at 1344–1345, 143 N.Y.S.3d 747 ; Matter of Joshua M. [Brittany N.], 167 A.D.3d at 1269, 89 N.Y.S.3d 777 ).⁶

Even assuming, without deciding, that petitioner made a prima facie showing that respondent failed to maintain adequate contact with the child during the requisite time period, petitioner failed to controvert respondent's testimony in opposition, wherein respondent indicated that, during visitations, she provided the child with shoes, clothing, toys, coloring and educational books and cards, attended service plan reviews, notified petitioner of...