Broome Cnty. Dep't of Soc. Servs. v. Kimberly X. (In re Dakota W.)

189 A.D.3d 2004

137 N.Y.S.3d 818

In the MATTER OF DAKOTA W. and Others, Alleged to be Abandoned Children.

Broome County Department of Social Services, Respondent;

v.Kimberly X. et al., Appellants.

529040

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

Calendar Date: November 24, 2020

Decided and Entered: December 31, 2020

Sandra M. Colatosti, Albany, for Kimberly X., appellant.

Lisa K. Miller, McGraw, for Chad W., appellant.

Broome County Department of Social Services, Binghamton (Christopher A. Curley of counsel), for respondent.

Tracy A. Donovan Laughlin, Cherry Valley, attorney for the children.

Before: Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered March 28, 2019, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject children to be abandoned, and terminated respondents' parental rights.

In September 2018, petitioner commenced this proceeding alleging that respondent Kimberly X. (hereinafter the mother) and respondent Chad W. (hereinafter the father) abandoned their three children (born in 2015, 2016 and 2017) during the six-month period from March 20, 2018 through September 20, 2018, and seeking to terminate their parental rights.¹ Each child was placed in foster care within days of their respective births. A fact-finding hearing was held on February 7, 2019 and was continued on February 11, 2019. The mother and the father failed to appear on either date, and the hearing proceeded with petitioner presenting proof. Family Court found that petitioner established by clear and convincing evidence that the children were abandoned and terminated their parental rights. As a result, Family Court ordered that their guardianship and custody rights be transferred to petitioner. The mother and the father appeal.²

The mother contends that her right to due process was violated because she was denied an opportunity to participate in the fact-finding hearing in a meaningful way. "The Due Process Clauses of both the U.S. and N.Y. Constitutions protect a parent's right to be present throughout a proceeding implicating the termination of parental rights" ( Matter of Eileen R. [Carmine S.], 79 A.D.3d 1482, 1482–1483, 912 N.Y.S.2d 350 [2010] ; see U.S. Const, 5th Amend; NY Const, art I, § 6 ; Matter of Colby II. [Sheba II. ], 145 A.D.3d 1271, 1273, 43 N.Y.S.3d 587 [2016] ). "This right to be present, however, is not absolute and must be balanced with the child[ren]'s right to a prompt and permanent adjudication" ( Matter of Eileen R. [Carmine S.], 79 A.D.3d at 1483, 912 N.Y.S.2d 350 [citation omitted]; see Matter of Chloe N. [Joshua N.], 143 A.D.3d 1114, 1116, 39 N.Y.S.3d 286 [2016] ).

The mother was assigned counsel to represent her during this proceeding. The mother appeared for a conference on January 24, 2019 and received notice of the hearing scheduled for February 7, 2019. The mother did not appear for the hearing. It was presumed that the mother was caring for the father, who allegedly had a grand mal seizure that morning. However, the mother did not contact Family Court nor her attorney to request an adjournment or to appear by telephone. Regarding the February 11, 2019 hearing, the mother's attorney stated that she contacted the mother and left her a message as to the date of the hearing, but the mother never contacted her. Additionally, the mother did not contact Family Court to request an adjournment; instead, she failed to appear for the hearing without explanation. The record shows that the mother voluntarily absented herself from the proceedings and did not request an adjournment, and her attorney adequately represented her in her absence by cross-examining petitioner's witnesses, making timely and valid objections and presenting a well-prepared closing argument. More importantly, the children have been in foster care their entire lives. The attorney for the children advocated for petitioner to move for a default judgment or for the court to proceed without the parents as "[t]his has been going on long enough." Under these circumstances, when balancing the mother's interests and the interests of the children, Family Court did not deprive the mother of her due process rights to be present and to participate in the hearing (see Matter of Jacqueline E.S.B. [Daniel B.], 160 A.D.3d 828, 829, 74 N.Y.S.3d 612 [2018] ; Matter of Elizabeth T., 3 A.D.3d 751, 753, 770 N.Y.S.2d 804 [2004] ).

Likewise, the father asserts that he was denied due process because his attorney failed to request an adjournment. The father was assigned counsel to represent him in the proceeding and received notice of the February 7, 2019 hearing at the January 24, 2019 conference. At approximately 8:35 a.m. on the morning of the hearing, the father called his attorney to advise her that he was having a grand mal seizure and, therefore, he would not be present in court. His attorney advised him that if he wished to seek an adjournment, he would have to contact Family Court. The father never contacted the court. However, it was alleged that approximately a half hour later, the father appeared at petitioner's office to drop off receipts, thus making his explanation for his absence suspect. In any event, in deciding to proceed with the hearing, Family Court stated that it would allow the father to move to vacate the resulting order and schedule a rehearing. The father did not avail himself of this remedy. As for the February 11, 2019 hearing, the father's attorney advised the court that she spoke to the father after the February 7, 2019 hearing to advise him of the next hearing date. The father did not seek an adjournment of this date through his attorney, nor did he contact Family Court. Instead, the father failed to appear. Despite the father's absence, his attorney cross-examined petitioner's witnesses, made timely and valid objections, and presented a zealous closing statement on his behalf. As with the mother, under these circumstances, when balancing the father's interests and the interests of the children, Family Court did not deprive the father of his due process rights to be present and to participate in the hearing (see id. ).

The father's contention that his due process rights were violated because his attorney did not present evidence regarding issues such as the location of and access to parenting sessions is meritless. These issues were briefly discussed at the January 24, 2019 conference, during which Family Court indicated that it would consider such change after hearing the father's testimony at the upcoming hearing. As the father was not present, and thus did not testify at the hearing, the location of the visitation went unchanged.

Turning to Family Court's substantive finding, "[a] finding of abandonment is warranted when it is established by clear and convincing evidence that the parent[s] failed to visit or communicate with the child[ren] 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 Colby II. [Sheba II.], 145 A.D.3d at 1272, 43 N.Y.S.3d 587 [internal quotation marks and citations omitted] ). "A parent's ability to visit and/or communicate with his or her child[ren] is presumed, and once a failure to do so is established, the burden is upon 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 Max HH. [Kara FF.], 170 A.D.3d 1456, 1459, 96 N.Y.S.3d 757 [2019] [internal quotation marks and citations omitted]; see Matter of Joshua M. [Brittany N.], 167 A.D.3d 1268, 1269, 89 N.Y.S.3d 777 [2018] ). "A trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify" ( Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ; see Matter of Samuel DD. [Margaret DD.], 81 A.D.3d 1120, 1124, 916 N.Y.S.2d 366 [2011] ).

Petitioner called three foster parents who each testified that the children remained in their care the entire six-month period. Their addresses and telephone numbers did not change throughout the six-month period, and the mother and the father did not contact them via telephone or text message, card, gift or any other means during this time. The foster parents further testified that they did not impede, discourage or dissuade the mother or the father from communicating with them.

A social worker testified that his role was to schedule parenting time, doctor's appointments and services for the children. The mother and the father were asked to confirm and arrive on time for each parenting session. During the six-month period, 26 sessions of parenting time were scheduled, but neither the mother nor the father attended any session. The social worker testified that he would call the mother and the father to cancel the parenting session if they did not confirm. He testified that there was one occasion when they confirmed their parenting time, but they arrived 16 minutes late and the session was canceled.³ The social worker testified that on...