Westchester Cnty. Dep't of Soc. Servs. v. Estilia R. (In re Abel J.R.)

220 A.D.3d 785

197 N.Y.S.3d 579

In the MATTER OF ABEL J.R. (Anonymous).

Westchester County Department of Social Services, respondent;

v.Estilia R. (Anonymous), appellant.

2021-04568

Docket No. B-1230-20

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

Submitted—May 2, 2023

October 11, 2023

Irene J. Goldsmith, White Plains, NY, for appellant.

John M. Nonna, County Attorney, White Plains, NY (Jason S. Whitehead of counsel), for respondent.

Steven Ranellone, White Plains, NY, attorney for the child.

FRANCESCA E. CONNOLLY, J.P., VALERIE BRATHWAITE NELSON, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Social Services Law § 384–b, the mother appeals from an order of fact-finding and disposition of the Family Court, Westchester County (Michelle I. Schauer, J.), dated October 15, 2021. The order of fact-finding and disposition, insofar as appealed from, upon an amended order of the same court dated July 2, 2021, made after a fact-finding hearing, determined that the mother abandoned the subject child, terminated her parental rights, and transferred custody and guardianship of the child to the petitioner for the purpose of adoption. The appeal from the order of fact-finding and disposition brings up for review the amended order dated July 2, 2021.

ORDERED that on the Court's own motion, the notice of appeal from the amended order dated July 2, 2021, is deemed to be a premature notice of appeal from the order of fact-finding and disposition dated October 15, 2021 (see CPLR 5520[c] ); and it is further,

ORDERED that the order of fact-finding and disposition dated October 15, 2021, is affirmed insofar as appealed from, without costs or disbursements.

The subject child, Abel J. R., was born in January 2018. Eight days after his birth, the child was removed from the care of the respondent, Estilia R. (hereinafter the mother), and placed in a foster home with one of his siblings who is not a subject of this proceeding. In a May 2018 order, the Family Court determined that the mother had neglected the child and, among other things, directed the mother to cooperate with supervision by the petitioner, the Westchester County Department of Social Services, cooperate with anger management and domestic violence counseling, complete a parenting program, and submit to random toxicologies. In January 2019, the court suspended the mother's parental access with the child.

On February 4, 2020, the petitioner commenced this proceeding pursuant to Social Services Law § 384–b, inter alia, to terminate the mother's parental rights on the ground of abandonment, alleging, among other things, that the mother evinced her intention to forego her parental rights and obligations for the period of six months immediately prior to the commencement of the proceeding, which was from approximately August 2019 through February 2020 (hereinafter the statutory abandonment period). At the fact-finding hearing, the mother sought to present evidence through cross-examination of the petitioner's witnesses and through her own testimony that the petitioner had prevented and discouraged her from visiting and communicating with the child and from communicating with the petitioner from September 2016, the time her older children who were not subjects of this proceeding were first removed from her custody, or at least from January 2018, when the subject child was removed from her care. The Family Court ruled that the mother's attorney should "pretty much" limit his questions to the statutory abandonment period.

Following the fact-finding hearing, the Family Court determined that the mother had abandoned the child. The court, among other things, terminated the mother's parental rights and transferred custody and guardianship of the child to the petitioner for the purpose of adoption. The mother appeals.

Termination of parental rights is authorized by Social Services Law § 384–b(4)(b) when a parent abandons a child for a period of six months immediately prior to the date of the filing of the petition. Pursuant to Social Services Law § 384–b(5)(a), "a child is ‘abandoned’ by his [or her] 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 or agency, although able to do so and not prevented or discouraged from doing so by the agency." Abandonment must be proven by clear and convincing evidence (see Matter of Annette B., 4 N.Y.3d 509, 514, 796 N.Y.S.2d 569, 829 N.E.2d 661 ). "Once 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 ... agency" ( Matter of Kylee I.C. [Thomas C.], 213 A.D.3d 659, 660, 182 N.Y.S.3d 280 [internal quotation marks omitted]).

Here, the Family Court properly determined that the petitioner established, by clear and convincing evidence, that the mother abandoned the child during the six-month period immediately preceding the filing of the petition (see Matter of Ishmael J.L.T.M. [Terry K.], 194 A.D.3d 1060, 144 N.Y.S.3d 606 ; Matter of Darrell H. [Darrell D.H.], 189 A.D.3d 1235, 134 N.Y.S.3d 241 ; Matter of Nyshawn R.V.S. [Erica M.V.], 145 A.D.3d 902, 43 N.Y.S.3d 497 ; Matter of Tinisha J. [William J.], 135 A.D.3d 760, 23 N.Y.S.3d 313 ). Both Jane Okereke, a supervisor of case work with the petitioner, and Maria Gongora, a caseworker with the petitioner who was assigned to this case beginning in October 2019, testified that the mother was angry with the petitioner and that she was not willing to work with them. Okereke and Gongora further testified that the mother's calls and visits to the petitioner's office were primarily limited to requesting MetroCards, ostensibly for the purpose of attending court-ordered anger management classes (see Matter of Joshua M. [Brittany N.], 167 A.D.3d 1268, 1271, 89 N.Y.S.3d 777 ). However, Gongora testified that the mother should have completed the anger management classes in a few months and that it took the mother two years to complete them. Contrary to the contention of our dissenting colleague, the testimony regarding the length of time that the mother took to complete anger management classes was relevant to the court's determination not to credit the mother's testimony regarding the frequency and nature of her contacts with the petitioner, including her alleged reason for requesting the MetroCards.

Significantly, both Gongora and Okereke testified that during the mother's calls and visits to the petitioner's office, she never asked about the child (see Matter of Anton T.H. [Troy A.H.], 212 A.D.3d 618, 619, 181 N.Y.S.3d 320 ; Matter of Myla–Ray L. [Ryan L.], 195 A.D.3d 1024, 1024, 146 N.Y.S.3d 823 ; Matter of Micah L. [Rachel L.], 192 A.D.3d 1344, 1345, 143 N.Y.S.3d 747 ; Matter of Maricel J.S. [Alex S.], 181 A.D.3d 804, 805, 118 N.Y.S.3d 420 ). In addition, the mother did not provide letters, gifts, or cards for the child during the statutory abandonment period (see Matter of Anton T.H. [Troy A.H.], 212 A.D.3d at 619, 181 N.Y.S.3d 320 ; Matter of Myla–Ray L. [Ryan L.], 195 A.D.3d at 1024, 146 N.Y.S.3d 823 ; Matter of Micah L. [Rachel L.], 192 A.D.3d at 1345, 143 N.Y.S.3d 747 ).

Although the mother did attend a service plan review meeting for the child in January 2020, the meeting had to be adjourned because the mother became aggressive (see Matter of Bradyen ZZ. [Robert A.], 216 A.D.3d 1229, 188 N.Y.S.3d 239 ). Okereke testified that the mother called her names, including "liar" and "bitch," and was disruptive. Okereke further testified that during the service plan meeting, the mother complained about the foster parents and "blamed everybody," but the mother did not ask how the child was doing (see Matter of Myla–Ray L. [Ryan L.], 195 A.D.3d at 1024, 146 N.Y.S.3d 823 ; Matter of Micah L. [Rachel L.], 192 A.D.3d at 1345, 143 N.Y.S.3d 747 ; Matter of Maricel J.S. [Alex S.], 181 A.D.3d at 805, 118 N.Y.S.3d 420 ).

In all, the evidence adduced at the hearing established that the mother's contact with the petitioner was too minimal, sporadic, and insubstantial to overcome a finding of abandonment (see Matter of Kylee I.C. [Thomas C.], 213 A.D.3d at 660, 182 N.Y.S.3d 280 ; Matter of Anton T.H. [Troy A.H.], 212 A.D.3d at 620, 181 N.Y.S.3d 320 ; Matter of Myla–Ray L. [Ryan L.], 195 A.D.3d at 1024, 146 N.Y.S.3d 823 ; Matter of Morgan A.H. [Ta–Mirra J.H.], 172 A.D.3d 861, 862, 98 N.Y.S.3d 447 ; Matter of "Baby Boy" N. [Albert N.], 163 A.D.3d 570, 572, 81 N.Y.S.3d 91 ).

Moreover, the mother failed to demonstrate that the petitioner prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so (see Matter of Kylee I.C. [Thomas C. ], 213 AD3d at 661, 182 N.Y.S.3d 280 ). The mother's contention that the petitioner prevented her from communicating with the child by suspending her parental access is without merit, as it was the Family Court that suspended the mother's parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access (see Matter of "Baby Boy" N. [Albert N.], 163 A.D.3d 570, 572, 81 N.Y.S.3d 91 ; Matter of Alexandryia M.M.B. [Heather C.], 132 A.D.3d 664, 664, 17 N.Y.S.3d 321 ).

As to the mother's contention that the petitioner discouraged her from communicating with it, the mother acknowledged during her testimony that she did not call anyone at the petitioner's office to ask about the child during the statutory abandonment period. Although the mother testified that she did not ask about the child because she "knew" that the petitioner would not provide any information about him and would give her "the cold shoulder," the Family Court was...