| Matter of Alexa L. (Nilza L.) |
| 2010 NY Slip Op 09032 [79 AD3d 1290] |
| December 9, 2010 |
| Appellate Division, Third Department |
| In the Matter of Alexa L., a Child Alleged to be Abandoned. ColumbiaCounty Department of Social Services, Respondent; Nilza L., Appellant. (Proceeding No. 1.) In theMatter of Asia L., a Child Alleged to be Permanently Neglected. Columbia County Department ofSocial Services, Respondent; Nilza L., Appellant. (Proceeding No. 2.) In the Matter of Asia L., aChild Alleged to be Abandoned. Columbia County Department of Social Services, Respondent; NilzaL., Appellant. (Proceeding No. 3.) (And Another Related Proceeding.) |
—[*1] Megan Mercy, Columbia County Department of Social Services, Hudson (James A. Carlucci ofcounsel), for respondent. Douglas E. Coleman, Hudson, attorney for the child. Alexander W. Bloomstein, Hillsdale, attorney for the child.
Kavanagh, J. Appeals (1) from an order of the Family Court of Columbia County (Czajka, J.),entered October 8, 2009, which, among other things, granted petitioner's application, in proceedingNo. 1 pursuant to Social Services Law § 384-b, to adjudicate Alexa L. to be an abandonedchild, and terminated respondent's parental rights, and (2) from two orders of said court, enteredOctober 7, 2009, which granted petitioner's applications, in proceeding Nos. 2 and 3 pursuant toSocial Services Law § 384-b, to adjudicate Asia L. to be a permanently neglected andabandoned child, and terminated respondent's parental rights.
Respondent has twin daughters, Alexa L. and Asia L. (born in 1994) who, at an early age, wereplaced with their maternal aunt and remained in her custody until 2006, when the aunt voluntarilysurrendered custody of Alexa to petitioner.[FN1]One year later, petitioner filed the first of multiple petitions against respondent, alleging that she hadabandoned Alexa. At the first hearing on that petition, the aunt indicated that she could no longer carefor Asia, and informed the court that Asia had recently begun living with respondent. When petitionerraised questions as to respondent's fitness to care for Asia due to her prior incarcerations and ongoingdifficulties with substance abuse, Family Court directed that respondent submit to a urine screen, whichtested positive for cocaine. Asia was immediately removed from respondent's care and placed withpetitioner, and a petition was filed charging respondent with neglect of Asia and Alexa.[FN2]Respondent failed to appear at the fact-finding hearing, and Family Court found that she had neglectedboth children and, in addition, had abandoned Alexa. A dispositional hearing was subsequently heldand, in an order that was not entered until October 2009, Family Court determined that Alexa wouldbe freed for adoption.[FN3]Meanwhile, Asia remained in petitioner's [*2]care, and the courtordered that respondent would not be allowed to visit her while these proceedings were pending.
In February 2009, additional petitions were filed alleging that respondent had permanentlyneglected Asia and had abandoned her. After fact-finding and dispositional hearings were held, FamilyCourt sustained the allegations contained in the petitions and terminated respondent's parental rights toAsia. Later, in October 2009, the court issued two additional orders, which declared that respondenthad permanently neglected and abandoned Asia, and terminated her parental rights. Respondent nowappeals from the three orders.
Initially, we address respondent's claim that Family Court erred in finding that she abandoned bothchildren. A child will be considered abandoned when the parent, for the six-month period immediatelyproceeding the filing of the abandonment petition (see Social Services Law § 384-b [4][b]), fails "to visit the child and communicate with the child or agency, although able to do so and notprevented or discouraged from doing so by the agency" (Social Services Law § 384-b [5] [a]).Unless evidence is presented establishing that the parent was unable to have contact with the childduring this period, the ability to visit and communicate with the child will be presumed (seeSocial Services Law § 384-b [5] [a]).
Here, it is undisputed that respondent had no contact with either Alexa or Asia for the six-monthperiod prior to the abandonment petitions being filed. Thus, it was respondent's burden to establish that,during this period, she was unable to maintain contact with her child or, if able, was discouraged orprevented from doing so (see Social Services Law § 384-b [5] [a]; Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d695, 696 [2010]; Matter of Jackie B.[Dennis B.], 75 AD3d 692, 693 [2010]). Moreover, even where the parent cannot, throughno fault of his or her own, have contact with the child, he or she continues "to have an obligation tomaintain contact with the person having legal custody of the child [and f]ailure to do so is a clearmanifestation of an intent to forego parental obligations to the child" (Matter of Gabrielle HH.,306 AD2d 571, 573 [2003], affd 1 NY3d 549 [2003] [citation omitted]; see Matter of Tiffany RR., 44 AD3d1126, 1128 [2007], lv denied 9 NY3d 819 [2008]).
As for Alexa, respondent acknowledges being aware that the child had been placed with petitioner,yet she had limited contact with the child's caseworker during the relevant period. In fact, thecaseworker documented her repeated efforts to contact respondent by mail regarding Alexa'splacement in foster care, yet all but one of these certified letters sent to respondent were returnedunclaimed. It is noteworthy that, during this period, respondent did not contact the caseworker eventhough she was well aware of the child's serious medical problems and that the child was scheduled toundergo at least one major medical procedure during this time. Moreover, respondent made no effortto communicate with any of the medical professionals who were treating Alexa. Based on thisevidence—which is essentially uncontroverted—petitioner established by clear andconvincing evidence that respondent had abandoned Alexa (see Matter of Kaitlyn E. [LyndsayE.], 75 AD3d at 696-697; Matter ofGabriel D. [Andrea D.], 68 AD3d 1505, 1506 [2009], lv denied 14 NY3d 703[2010]; Matter of Jacob WW., 56AD3d 995, 997-998 [2008]; Matter of Tiffany RR., 44 AD3d at 1127-1128).
As for Asia, respondent argues that petitioner prevented her from contacting the child because itrequired that she first meet with the child's therapists, submit to drug and alcohol evaluations, as well asmental health assessments, and participate in recommended programming. Respondent claims that shewas willing but unable to participate in these programs because she was involved in an abusiverelationship that made it impossible for her to attend. While this explanation may account for some ofthe problems respondent encountered during this period, it [*3]does notexplain why she repeatedly failed to attend scheduled court appearances that involved Asia.
Moreover, with respect to the permanent neglect petition, petitioner established that, during thisperiod, it made diligent efforts to assist, encourage and strengthen respondent's relationship with Asia(see Social Services Law § 384-b [7] [a], [f]; Matter of Ronnie P. [Danielle Q.], 77 AD3d 1094, 1095 [2010]; Matter of Sierra C. [Deborah D.], 74 AD3d1445, 1446-1447 [2010]), but these efforts were largely unsuccessful due to respondent's failureto cooperate. In that regard, petitioner's caseworker testified that respondent was made aware ofmultiple programs—such as parenting and anger management classes—that she needed totake before she could establish a relationship with Asia. She was provided with contact information,and arrangements were made for her to enroll in these programs, but, as Family Court found,respondent did not make an earnest attempt to participate in any of them. As a result, the record isreplete with evidence that respondent, despite petitioner's efforts, did not participate in planning forAsia's future during the year that she had been placed with petitioner prior to the filing of the permanentneglect petition (see Social Services Law § 384-b [7] [a], [c]; Matter of Keegan JJ. [Amanda JJ.], 72AD3d 1159, 1160-1161 [2010]; Matterof James X., 37 AD3d 1003, 1005-1006 [2007]). For these reasons, Family Court'sdetermination that respondent permanently neglected and abandoned Asia has ample support in therecord and must be affirmed.
Respondent also argues that Family Court erred by terminating her parental rights as to Asia, asopposed to simply issuing a suspended judgment. A therapist treating Asia testified that the child hadbeen having difficulty adjusting to her foster home environment, in part because of the unsettled natureof her relationship with respondent. The therapist, noting that the child had reactive attachment disorderthat made her particularly vulnerable to disappointments stemming from her relationship withrespondent, found that it was difficult for the child to adjust to placement while, at the same time,harboring hopes of a reunion with respondent. The therapist also found that Asia had begun to adjust tofoster care and expressed an interest in being adopted because of her concerns about whetherrespondent would be able to properly provide for her if she were returned to respondent's care. Basedupon our review of the record, we find no reason to disturb Family Court's determination that it was inAsia's best interests to terminate respondent's parental rights, as opposed to granting a suspendedjudgment (see Matter of Keegan JJ. [Amanda JJ.], 72 AD3d at 1161-1162; Matter of Nevaeh SS. [Valerie L.], 68AD3d 1188, 1189-1190 [2009]; Matterof Raine QQ., 51 AD3d 1106, 1106-1107 [2008], lv denied 10 NY3d 717 [2008]).
Finally, while the attorney for Asia argues that Family Court should have allowed postterminationvisitation between her and respondent, there is no statutory authorization for allowing those visits oncerespondent's parental rights were terminated (see Matter of Raine QQ., 51 AD3d at 1107; Matter of Melissa DD., 45 AD3d1219, 1221-1222 [2007], lv denied 10 NY3d 701 [2008]; Matter of James X.,37 AD3d at 1007). Respondent's remaining contentions have been reviewed and found to be lacking inmerit.
Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: Alexa suffers from a myriad ofsignificant medical and developmental maladies, which made it impossible for the aunt to care for herand remain gainfully employed.
Footnote 2: The children's biological father wasalso named in the neglect petition, but he subsequently surrendered his parental rights to both children.
Footnote 3: Because of the determination thatrespondent had abandoned Alexa, the neglect petition as it related to Alexa was dismissed as moot.