| Matter of Colby II. (Sheba II.) |
| 2016 NY Slip Op 08402 [145 AD3d 1271] |
| December 15, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Colby II., a Child Alleged to beAbandoned. Albany County Department for Children, Youth and Families, Respondent;Sheba II., Appellant. |
Jo M. Katz, Troy, for appellant.
Daniel C. Lynch, County Attorney, Albany (Jeffrey G. Kennedy of counsel), forrespondent.
Jeffrey S. Berkun, Albany, attorney for the child.
Mulvey, J. Appeal from an order of the Family Court of Albany County (Maney, J.),entered January 9, 2015, which granted petitioner's application, in a proceeding pursuantto Social Services Law § 384-b, to adjudicate the subject child to beabandoned, and terminated respondent's parental rights.
Respondent is the mother of a son (born in 2002). In August 2013, pursuant toFamily Ct Act § 1024, the child was removed from respondent's care.Following fact-finding hearings, Family Court adjudicated the child to be neglected and,in April 2014, placed him in the custody of petitioner. In August 2014, petitionercommenced this proceeding to terminate respondent's parental rights on the ground ofabandonment. Following a fact-finding hearing, the court determined that respondent hadabandoned the child and terminated her parental rights. Respondent now appeals.
"A finding of abandonment is warranted when it is established by clear andconvincing evidence that the parent failed to visit or communicate with the child or thepetitioning agency [*2]during the six-month periodimmediately prior to the filing of the abandonment petition, although able to do so andnot prevented or discouraged from doing so by petitioner" (Matter of Dimitris J. [Sarah J.],141 AD3d 768, 769 [2016] [internal quotation marks, brackets and citationsomitted]; see Social Services Law § 384-b [5] [a]). Once petitionerestablishes that a parent failed to maintain sufficient contact with a child for the statutoryperiod of six months, the burden shifts to the parent to establish that he or she"maintained sufficient contact, was unable to do so, or was discouraged or preventedfrom doing so by petitioner" (Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d 695, 696[2010]; see Matter of Dior H.[Rondu H.], 77 AD3d 1066, 1067 [2010]).
We find that petitioner met its burden of demonstrating that respondent failed tomaintain sufficient contact with the child for the relevant period through the testimony ofboth the caseworker and the clinical case manager. Their testimony was sufficient to shiftthe burden to respondent to establish that she maintained sufficient contact with the childduring the statutory period. Respondent attempted to prove that she had contacted thechild through her proffered testimony and documentary proof regarding Facebookmessages between her and the child during the relevant period. Respondent's principalcontention on appeal is that Family Court erred in its rulings that no proper foundationhad been established for the admission of proof that she had communicated with thesubject child by Facebook messenger[FN*] using her adult son's account. Theparties stipulated that the child did have contact with respondent through Facebook, and,specifically, that the child was the sender of Facebook messages transmitted under hisname. Although the parties so stipulated, Family Court erred in finding that respondentfailed to establish a foundation for the proffered document through her testimony and inprecluding her testimony regarding the frequency of her communications with the childvia Facebook.
A recorded conversation—such as a printed copy of the content of a set of cellphone instant messages—may be authenticated through, among other methods, the"testimony of a participant in the conversation that it is a complete and accuratereproduction of the conversation and has not been altered" (People v Agudelo, 96 AD3d611, 611 [2012] [internal quotation marks, brackets and citation omitted], lvdenied 20 NY3d 1095 [2013]). Notably, "[t]he credibility of the authenticatingwitness and any motive she [or he] may have had to alter the evidence go to the weight tobe accorded this evidence, rather than its admissibility" (id.). Respondent testifiedthat she was present when her counsel printed the Facebook messages at his office, andthat she reviewed the entire document to ensure that it was a full and complete copy. Theaforementioned stipulation and respondent's testimony, when combined with her adultson's testimony confirming that he had provided respondent with his accountinformation, password and permission to use the account for communication with thechild, constituted a sufficient foundation for the admission into [*3]evidence of the printed messages and her related testimony(see People v Ely, 68 NY2d 520, 527-528 [1986]; People v Green, 107 AD3d915, 916-917 [2013], lv denied 22 NY3d 1088 [2014]; People vAgudelo, 96 AD3d at 611).
By erroneously precluding this proffered evidence, Family Court deprivedrespondent of her due process right to a full and fair opportunity to be heard. In aproceeding to terminate parental rights "the court is obliged to ensure that the proceedingis fair and that due process is afforded to an individual whose parental rights may beterminated" (Matter of Eileen R.[Carmine S.], 79 AD3d 1482, 1483 [2010]). The frequency and content of theseFacebook communications are relevant in determining whether respondent initiated ormaintained substantial contact with the child during the statutory period (see Matterof Dior H. [Rondu H.], 77 AD3d at 1068; Matter of Kaitlyn E. [Lyndsay E.],75 AD3d at 696). Accordingly, we reverse the order and remit the matter for a furtherfact-finding hearing at which the printed Facebook messages are to be admitted intoevidence and respondent permitted to testify as to, and be cross-examined on, the natureand extent of her Facebook communications with the child and any other issues relatedthereto.
In light of our determination, respondent's remaining contentions are academic.
Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Albany County forfurther proceedings not inconsistent with this Court's decision.
Footnote *:"Facebook. . . has a private messaging service that works much like an email account,or text function on a smart phone" (Matter of 381 Search Warrants Directed to Facebook, Inc. [NewYork County Dist. Attorney's Off.], 132 AD3d 11, 13 [2015], lv granted26 NY3d 914 [2015]).