IN RE: the Adoption of Adoptive Child A. (2022)

Petitioner (A.S.), an unrelated third-party to this child, filed a Petition for Adoption on June 22, 2021, alleging that the mother (M.S.) had abandoned the child by failing to have any contact with her for the six months immediately preceding the filing of the petition. In her petition, A.S. argues that M.S. does not need to consent to the adoption based upon her abandonment of the child, and as such asked the Court to schedule the adoption with the birth mother's consent, or even knowledge. However, the Court directed that Notice of the proposed adoption be served on M.S. to give her an opportunity to be heard. Over the course of the next several months, Petitioner attempted to effectuate service at different recovery programs that she believed M.S. was attending. Finally, on January 10, 2022, pursuant to an affidavit of service duly filed with this Court, M.S. was served with the Notice of Proposed Adoption.

Proceedings were held before this Court on January 24, 2022 and present were the Petitioner represented by Counsel, the Attorney for the Child (AFC), M.S. and the child's current legal guardian, her grandmother (D.C.). M.S. did not consent to the adoption, and counsel for Petitioner argued that her consent was not required in light of her abandonment of the child, a representation that M.S. vehemently denied. The Court assigned counsel to M.S. and adjourned the matter for an evidentiary hearing on whether M.S. abandoned the child within the meaning of S.S.L. § 384-b(4)(b)(5)(a). The Court convened this hearing on April 20 and 21, 2022. Both A.S. and M.S. were represented by counsel, as was the child. D.C., the child current legal guardianship, represented herself and consented to the adoption by Petitioner.

FINDINGS OF FACT

The Court took judicial notice of the prior finding of neglect it made against M.S. in connection with the subject child back in 2018, as well of a Permanency Hearing Order from June 5, 2020 which stated that at that time, M.S. was not having any contact with the child (who was 2 years old) and there was an active warrant issued by this Court which was ultimately vacated. The Court, most notably this undersigned Judge, has had cases involving M.S., D.C. and the child since 2018, including custody, neglect and guardianship dockets. M.S. has undoubtedly struggled for much of that time with significant substance use and mental health issues, and has had a frustrated relationship with D.C. as a result. It is uncontroverted that the last physical contact M.S. had with her child was in November or December of 2019, and that the last direct telephone conversation M.S. had with the child was in December 2019. It is also uncontroverted that M.S. had text message and social media message contact with D.C. about the child in September 2020, December 23 and 25, 2020, and December 2021. At issue in this hearing is whether, during the relevant 6-month time period of December 18, 2020 though June 18, 2021, days before the Petition for Adoption was filed, M.S. abandoned her child within the meaning of the law, thereby obviating the need for M.S. to consent to the adoption of the child by A.S.

D.C. was awarded Kinship Guardianship of the child on September 9, 2020, after the child had been placed with D.C. for more than two years pursuant to the underlying neglect finding. This order was entered upon a finding by the Court Attorney Referee that M.S. had abandoned the child by leaving the child and the home of D.C. on September 19, 2019, with her whereabouts having been unknown at the time of signing of the guardianship order. D.C. testified that several life events occurred following the signing of that order that caused her to reconsider her ability to care for her granddaughter full-time, including her husband, both parents and her step-mother all contracting cancer, with her parents and step-mother all passing away as a result. She indicated that A.S., a twenty-five-year-old woman who was a neighbor and a lifelong friend of the family, had stepped up to assist in caring for the child during these horrific events. Of important note, however, is that according to D.C.'s own testimony, these illnesses occurred in the earlier part of 2020, and that her husband was in the hospital battling cancer in August or September 2020, all prior to the signing of the final order of guardianship being awarded to her, with A.S. being a successor guardian upon the death of incapacitation of D.C. and her husband. D.C. felt that the child had developed a bond with A.S. in her periods of absence and that she would be better suited to care for the child and her host of special needs, and had started to permit the child to spent more and more time at the home of A.S.

D.C. further testified that from December 18, 2020 through June 18, 2021, her telephone numbers for the home phone and her cell phone remained unchanged, and that other than one voice mail she received from M.S. in April 2021 stating that M.S. was in a treatment program, she received no telephone communication. D.C. testified that she attempted to call M.S. back at the treatment program but was unable to speak with her. D.C. also conceded that on December 23 and 25, 2020, M.S. had sent several texts messages asking to speak to the child, asking for pictures of her, and informing her that she was speaking with a Department of Social Services caseworker about trying to get supervised visitation with the child. The text messages, placed into evidence at trial, demonstrate that M.S. pled with her mother to permit some level of contact with the child, even if it was a brief phone conversation for the Christmas holiday. D.C.'s only response to her daughter was to say that she would not talk with her by phone, but that she could text her anything she needed to say. D.C. did not give any substantive response to M.S.'s request for contact with the child. D.C. testified that after receiving these texts from her daughter on Christmas, M.S. did not speak with the child nor did she send gifts or cards to her, not even on her birthday.

D.C. stated that she and her husband moved from their home in Rockland County to West Harrison in Westchester County in July 2021, and that the child remained with A.S. She did not inform M.S. of her move or of any change of residence for the child. The child was enrolled in school in Rockland County and D.C. did not inform that school or the Department of Social Services that she had moved and that the child was primarily residing with A.S. The Department of Social Services reached out to D.C. to inquire why the monthly support checks relating to the Kingap were being returned, and it was only then that she informed them of her move and of the child's new living arrangement. According to D.C., aside from the last text on December 25, 2020 and the one voicemail left for her in April 2021, she did not hear again from M.S. until September 2021 when she called D.C. to tell her she had had another child.

Throughout her testimony, D.C. became understandably emotional in talking about her family's illnesses, but was rather stoic and detached in talking about her daughter. She testified in a very matter-of-fact manner when asked about M.S.'s attempts to contact her or the child, simply pointing out that she received the alarming text in evidence on December 25, 2020 and one voice mail from April 2021. She denied every receiving any letters from M.S. during the six-month period. It was clear to the Court that the relationship between D.C. and M.S. is significantly strained, and that D.C. is very much in favor of this child being adopted by A.S., who D.C. has almost seemed to almost take on a surrogate child of her own. This alignment gives the Court cause for concern about D.C.'s credibility, particularly on issues relating to M.S.'s contact with her. The evidence clearly demonstrates that she knew that M.S. wanted contact with her daughter, as set forth in the text of December 25, 2020 (within the six-month period), and D.C. did not respond to those demands. The child is now 5 years old and was 3 years old at that time, thus the only way for M.S. to have contact directly with the child either by phone or in person was through D.C., who simply remained silent in the face of such requests. Meanwhile, D.C. was making a long-term plan with A.S. to have that young woman become a permanent care-taking resource for the child, all without involving M.S. in that decision.

A.S. testified that the child currently lives with her, and could not recall how long that had been the case. The child had been staying with her a lot before D.C. moved to Westchester in July 2021, and presumably, once D.C. relocated, the child was residing full-time with A.S. M.S. and A.S. were contemporaries, having grown up two houses away from each other and having been childhood friends. Once M.S. gave birth to the child, there was even discussion of A.S. being the child's godmother. However, once M.S.'s drug use escalated and when she finally left D.C.'s home, A.S. said that she stepped up to fill the role that M.S. left behind. A.S. said that conversations between she and D.C. started in 2020 about A.S. taking a more active role in the child's life than just being a babysitting resource. Those discussions culminated in A.S. being designated as the successor guardian by D.C. in the September 2020 Guardianship order. However, according to A.S., as soon as one month after the ink was dry on the Kingap Guardianship order giving D.C. and her husband permanent guardianship of the child, it was decided between A.S. and D.C. that A.S. would be a more suitable permanent resource for the child. A.S. decided that pursuing adoption of the child would afford her more stability and would ensure that M.S. would not be able to re-appear and disrupt the child's life.

By October 2020, when those decisions were made, A.S. delighted in the 3 year-old child's request to begin calling her "Mommy". A.S. readily agreed to the child's request and has held herself out as the child's mother for the last one and a half years, all with the knowledge and blessing of D.C. Neither A.S. nor D.C. informed M.S. that the child was not only living with A.S. but was calling her "Mommy". Both A.S. and D.C. admitted that they had access to M.S. through social media accounts, but neither affirmatively reached out to her while all of these changes were unfolding and while M.S. was sending text messages in December 2020 begging for contact with the child. Both A.S. and D.C. maintain that for the relevant six-month period, it was M.S.'s obligation to contact them, to visit with the child, to send gifts and letters, and that she failed to do so.

The Court found A.S. to be a poised young woman, one who has taken on the responsibility of day-to-day care of this young child. However, the Court found her testimony at times to be evasive and self-serving, and as such, cannot afford it much weight. She formed a bond with a child who is not hers and made the unilateral decision to permit the child call her "Mommy" when M.S.'s parental rights were still fully intact, and where M.S. was contacting D.C. about the child, devoid of any knowledge that the child was no longer residing full-time with D.C.

M.S. testified that she resides in a residential treatment program called Odyssey House on Ward's Island in Manhattan. She conceded that she has not seen nor spoken with the child since the end of 2019. M.S. testified how she was struggling with her substance use and that she had been reaching out a lot for her mother, D.C., in 2020 about getting into a recovery program. On September 5, 2020, M.S. texted her mother to ask about the child, and said she would do whatever she needed to do to have the child back in her life. She begged her mother to "let [her] start somewhere" (brackets added) and begged her for advice and help in getting better and resuming a mothering role in the child's life. D.C. replied, "You don't need me to tell you what to do. . . ." (Ellipses added). M.S. pleaded again with D.C. that she was getting her life on track and holding a job, and that her daughter means more to her than anything. "Please mom .. (sic) give me advice. That's all I want right now." The advice was to get into a program and stay clean. On September 12, 2020, M.S. texted her mother, "I hope you haven't lost all hope in me. I can do this and I will. . . . You are pretty much the only person in the world I've wanted to talk to for months. . . . I've just been scared and ashamed. How is she doing? Can you please tell me something? Anything?" (Ellipses added). D.C.'s response was the child is "amazing. Beautiful, smart, clever and loving."On September 15 and 16, 2020, more text messages were exchanged between M.S. and D.C. wherein D.C. told her daughter not to contact her until she was clean. M.S. responded that she was trying to get into a program and was in the hospital, one where there was no detoxification program. However, D.C. clearly did not believe her daughter and said that if she had really wanted to be in treatment, the hospital would have put her into detox somewhere. M.S. testified that she spoke to D.C. "a lot" in October, November and December 2020 on the phone. Never at any time did D.C. tell her that the child was living primarily with A.S., that the child was calling A.S. "Mommy" and that A.S. and D.C. were engaged in discussions about A.S. becoming the child's adoptive mother. M.S. testified that she went into St. Charles Hospital in January 2021 to their detoxification program, and then to Eastern Long Island Hospital affiliated with Stony Brook University Hospital from April to May 2021. While in the hospital, M.S. said that she repeatedly called her mother from the hospital's phone and no one would answer the calls. She left her three voicemail messages in April 2021 to tell D.C. where she was and that she wanted to speak with her. M.S. testified that the nurse came to her to tell her she had had a long conversation with D.C., which M.S. believed because the nurse knew about the child, knew the child's name and other details that M.S. had not yet shared with the nurse, evidencing that the conversation had in fact occurred. The nurse told M.S. that D.C. refused to speak with M.S. on the phone, and would only be willing to communicate via letter.¹ M.S. testified to writing her first letter to D.C. four to five days after her admission to the hospital, and that in that letter, she had asked for a picture of the child and asked about the child's well-being. She recalled that the initial letter was eight handwritten pages with a separate letter included for the child. M.S. received no letters in response from either D.C. or the child. The hospital records in evidence contain an entry from May 2, 2021, wherein M.S. told the nurse that her mother, D.C., would be writing her a letter "as its (sic) easier for her to communicate," which supports M.S.'s testimony that she had written her mother a letter and was awaiting a letter in response.

M.S. testified that she contacted D.C. in September 2021 to tell her of the birth of her new daughter. In evidence are text messages between M.S. and D.C. from December 2021 wherein M.S. is asking about the subject child, asking to see pictures of her. D.C. did not respond to that request, but instead asked M.S. how she and the new baby were doing. As the messaging progressed, D.C. finally sent M.S. a photo of the child and said that they had to talk so long as it could be calmly, that it was too much to text. Presumably, D.C. was finally ready to have telephone communication with M.S. about the child, five-six months after the child had gone to live with A.S., who had already filed this petition for adoption several months earlier.

Throughout the years, during periods of active substance use M.S. as well as periods of short-term sobriety, this Court has had numerous interactions with M.S. At times she has been timid and soft-spoken, other times angry and belligerent; her presentations have wildly varied and she has been intensely unpredictable. This time, M.S. presented as mostly calm and directed. She was clear and detailed in her testimony. Her justified anger towards D.C. and A.S. was palpable throughout the proceedings in her answers to questions. M.S. still has some work to do with her recovery and mental health stability, as there were a few times she had to be admonished by this Court not to speak, but overall she has come a very long way. The level of detail she provided in her testimony about her efforts to reach out to D.C. to inquire of the child without response, supported by the text and social media messages in evidence, made her testimony credible.

CONCLUSIONS OF LAW

Where an individual is seeking to adopt a minor child, consent of the mother is required. D.R.L. § 111(1)(c). However, as argued by A.S., consent of M.S. is not required under the specific facts of this case, because she avers that M.S. has abandoned the child within the meaning of D.R.L. § 111(2)(a). That statute states the following, in pertinent part:

The consent shall not be required of a parent of any other person having custody of the child who evinces an intent to forgo his or her parental or custodial right and obligations as manifested by his or her failure for a period of six month to visit the child and communicate with the child or person having legal custody of the child, although able to do so . . . .

(Ellipses and emphasis added). Moreover,

(under Social Services Law § 384-b (5) (a),) abandonment simply requires proof that the parent failed to visit the child and to communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. This definition parallels the definition of abandonment in Domestic Relations Law § 111 (2) (a), which allows the court, in a private adoption, to dispense with the consent of a parent who has manifested an intent to forego parental rights and obligations by failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so.

Matter of C. Children, 4 Misc 3d 363, 367, 780 N.Y.S.2d 476, 480 (Fam. Ct. Kings Co. 2004)(some citations and internal quotation marks omitted)(parentheses and emphasis added). Thus, the Court looks to the plethora of cases examining the meaning of abandonment under S.S.L. § 384-b, particularly whether a parent has evinced an intent to forgo her parental rights and obligations, for further instruction and guidance on the instant set of facts.

Here, it is A.S.'s burden in this case to establish that M.S. failed to visit and communicate with the child (or D.C., the child's caretaker) for a period of six months and she must established that M.S. was able to do so, evincing an intent to forgo her parental rights and obligations. She must also demonstrate that M.S. was not prevented or discouraged from contact with the child. See In re Rose Marie M., 94 AD2d 734, 462 N.Y.S.2d 483 (2d Dept. 1983). "In order to prevail in a proceeding such as this, the petitioner must prove abandonment by clear and convincing evidence." In re Catholic Child Care Soc. of Diocese, 112 AD2d 1039, 1039, 492 N.Y.S.2d 831,833 (2d Dept. 1985)(other citations omitted)(emphasis added). "However, mere proof of such failure is insufficient to establish abandonment, as inquiry must also be made into whether or not there was good reason for the failure to visit or communicate." Id. See also In re L., 72 AD2d 137, 143, 423 N.Y.S.2d 482, 487 (1st Dept.1980)(holding "where the period of nonvisitation occurs in a context of otherwise uninterrupted contacts between the child and the natural parents and endeavors on the parents' part to obtain return of the child, which contacts and endeavors both precede and succeed the period of nonvisitation, a strong showing of active abandonment is required"); Angel Guardian Home v. Mendez, 60 AD2d 600, 400 N.Y.S.2d 124 (2d Dept. 1977). Once petitioner meets her burden, "it bec[omes] the natural mother's obligation to present evidence sufficient to establish that the absence of contact was a result of circumstances which made her unable to visit and communicate with the child . . . ." Id. at 1040 (ellipses and brackets added). See also In re St. Christopher-Ottilie, 171 AD2d 746, 747, 567 N.Y.S.2d 302, 303 (2d Dept. 1991)(stating that the incarcerated father's "failure to visit the children and to communicate with them was due to inability and his attempts to maintain contact with the child and children, both by writing to her directly and through his own mother, did not manifest an intent to forego his parental rights and obligations").

A.S. asserts that from December 18, 2020 though June 18, 2021, M.S. failed to have any direct contact with or visit the child, and accordingly has satisfied her burden. However, A.S. must demonstrate more than that. She must also demonstrate that M.S. did not have any contact with D.C. about the child during the relevant time period, and that her lack of communication with the child and/or D.C. was of her own volition in that she was "able to do so" but did not. The record here does not support such a finding. M.S. clearly was in touch with D.C. about the child on December 23 and 25, 2020, after A.S. asserts the six-month time period began. In fact, M.S. was begging D.C. to permit her contact with the child, who was 3 years old and thus not accessible directly without the assistance of D.C. M.S. had no choice by to go through the child's caretaker, D.C., to have any access to or information about the child, and the text messages reveal that M.S. tried. D.C., however, refused to engage with M.S., provided no information about the child and ignored pleas that M.S. made to speak with the child on Christmas Day. Further, M.S. credibly testified that in April and May 2021, in the middle of the six-month period at issue, she tried to call D.C. from the hospital recovery program to inquire about the child, but that her mother did not answer the calls. Cf. In re I.R., 153 AD2d 559 (2d Dept. 1989)(holding that a parent in the throws of active drug use, who claimed to be "debilitated" as a result, and who was residing at and confined to a drug rehabilitation program, failed to establish his inability to communicate with the child and the agency). Instead, the nurse spoke to D.C. and related to M.S. that D.C. would not speak with M.S. on the phone but that M.S. could write her letters, something that M.S. said she did several times. The hospital records support that M.S., in May 2021, spoke of expecting a responsive letter from her mother, supporting M.S.'s testimony that she initiated contact with D.C. by writing her a letter. Therefore, there were clear attempts made by M.S. on multiple occasions in the six-month time period to gain access to the child, or to receive information from D.C. about the child.

A.S. further avers that there was no barrier to M.S. coming to visit the child during that 6-month time frame, and that she failed to do so. Firstly, M.S. stated by text message in December 2020 that she wanted to see the child, and D.C. did not affirmatively respond or give permission. Accordingly, the Court finds it disingenuous for both A.S. and D.C. to say now that M.S. could have visited and did not. M.S.'s requests for access were met with silence, so this Court finds it reasonable that M.S. would choose under those circumstances not to ambush her mother and child and demand access. Secondly, M.S., who was pregnant with her second child and trying to gain control over her recovery, entered the hospital in April 2021, during the time period at issue. She was in-patient for two months and actively tried to speak with D.C. to reconnect with her child. D.C. told the nurses that she would entertain letter communication only. M.S. sent letters to D.C. and the child with no response from either. Subsequent to the six-month period, M.S. contacted her mother to tell her of her new daughter's birth, and thereafter engaged in ongoing communication with her to facilitate a connection with the subject child. However, D.C. not only failed to respond to her requests about the child, she actively withheld important and relevant information from M.S. about the child, in that the child had begun to reside with A.S., the child was referring to A.S. as "Mommy" and A.S. had filed an adoption petition with the Court claiming M.S. had abandoned the child. The Court was deeply unsettled by the testimony presented by A.S. and D.C., as one could surmise from their testimony that they colluded to bar any contact between M.S. and the child for an approximate six-month time period immediately prior to the filing of the instant adoption petition. One can only hope that this is not what actually happened, but such a conclusion can undoubtedly be inferred from the evidence in this record.

It is clear that even though D.C. came into Court in September 2020 to seek permanent guardianship of the child, she and A.S. were having active discussions around that time about A.S. assuming care for the child in lieu of D.C. Only one month after the guardianship order was signed did the child begin calling A.S. "Mommy", and did A.S. and D.C. agree that the child should begin to transition towards living with A.S. full-time. It is shameful on the part of both of these women that they appeared to formulate a permanent plan for this young child behind her own mother's back, one that would permanently excise M.S. from the child's life when M.S., albeit sporadically, but undeniably, was trying to maintain a connection to her own child. Even "a flicker of interest" on the part of a parent prohibits a court from "permanently extinguish[ing] the parental rights of the party who has demonstrated such an interest." Dickson v. Lascaris, 97 Misc 2d 610, 614, 411 N.Y.S.2d 995, 998 (Fam Ct. Onondaga Co. 1978)(brackets added).

M.S. still has work to do in her recovery, but she remains this child's mother. However, through the actions of A.S. and D.C., they have led this child to believe in a false reality, one where M.S. does not exist and A.S. is her mother. While the child is clearly bonded to A.S., and it may arguably be in the best interests of the child to remain with A.S. at this time, the Court questions the judgment of both A.S. and D.C. in their respective choices and actions regarding this child. The Court notes that D.C. is mired in fear that the child will be negatively affected by M.S.'s history of instability and relapse, and that this likely contributed to her actions. However, it was not her place or her right to make choices about whether M.S. is cut off from the child's life for now and forever more.

ORDERED that the petition for adoption is hereby denied.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dated: May 5, 2022

___________________________________

Hon. Rachel E. Tanguay

Family Court Judge

FOOTNOTES

1.   Attorneys for A.S. did not object to most testimony offered by M.S. as to her conversations with the hospital's nurse. Therefore, the Court is considering that testimony. When the attorneys finally made a hearsay objection, the Court sustained the objection and considered no further third-party statements from the nurse that M.S. tried to convey to the Court.

Rachel Tanguay, J.