IN THE MATTER OF MADELYNN T. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; and REBECCA M., RESPONDENT-APPELLANT.
J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
R. POULOS, BUFFALO, FOR PETITIONER-RESPONDENT.
C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND
from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered September 4, 2015 in a proceeding
pursuant to Social Services Law § 384-b. The order,
among other things, adjudged that respondent had abandoned
the subject child.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Respondent mother appeals from an order that terminated her
parental rights with respect to her daughter on the ground of
abandonment. We affirm.
Services Law § 384-b (5) (a) provides that "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." A child is deemed abandoned when the parent
engages in such behavior "for the period of six months
immediately prior to the date on which the petition [for
abandonment] is filed" (§ 384-b  [b]). "In
the absence of evidence to the contrary, such ability to
visit and communicate shall be presumed" (§ 384-b
 [a]). Here, the mother does not dispute that she failed
to maintain contact for the statutory period, but she
contends that her period of hospitalization and her repeated
drug abuse constitute valid defenses to the claim of
abandonment. We reject that contention.
the abandonment context, [a] court shall not require a
showing of diligent efforts, if any, by an authorized agency
to encourage the parent to perform the acts specified in
paragraph (a) of this subdivision' " (Matter of
Gabrielle HH., 1 N.Y.3d 549, 550, quoting Social
Services Law § 384-b  [b]; see Matter of Lundyn
S. [Al-Rahim S.], 128 A.D.3d 1406, 1407; Matter of
Angela N.S. [Joshua S.], 100 A.D.3d 1381, 1382).
"Rather, it was [the mother's] burden, which [she]
failed to meet, to show that there were circumstances
rendering contact with the child or agency infeasible, or
that [she] was discouraged from doing so by the agency"
(Matter of Regina A., 43 A.D.3d 725, 725; see
Matter of Miranda J. [Jeromy J.], 118 A.D.3d 1469,
1470). "Hospitalization... does not automatically excuse
a parent from maintaining the contacts required under the
Social Services Law" (Matter of Crystal C., 219
A.D.2d 601, 602), and the mother failed to submit any
supporting documentary evidence to substantiate the length,
severity, or extent of her purported illness and
hospitalization (see Matter of Ruth R. [Diana P.],
115 A.D.3d 531, 531-532; see generally Matter of
I.R., 153 A.D.2d 559, 560). In our view, the mother
"failed to show that... her hospitalization... so
permeated [her] life that contact was not feasible'
" (Matter of Andre W., 298 A.D.2d 206, 206;
see Matter of Christina S., 251 A.D.2d 982,
the mother was released from her hospitalization, her only
attempt at establishing any contact with the child or
petitioner was a vague request for the child's
grandmother to obtain the relevant contact information for
her. Even assuming, arguendo, that the grandmother obtained
the relevant contact information from petitioner on behalf of
the mother, "we conclude that such insubstantial contact
[was] insufficient to defeat the claim of abandonment'
" (Lundyn S., 128 A.D.3d at 1407; see
Matter of Nadine Nicky McD. [Vernice H.], 138 A.D.3d
495, 495; Miranda J., 118 A.D.3d at 1470). The
mother further contends that she never followed up on that
request because she was "actively using" drugs,
which had the effect of "disturb[ing her] mind, "
and that the intensity of her addiction demonstrates that her
drug use "permeate[d] her life." We reject that
contention and conclude that the mother's vague and
conclusory testimony "failed to establish that her
alleged health problems and other hardships permeated [her]
life to such an extent that contact was not feasible'
" (Matter of Dahata R., 278 A.D.2d 894, 894;
see Ruth R., 115 A.D.3d at 531-532).
the mother's period of incarceration does not excuse her
failure to contact the child or petitioner (see Matter of
Lindsey B., 16 A.D.3d 1078, 1078; Matter of
Ashton, 254 A.D.2d 773, 773, lv denied 92
N.Y.2d 817) and, insofar as there appears to have been a week
prior to the filing of the petition when the mother was not
incarcerated, there is no evidence in the record of any
attempt by the mother to contact or communicate with
petitioner, the child, or the child's ...