In the Matter of Ruben J. D. (Anonymous). Dutchess County Department of Community and Family Services, respondent; Shante M. (Anonymous), appellant.
M. Enderley, Poughkeepsie, NY, for appellant.
M. Fedorchak, County Attorney, Poughkeepsie, NY (Maureen J.
Brierton of counsel), for respondent.
S. Chu, Fishkill, NY, attorney for the child.
C. DILLON, J.P. SHERI S. ROMAN HECTOR D. LASALLE PAUL WOOTEN,
DECISION & ORDER
proceeding pursuant to Social Services Law § 384-b, the
mother appeals from an order of fact-finding and disposition
of the Family Court, Dutchess County (Joan S. Posner, J.),
dated December 21, 2018. The order, after fact-finding and
dispositional hearings, found that the mother permanently
neglected and abandoned the subject child, terminated her
parental rights, and transferred custody and guardianship of
the child to the Dutchess County Department of Community and
Family Services for the purpose of adoption.
that the order of fact-finding and disposition is affirmed,
without costs or disbursements.
subject child was born in August 2016 and placed in foster
care several days after his birth due to a pending neglect
petition against the mother, which resulted in a finding of
neglect. In January 2018, the petitioner, Dutchess County
Department of Community and Family Services (hereinafter
DCFS), commenced this proceeding to terminate the
mother's parental rights on the ground of permanent
neglect. During the fact-finding hearing, DCFS moved for
leave to amend the petition to add a cause of action for
abandonment, which the Family Court granted. After the
fact-finding and dispositional hearings, the court found that
the mother permanently neglected and abandoned the child,
terminated her parental rights, and transferred guardianship
and custody of the child to DCFS for the purpose of adoption.
The mother appeals.
decision to allow a party to amend a pleading is a
discretionary matter for the trial court (see Krichmar v
Krichmar, 42 N.Y.2d 858, 860). "Leave to amend a
pleading should be freely given (see CPLR 3025[b]),
provided the amendment is not palpably insufficient, does not
prejudice or surprise the opposing party, and is not patently
devoid of merit" (Ortega v Bisogno &
Meyerson, 2 A.D.3d 607, 609).
the Family Court providently exercised its discretion in
granting DCFS's motion for leave to amend the petition to
add a cause of action for abandonment. The original petition
alleged that for approximately six months prior to the filing
of the petition, the mother failed to visit with the child,
failed to maintain contact with DCFS, and had not reached out
to the caseworker for updates. While initially used to
support a cause of action for permanent neglect, these
factual allegations also sufficiently allege a cause of
action for abandonment. Also, the mother was not prejudiced
by the amendment (see Social Services Law §
384-b[b]; [a]; Matter of Cano v Bussey, 170
A.D.3d 1001; Matter of Cameron K. [Samuel M.], 104
A.D.3d 688, 688-689).
agree with the Family Court's finding that the mother
permanently neglected the child. DCFS established by clear
and convincing evidence that it made diligent efforts, which
were specifically tailored to the mother's individual
situation, to encourage and strengthen her relationship with
the child (see Matter of Hailey ZZ. [Ricky ZZ.], 19
N.Y.3d 422, 430; Matter of Christopher S. [Elizabeth
S.], 155 A.D.3d 630, 632). Despite these efforts, the
mother failed to plan for the child's future by, inter
alia, failing to attend scheduled visits and failing to
maintain contact with DCFS (see Matter of Stefano E.W.
[Stephan J.W.], 172 A.D.3d 882, 883; Matter of
Christopher S. [Elizabeth S.], 155 A.D.3d at 632;
Matter of Ke'von K.C. [Lisette M.C.], 154 A.D.3d
847; Matter of Darryl A.H. [Olga Z.], 109 A.D.3d
824). Moreover, the court's finding of abandonment was
supported by clear and convincing evidence (see
Social Services Law § 384-b[a]; Matter of Julius
P., 63 N.Y.2d 477, 481; Matter of Jeremiah Kwimea
T., 10 A.D.3d 691).
mother's remaining contentions are without merit.
DILLON, J.P., ROMAN, LASALLE and ...