A child under the Age of Eighteen Years v. Wright (In re Commitment of Guardianship & Custody Pursuant to § 384–B of Soc. Servs. Law K.C.)

• Citation: 2012 N.Y. Slip Op. 51213,954 N.Y.S.2d 759,36 Misc.3d 1206
• Decision Date: 15 June 2012
• Docket Number: No. 9531.,9531.
• Parties: In the Matter of the COMMITMENT OF GUARDIANSHIP AND CUSTODY PURSUANT TO § 384–B OF THE SOCIAL SERVICES LAW K.C. A child under the Age of Eighteen Years, Alleged to be an Abandoned Child v. Crystal Wright, Respondent.
• Court: New York Family Court

36 Misc.3d 1206

954 N.Y.S.2d 759

2012 N.Y. Slip Op. 51213

In the Matter of the COMMITMENT OF GUARDIANSHIP AND CUSTODY PURSUANT TO § 384–B OF THE SOCIAL SERVICES LAW K.C. A child under the Age of Eighteen Years, Alleged to be an Abandoned Child

v.Crystal Wright, Respondent.

No. 9531.

Family Court, Washington County, New York.

June 15, 2012.

Daniel S. Martindale, Esq., Washington County Deputy County Attorney, Fort Edward, New York, for Petitioner.

Ronald L. Daigle, Jr., Esq., Granville, New York, for Allen Cox, Respondent.

John K. Oswald, Esq., Greenwich, New York, for Crystal Wright, Respondent.

Edwin M. Adeson, Esq., Glens Falls, New York, attorney for the child.

Karen Judd, Esq., Queensbury, New York, attorney for Jeffrey McMorris and James Lawless, foster parents.

Garfield P. Raymond, Esq., Glens Falls, New York, attorney for Roberta Dunklee and Scott Dunklee, interested parties.

RICHARD B. MEYER, J.

Motions for summary judgment to terminate the parental rights of both respondents to their one and one-half year old daughter on the grounds of abandonment.

A.

These special proceedings were commenced by the Washington County Department of Social Services (DSS) against the respondents Crystal Wright (Wright) and Allen Cox (Cox) by the filing of separate verified petitions on December 16, 2011. According to the affidavits of the DSS caseworker submitted on the motions, containing more than 200 separately numbered allegations of fact, the child was initially placed in DSS custody two days after birth by an ex parte order dated December 23, 2010. Following a hearing pursuant to FCA § 1027 commenced on December 27, 2010 and continued on January 5, 2011, the child was returned to Wright's custody and Cox was allowed DSS-supervised visitation with the child, all subject to certain conditions which included directives that both of them refrain from using alcohol and illegal drugs, submit to random drug screens, and submit to substance abuse and psychological evaluations plus follow any recommendations.

On January 16, 2011, an unannounced visit by DSS was made to Cox's home. Cox's mother and Wright, who had the child with her, both denied that Cox was home. Cox was found hiding in a closet, placing both Wright and Cox in violation of the order requiring DSS-supervised visitation by Cox with the child. A second unsupervised visitation between Cox and the child occurred on January 18, 2011 when Wright brought the child there to see the paternal grandmother. That same day, it was reported that Wright's drug screen on January 10, 2011 tested positive for cocaine. Wright then failed to appear for Family Treatment Court on January 19, 2011, and as a result the child was immediately removed and placed in DSS custody. The child was then placed in foster care where she has remained to date.

Over the course of the next few months and continuing into July 2011, both Wright and Cox did not comply with recommended substance abuse treatment, including numerous positive drug screens, failing to enter inpatient treatment, and failing to attend outpatient treatment sessions. Because of Wright's violations, a hearing was held on February 3, 2011, which resulted in an order of protection prohibiting Wright from having contact with the child (and one other child). Moreover, after a supervised visit with the child on February 11, 2011, Cox cancelled or failed to arrange or appear for child visits on at least eight dates in February and March ¹. DSS suspended his supervised visits until Cox met with a DSS caseworker. At an April 14, 2011 Family Court appearance, Wright consented to a finding of neglect without an admission ( FCA § 1051 ). Based upon a finding that the respondent's continued substance abuse posed a danger to the child, the order of protection prohibiting Wright from having contact with the child was continued, and a separate order against Cox was issued prohibiting him from having contact as well. These orders of protection remained in effect until August 1, 2011, at which time the orders were modified to allow DSS-supervised visitation. An order of disposition in Wright's neglect case was entered on June 1, 2011, placing the child in the custody of the DSS Commissioner. Cox consented to a finding of neglect without an admission on June 30, 2011 and an order of disposition was entered that date placing the child with the Commissioner.

Throughout this same period of time, February through July 2011, the respondents also failed on a number of occasions not only to comply with their court-ordered substance abuse treatment but also to meet with and/or maintain contact with DSS caseworkers. Only on two occasions—April 19 and June 6, 2011—did the respondents meet with DSS for a scheduled meeting concerning the child despite at least nine ² such meetings having been scheduled on notice to them. Wright and Cox did make one additional unscheduled appearance at the DSS offices on July 6, 2011. However, Cox refused to converse with the DSS caseworker and Wright only discussed her living arrangements with Cox, an upcoming home visit by DSS, an intake appointment Cox would be having with a substance abuse treatment provider, and her own substance abuse treatment appointment.

Following the August 1, 2011 permanency hearing at which supervised visits with the child were authorized to begin anew, Cox and Wright engaged in supervised visits with the child on four occasions, August 9, 12, 16, and 19, 2011. But they failed to comply with their substance abuse treatment, missing or failing to attend scheduled treatment sessions and evaluations, and they were not home for a scheduled home visit by DSS on August 24, 2011. Two days later, on August 26, 2011, and again on August 30, 2011, Wright and Cox failed to attend a scheduled supervised visitation with the child.

On August 31, 2011, Wright and Cox both failed to attend Family Court in a custody proceeding then pending regarding the child. Orders of protection were issued prohibiting the respondents from having contact with the child pending a hearing. That same day, Cox was unsuccessfully discharged from substance abuse treatment. Wright was similarly discharged on September 8, 2011.

Wright and Cox appeared in Family Court on September 14, 2011. The court continued the orders of protection prohibiting both of them from having further contact with the child. From that date on, Wright and Cox failed to attend all twelve planning meetings scheduled by DSS in the months of September, October, November and December ³. They also failed to appear for a family court hearing on November 22, 2011. According to the affidavit of one foster parent submitted in support of the motion, Wright appeared at his office on two occasions, leaving “articles of clothing, formula, toys and stuffed animals for” the child, and failed to meet with him for meetings at his office scheduled “via Facebook” on October 18 and November 2, 2011. These proceedings ensued.

DSS now seeks summary judgment on the respective petitions ⁴. The respondents oppose such relief. The court has considered the following papers: notices of motion dated December 28, 2011 supported by affirmations of Daniel S. Martindale, Esq., dated December 19, 2011, affidavits of Erin Etu, DSS caseworker, sworn to December 16, 2011, affidavits of Jeffrey McMorris, foster parent, sworn to December 19, 2011, and copies of the verified petitions; affirmation of John K. Oswald, Esq., attorney for Crystal Wright, dated March 26, 2012; supplemental affidavit of Crystal Wright dated May 21, 2012; and affirmation of Ronald L. Daigle, Esq., attorney for Allen Cox, dated May 11, 2012.

B.

It is well-settled that summary judgment “is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341)” (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133, 320 N.E.2d 853, 854). In order for a party to be entitled to summary judgment, “it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392). “[I]ssue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Abad, 271 AppDiv 725, 727, 68 N.Y.S.2d 322, 324)” ( id.;see also, Benizzi v. Bank of Hudson, 50 A.D.3d 1372, 1373, 855 N.Y.S.2d 764, 765;Gadani v. Dormitory Auth. of State of NY, 43 A.D.3d 1218, 1219, 841 N.Y.S.2d 709), and summary judgment “should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable'. (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 N.E. 275)” (Glick & Dolleck, Inc. v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 94, 239 N.E.2d 725, 726).

“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. (b) ), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc. 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 791–792, 390 N.E.2d 298, 299). “Accordingly, if the movant does not submit sufficient evidence on a particular issue or cause of action to justify judgment as a matter of law, the burden never shifts to the adversary to submit evidence sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Even where there is no opposition to a motion for summary judgment, the court is not relieved of its obligation to ensure that the movant has demonstrated his or her entitlement to the relief requested.” (Zecca v. Riccardelli, 293 A.D.2d 31, 34, 742 N.Y.S.2d 76, 78). Thus, “if, on the record before...