In re Adoptive Child A.

Decision Date05 May 2022
Citation2022 NY Slip Op 51069 (U)
PartiesIn the Matter of the Adoption of Adoptive Child A.
CourtNew York Family Court

2022 NY Slip Op 51069(U)

In the Matter of the Adoption of Adoptive Child A.

Family Court, Rockland County

May 5, 2022


Unpublished Opinion

Rachel Tanguay, J.

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....

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