In the Matter of Lamar Ll. And Others

Decision Date07 July 2011
PartiesIn the Matter of LAMAR LL. and Others, Alleged to be Abandoned Children.Schenectady County Department of Social Services, Respondent;Loreal MM., Appellant.(And Another Related Proceeding.).
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Marcel J. Lajoy, Albany, for appellant.Lauren A. Selchick, Schenectady County Department of Social Services, Schenectady, for respondent.Karen R. Crandall, Schenectady, attorney for the children.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.PETERS, J.P.

Appeal from an order of the Family Court of Schenectady County (Assini, J.), entered November 4, 2010, which, among other things, granted petitioner's application, in two proceedings pursuant to Social Services Law § 384–b, to adjudicate respondent's children to be abandoned, and terminated respondent's parental rights.

Respondent is the mother of three children (born in 2004, 2005 and 2007), all of whom were removed from her care in the fall of 2007 and placed with relatives. Respondent consented to a finding of neglect in August 2008 and the children's placement was continued. In September 2009, petitioner commenced these proceedings seeking to terminate respondent's parental rights on the grounds of abandonment and permanent neglect. Following a fact-finding hearing, Family Court found that respondent had abandoned the children, terminated her parental rights and dismissed the permanent neglect petition as moot. Respondent appeals.1

The sole issue raised by respondent is that the proof was insufficient to establish abandonment. A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the petition ( see Social Services Law § 384–b[4][b]; [5][a]; Matter of Stephen UU. [Stephen VV.], 81 A.D.3d 1127, 1128, 916 N.Y.S.2d 673 [2011], lv. denied ––– N.Y.3d ––––, 2011 WL 2237365 [2011]; Matter of Gabriella I. [Jessica J.], 79 A.D.3d 1317, 1318, 912 N.Y.S.2d 763 [2010], lv. denied 16 N.Y.3d 704, 2011 WL 500591 [2011] ). “A parent's ability to visit and/or communicate with his or her child is presumed, and once a failure to do so is established, the burden is upon the parent to prove an inability to maintain contact or that he or she was prevented or discouraged [by petitioner] from doing so” ( Matter of Jackie B. [Dennis B.], 75 A.D.3d 692, 693, 903 N.Y.S.2d 612 [2010] [citations omitted]; see Matter of Jacob WW., 56 A.D.3d 995, 997, 868 N.Y.S.2d 348 [2008] ).

Testimony from petitioner's caseworker and the children's foster parents established that respondent's last contact with the children was in September 2008, and that she did not attempt to communicate or visit with them during the relevant period from March 17, 2009 to September 17, 2009. The caseworker testified further that respondent contacted her only twice during the relevant period, the first to request assistance in admission to a detoxification program and the second to schedule a meeting at the shelter where she was staying.2 Although respondent asked about the children during one of those conversations, she did not request to visit with them. Such sporadic and insubstantial communications were wholly insufficient to defeat petitioner's claim of abandonment ( see Matter of Gabriel D. [Andrea D.], 68 A.D.3d 1505, 1506–1507, 891 N.Y.S.2d 551 [2009], lv. denied 14 N.Y.3d 703, 2010 WL 547651 [2010]; Matter of Malikah MM., 40 A.D.3d 1173, 1174, 835 N.Y.S.2d 745 [2007] ).

Nor did respondent offer any evidence to show that she was unable to visit or communicate with the children during the statutory time period or that petitioner prevented or discouraged her from contacting them. Moreover, her failure to testify permitted Family Court to draw the strongest inference that the opposing evidence permits against her ( see Matter of Jacob WW., 56 A.D.3d at 997, 868 N.Y.S.2d 348). Although respondent claims that petitioner made an insufficient effort to involve her in...

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11 cases
  • Schenectady Cnty. Dep't of Soc. Servs. v. Michael L. (In re Derick L.)
    • United States
    • New York Supreme Court — Appellate Division
    • November 21, 2018
    ...appeal from the August 2016 order as an application for leave to appeal and grant such application (see Matter of Lamar LL. [Loreal MM.], 86 A.D.3d 680, 680 n. 1, 927 N.Y.S.2d 185 [2011], lv denied 17 N.Y.3d 712, 932 N.Y.S.2d 426, 956 N.E.2d 1271 [2011] ). That said, to the extent that the ......
  • Chemung Cnty. Dep't of Soc. Servs. v. Jose C. (In re Ronaldo D.)
    • United States
    • New York Supreme Court — Appellate Division
    • November 27, 2019
    ...L.] , 166 A.D.3d 1325, 1326, 89 N.Y.S.3d 354 [2018], lv denied 32 N.Y.3d 915, 2019 WL 690534 [2019] ; Matter of Lamar LL. [Loreal MM.] , 86 A.D.3d 680, 680 n. 1, 927 N.Y.S.2d 185 [2011], lv denied 17 N.Y.3d 712, 2011 WL 4835732 [2011] ; see also Family Ct Act § 1112[a]...
  • Schenectady Cnty. Dep't of Soc. Servs. v. Hakeem N. (In re Jamaica M.)
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    • New York Supreme Court — Appellate Division
    • December 1, 2011
    ...or the petitioning agency during the six-month period immediately prior to the filing of the petition” ( Matter of Lamar LL. [Loreal MM.], 86 A.D.3d 680, 680, 927 N.Y.S.2d 185 [2011], lv. denied 17 N.Y.3d 712, 2011 WL 4835732 [2011] [citations omitted]; see Social Services Law § 384–b[4][b]......
  • Schuyler Cnty. Dep't of Soc. Servs. v. Jeanie UU. (In re David UU.)
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    ...of those messages ( Matter of Damien D. [Ronald D.], 176 A.D.3d 1411, 1412, 111 N.Y.S.3d 442 [2019] ; see Matter of Lamar LL. [Loreal MM.], 86 A.D.3d 680, 681, 927 N.Y.S.2d 185 [2011], lv denied 17 N.Y.3d 712, 2011 WL 4835732 [2011] ; Matter of Jasper QQ., 64 A.D.3d 1017, 1020, 883 N.Y.S.2d......
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