N.W. v. Ground (In re B.W.)

• Docket Number: 17444,Dkt. No. B3285/21,Case No. 2022–02538
• Decision Date: 02 March 2023
• Citation: 184 N.Y.S.3d 342
• Parties: In the MATTER OF B.W., and Another, Children Under Eighteen Years of Age, etc., N.W., Respondent–Appellant, v. Rising Ground, Petitioner–Respondent.
• Court: New York Supreme Court — Appellate Division

184 N.Y.S.3d 342

In the MATTER OF B.W., and Another, Children Under Eighteen Years of Age, etc.,

N.W., Respondent–Appellant,
v.
Rising Ground, Petitioner–Respondent.

17444
Dkt. No. B3285/21
Case No. 2022–02538

Supreme Court, Appellate Division, First Department, New York.

Entered March 2, 2023

184 N.Y.S.3d 343

Carol L. Kahn, New York, for appellant.

Rosin Steinhagen Mendel PLLC, New York (Douglas H. Reiniger of counsel), for respondent.

Steven P. Forbes, Huntington, attorney for the children.

Moulton, J.P., Gonza´lez, Scarpulla, Shulman, JJ.

Order, Family Court, Bronx County (Cynthia Lopez, J.), entered on or about March 3, 2022, which, to the extent appealable and as limited by the briefs, brings up for review a fact-finding order, same court (Michael R. Milsap, J.), entered on or about December 22, 2021, which found, after a hearing, that respondent mother permanently neglected and abandoned the subject children, unanimously affirmed, without costs.

Clear and convincing evidence supported the determination that the mother had abandoned the children by failing to visit or communicate with the children or the agency for the six months immediately prior to the filing of the petition, although she was able to do so and not prevented or discouraged from doing so by the agency (see Social Services Law § 384–b [3][g][i] ; [4][b]; [5][a]). The mother's limited contacts with the children during the relevant period were too sporadic and insubstantial to defeat the finding of abandonment (see Matter of Messiah C.T. [Eusebio C.T.], 180 A.D.3d 544, 116 N.Y.S.3d 278 [1st Dept. 2020] ). The credible evidence belied the mother's contentions that the foster mother told her that there was an order of protection prohibiting her from contact with the children and that she did not maintain contact with the agency because there was no case planner assigned to her case (see Matter of Irene O., 38 N.Y.2d 776, 381 N.Y.S.2d 865, 345 N.E.2d 337 [1975] ; Matter of Salma M., 294 A.D.2d 198, 744 N.Y.S.2d 3 [1st Dept. 2002] ). In any event, at all relevant times, the mother was aware that the...