        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

364
CAF 15-01702
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF MADELYNN T.
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ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,         MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

REBECCA M., RESPONDENT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

AMBER R. POULOS, BUFFALO, FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).


     Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered September 4, 2015 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things, adjudged
that respondent had abandoned the subject child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent mother appeals from an order that
terminated her parental rights with respect to her daughter on the
ground of abandonment. We affirm.

     Social Services Law § 384-b (5) (a) provides that “a child is
‘abandoned’ by his [or her] parent if such parent evinces an intent to
forego his or her parental rights and obligations as manifested by his
or her failure to visit the child and communicate with the child or
agency, although able to do so and not prevented or discouraged from
doing so by the agency.” A child is deemed abandoned when the parent
engages in such behavior “for the period of six months immediately
prior to the date on which the petition [for abandonment] is filed”
(§ 384-b [4] [b]). “In the absence of evidence to the contrary, such
ability to visit and communicate shall be presumed” (§ 384-b [5] [a]).
Here, the mother does not dispute that she failed to maintain contact
for the statutory period, but she contends that her period of
hospitalization and her repeated drug abuse constitute valid defenses
to the claim of abandonment. We reject that contention.

     “In the abandonment context, ‘[a] court shall not require a
showing of diligent efforts, if any, by an authorized agency to
encourage the parent to perform the acts specified in paragraph (a) of
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                                                         CAF 15-01702

this subdivision’ ” (Matter of Gabrielle HH., 1 NY3d 549, 550, quoting
Social Services Law § 384-b [5] [b]; see Matter of Lundyn S. [Al-Rahim
S.], 128 AD3d 1406, 1407; Matter of Angela N.S. [Joshua S.], 100 AD3d
1381, 1382). “Rather, it was [the mother’s] burden, which [she]
failed to meet, to show that there were circumstances rendering
contact with the child or agency infeasible, or that [she] was
discouraged from doing so by the agency” (Matter of Regina A., 43 AD3d
725, 725; see Matter of Miranda J. [Jeromy J.], 118 AD3d 1469, 1470).
“Hospitalization . . . does not automatically excuse a parent from
maintaining the contacts required under the Social Services Law”
(Matter of Crystal C., 219 AD2d 601, 602), and the mother failed to
submit any supporting documentary evidence to substantiate the length,
severity, or extent of her purported illness and hospitalization (see
Matter of Ruth R. [Diana P.], 115 AD3d 531, 531-532; see generally
Matter of I.R., 153 AD2d 559, 560). In our view, the mother “failed
to show that . . . her hospitalization . . . ‘so permeated [her] life
that contact was not feasible’ ” (Matter of Andre W., 298 AD2d 206,
206; see Matter of Christina S., 251 AD2d 982, 982-983).

     After the mother was released from her hospitalization, her only
attempt at establishing any contact with the child or petitioner was a
vague request for the child’s grandmother to obtain the relevant
contact information for her. Even assuming, arguendo, that the
grandmother obtained the relevant contact information from petitioner
on behalf of the mother, “we conclude that such ‘insubstantial contact
[was] insufficient to defeat the claim of abandonment’ ” (Lundyn S.,
128 AD3d at 1407; see Matter of Nadine Nicky McD. [Vernice H.], 138
AD3d 495, 495; Miranda J., 118 AD3d at 1470). The mother further
contends that she never followed up on that request because she was
“actively using” drugs, which had the effect of “disturb[ing her]
mind,” and that the intensity of her addiction demonstrates that her
drug use “permeate[d] her life.” We reject that contention and
conclude that the mother’s vague and conclusory testimony “failed to
establish that her alleged health problems and other hardships
‘permeated [her] life to such an extent that contact was not
feasible’ ” (Matter of Dahata R., 278 AD2d 894, 894; see Ruth R., 115
AD3d at 531-532).

     Finally, the mother’s period of incarceration does not excuse her
failure to contact the child or petitioner (see Matter of Lindsey B.,
16 AD3d 1078, 1078; Matter of Ashton, 254 AD2d 773, 773, lv denied 92
NY2d 817) and, insofar as there appears to have been a week prior to
the filing of the petition when the mother was not incarcerated, there
is no evidence in the record of any attempt by the mother to contact
or communicate with petitioner, the child, or the child’s foster
parents during that time (see generally Matter of Stephen UU. [Stephen
VV.], 81 AD3d 1127, 1129, lv denied 17 NY3d 702).




Entered: March 31, 2017                         Frances E. Cafarell
                                                Clerk of the Court
