Abandoned!!

MATTER OF ANNETTE B. , 4 N.Y.3d 509; 829 N.E.2d 661; 796 N.Y.S.2d 569

Decided May 3, 2005

 

            Annette B. was born in August 1991.  Her parents, Marissa R. and Joseph B., were not married.  Annette lived with her mother in Central Islip until 1996.  Joseph testified that during that time he visited Annette every weekend.  In 1996, Annette and Marissa moved from Central Islip and Joseph was arrested on a drug offense.  Joseph was in prison until the trial of this case in 2001.  During his years in prison, Joseph admitted to having no contact with Annette.

 

            Joseph testified that he did not know where Marissa had taken Annette in 1996 but had made three attempts to find her, all of which were unsuccessful.  However, Joseph’s testimony provided little detail about the attempts and was uncorroborated by any document or person.  There was therefore no evidence other than Joseph’s own testimony that Joseph had attempted to contact Annette from 1996 on.

 

            In 1998, Orange County Department of Social Services (DSS) removed Annette from her mother’s home as a result of child neglect.  In 2001, Marissa surrendered her parental rights to Annette.  New York State’s Family Court Act and Social Services Law require that both parents be notified of proceedings involving child neglect and parental surrender.  The record did not show that any notice was given to Joseph of either proceeding.

 

            Then in August 2001, DSS brought a proceeding to terminate Joseph’s parental rights to Annette based on abandonment.  This time, notice was given to Joseph at the prison where he was still incarcerated. Around this time, Joseph learned, through his mother, that Annette was in foster care.  Yet he made no attempt to contact Annette. 

 

 Under New York law, an order terminating parental rights may be granted where the parent abandoned the child for the period of six months prior to the filing of the petition.  Abandonment is classified as a failure to visit or communicate with the child although able to do so and not prevented or discouraged from doing so by the agency (in this case, DSS.)  Abandonment must be proved by clear and convincing evidence.

           

            At trial in Family Court, Joseph admitted that he did not communicate with Annette since 1996 but argued that he did not communicate with her because he did not know where she was.  Joseph also argued that he was “prevented or discouraged” from communicating with her by DSS’s failure to notify him of the 1998 and 2001 proceedings.

 

 In a unanimous opinion, the Court of Appeals agreed with the Family Court’s decision to terminate Joseph’s parental rights due to abandonment.   They found that while DSS’s failure to give required notices of the 1998 and 2001 proceedings was inexcusable, it was not the reason that Joseph failed to communicate with his daughter. In fact, the Court concluded, since the August 2001 proceeding, of which he was notified, did not prompt Joseph to contact Annette, neither of the previous two proceedings would have prompted him to contact her either.

 

            Clear and convincing evidence of Joseph’s abandonment was based primarily on the Court’s conclusion that even if the Family Court had believed Joseph’s general and uncorroborated testimony about his attempts to contact Annette after 1996, it would have concluded that such attempts were insufficient.  A parent in Joseph’s position who did not want to abandon his child would have more persistently tried to find Annette and communicate with her.

 

           

Learning Activities

 

 

Terms to Know

  • abandonment
  • clear and convincing evidence
  • parental rights
  • uncorroborated

 

 

Compare and Contrast

 

In the United States Supreme Court case Dred Scott v. Sanford (60 U.S. 393 (1857)), Scott was a slave who brought an action against his owner for assault.  The lower courts found that Scott’s owner was not liable to Scott because Scott was property of his owner, who could therefore treat his property as he saw fit. The United States Supreme Court reversed the lower court’s decision and dismissed the case for lack of jurisdiction.  The Court held that Scott was not a citizen, was not permitted to become a citizen, and no state had the authority to grant him citizenship.  As a non-person, Dred Scott could not bring a claim in court.

           

How are Matter of Annette B. and Dred Scott v. Sanford related?

             

 

 Critical Thinking

 

The Court of Appeals in Annette B. decided that it must not disturb the lower court’s ruling of clear and convincing evidence that Joseph abandoned his daughter.  In the final paragraph of the Court’s opinion, Justice R.S. Smith Jr. wrote:

 

We thus conclude that there is legally sufficient evidence to support…[the] conclusion that Joseph abandoned Annette….We do not reach this conclusion lightly.  Joseph had an important, constitutionally-protected right to a parental relationship with his daughter, and DSS gave his rights too little attention.  But Annette’s interests are important too.  At the time of the hearing below, she was nine years old and living in foster care; her mother had surrendered parental rights to her.  DSS is seeking to free Annette for adoption, opposed by a father Annette had never lived with and with him she had had no contact since she was four or five. 

 

Suppose that Annette was not in foster care, but was in a group home.  Or that Annette’s foster parents were not seeking to adopt her.  Do you think the result of this case would have been different?  Should the current situation of the child be considered when legal standard is clear and convincing evidence of abandonment by the natural parent?