Opinion
No. 9531.
2012-06-15
In the Matter of the COMMITMENT OF GUARDIANSHIP AND CUSTODY PURSUANT TO § 384–B OF THE SOCIAL SERVICES LAW K.C. A child under the Age of Eighteen Years, Alleged to be an Abandoned Child v. Crystal Wright, Respondent.
Daniel S. Martindale, Esq., Washington County Deputy County Attorney, Fort Edward, New York, for Petitioner. Ronald L. Daigle, Jr., Esq., Granville, New York, for Allen Cox, Respondent.
Daniel S. Martindale, Esq., Washington County Deputy County Attorney, Fort Edward, New York, for Petitioner. Ronald L. Daigle, Jr., Esq., Granville, New York, for Allen Cox, Respondent.
John K. Oswald, Esq., Greenwich, New York, for Crystal Wright, Respondent.
Edwin M. Adeson, Esq., Glens Falls, New York, attorney for the child.
Karen Judd, Esq., Queensbury, New York, attorney for Jeffrey McMorris and James Lawless, foster parents.
Garfield P. Raymond, Esq., Glens Falls, New York, attorney for Roberta Dunklee and Scott Dunklee, interested parties.
RICHARD B. MEYER, J.
Motions for summary judgment to terminate the parental rights of both respondents to their one and one-half year old daughter on the grounds of abandonment.
A.
These special proceedings were commenced by the Washington County Department of Social Services (DSS) against the respondents Crystal Wright (Wright) and Allen Cox (Cox) by the filing of separate verified petitions on December 16, 2011. According to the affidavits of the DSS caseworker submitted on the motions, containing more than 200 separately numbered allegations of fact, the child was initially placed in DSS custody two days after birth by an ex parte order dated December 23, 2010. Following a hearing pursuant to FCA § 1027 commenced on December 27, 2010 and continued on January 5, 2011, the child was returned to Wright's custody and Cox was allowed DSS-supervised visitation with the child, all subject to certain conditions which included directives that both of them refrain from using alcohol and illegal drugs, submit to random drug screens, and submit to substance abuse and psychological evaluations plus follow any recommendations.
On January 16, 2011, an unannounced visit by DSS was made to Cox's home. Cox's mother and Wright, who had the child with her, both denied that Cox was home. Cox was found hiding in a closet, placing both Wright and Cox in violation of the order requiring DSS-supervised visitation by Cox with the child. A second unsupervised visitation between Cox and the child occurred on January 18, 2011 when Wright brought the child there to see the paternal grandmother. That same day, it was reported that Wright's drug screen on January 10, 2011 tested positive for cocaine. Wright then failed to appear for Family Treatment Court on January 19, 2011, and as a result the child was immediately removed and placed in DSS custody. The child was then placed in foster care where she has remained to date.
Over the course of the next few months and continuing into July 2011, both Wright and Cox did not comply with recommended substance abuse treatment, including numerous positive drug screens, failing to enter inpatient treatment, and failing to attend outpatient treatment sessions. Because of Wright's violations, a hearing was held on February 3, 2011, which resulted in an order of protection prohibiting Wright from having contact with the child (and one other child). Moreover, after a supervised visit with the child on February 11, 2011, Cox cancelled or failed to arrange or appear for child visits on at least eight dates in February and March
. DSS suspended his supervised visits until Cox met with a DSS caseworker. At an April 14, 2011 Family Court appearance, Wright consented to a finding of neglect without an admission ( FCA § 1051 ). Based upon a finding that the respondent's continued substance abuse posed a danger to the child, the order of protection prohibiting Wright from having contact with the child was continued, and a separate order against Cox was issued prohibiting him from having contact as well. These orders of protection remained in effect until August 1, 2011, at which time the orders were modified to allow DSS-supervised visitation. An order of disposition in Wright's neglect case was entered on June 1, 2011, placing the child in the custody of the DSS Commissioner. Cox consented to a finding of neglect without an admission on June 30, 2011 and an order of disposition was entered that date placing the child with the Commissioner.
February 16 and 22; March 2, 4, 7, 14, 17 and 23.
Throughout this same period of time, February through July 2011, the respondents also failed on a number of occasions not only to comply with their court-ordered substance abuse treatment but also to meet with and/or maintain contact with DSS caseworkers. Only on two occasions—April 19 and June 6, 2011—did the respondents meet with DSS for a scheduled meeting concerning the child despite at least nine
such meetings having been scheduled on notice to them. Wright and Cox did make one additional unscheduled appearance at the DSS offices on July 6, 2011. However, Cox refused to converse with the DSS caseworker and Wright only discussed her living arrangements with Cox, an upcoming home visit by DSS, an intake appointment Cox would be having with a substance abuse treatment provider, and her own substance abuse treatment appointment.
March 28; April 4, 8, 19; May 12, 25; June 3, 6, 23.
Following the August 1, 2011 permanency hearing at which supervised visits with the child were authorized to begin anew, Cox and Wright engaged in supervised visits with the child on four occasions, August 9, 12, 16, and 19, 2011. But they failed to comply with their substance abuse treatment, missing or failing to attend scheduled treatment sessions and evaluations, and they were not home for a scheduled home visit by DSS on August 24, 2011. Two days later, on August 26, 2011, and again on August 30, 2011, Wright and Cox failed to attend a scheduled supervised visitation with the child.
On August 31, 2011, Wright and Cox both failed to attend Family Court in a custody proceeding then pending regarding the child. Orders of protection were issued prohibiting the respondents from having contact with the child pending a hearing. That same day, Cox was unsuccessfully discharged from substance abuse treatment. Wright was similarly discharged on September 8, 2011.
Wright and Cox appeared in Family Court on September 14, 2011. The court continued the orders of protection prohibiting both of them from having further contact with the child. From that date on, Wright and Cox failed to attend all twelve planning meetings scheduled by DSS in the months of September, October, November and December
. They also failed to appear for a family court hearing on November 22, 2011. According to the affidavit of one foster parent submitted in support of the motion, Wright appeared at his office on two occasions, leaving “articles of clothing, formula, toys and stuffed animals for” the child, and failed to meet with him for meetings at his office scheduled “via Facebook” on October 18 and November 2, 2011. These proceedings ensued.
September 14 (after court), 28; October 12, 19, 26; November 2, 9, 16, 23, 30; December 7, 14.
DSS now seeks summary judgment on the respective petitions
. The respondents oppose such relief. The court has considered the following papers: notices of motion dated December 28, 2011 supported by affirmations of Daniel S. Martindale, Esq., dated December 19, 2011, affidavits of Erin Etu, DSS caseworker, sworn to December 16, 2011, affidavits of Jeffrey McMorris, foster parent, sworn to December 19, 2011, and copies of the verified petitions; affirmation of John K. Oswald, Esq., attorney for Crystal Wright, dated March 26, 2012; supplemental affidavit of Crystal Wright dated May 21, 2012; and affirmation of Ronald L. Daigle, Esq., attorney for Allen Cox, dated May 11, 2012.
The procedural posture of this case is unusual. On December 28, 2011, twelve days after the petitions were filed and prior to any initial appearance on the petitions, DSS filed a motion for summary judgment. The initial appearance on the petitions did not occur until February 27, 2012. The court ( Pritzker, J.) granted the respondents thirty days within which to reply to the motions. Counsel for the child advised that he would not be opposing the motions. The cases were adjourned to March 28, 2012. Thereafter, in May 2012, this court was assigned due to recusal. No objections have been raised as to the foregoing procedure.
B.
It is well-settled that summary judgment “is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341)” (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133, 320 N.E.2d 853, 854). In order for a party to be entitled to summary judgment, “it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392). “[I]ssue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Abad, 271 AppDiv 725, 727, 68 N.Y.S.2d 322, 324)” ( id.; see also, Benizzi v. Bank of Hudson, 50 A.D.3d 1372, 1373, 855 N.Y.S.2d 764, 765;Gadani v. Dormitory Auth. of State of NY, 43 A.D.3d 1218, 1219, 841 N.Y.S.2d 709), and summary judgment “should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable'. (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 N.E. 275)” (Glick & Dolleck, Inc. v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 94, 239 N.E.2d 725, 726).
“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. (b) ), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc. 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 791–792, 390 N.E.2d 298, 299). “Accordingly, if the movant does not submit sufficient evidence on a particular issue or cause of action to justify judgment as a matter of law, the burden never shifts to the adversary to submit evidence sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Even where there is no opposition to a motion for summary judgment, the court is not relieved of its obligation to ensure that the movant has demonstrated his or her entitlement to the relief requested.” (Zecca v. Riccardelli, 293 A.D.2d 31, 34, 742 N.Y.S.2d 76, 78). Thus, “if, on the record before the court, it cannot be determined that there are no issues of material fact, the motion must be denied ( see, Udoff v. Zipf, 44 N.Y.2d 117, 122, 404 N.Y.S.2d 332, 375 N.E.2d 392)” (Long Island College Hosp. v. Axelrod, 118 A.D.2d 177, 182, 504 N.Y.S.2d 275, 277 [1986] ).
An order terminating parental rights “shall be granted ... [where] the parent or parents ... abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court” ( Social Services Law § 384–b [4][b] ). Here, the six month period runs from June 15, 2011 to December 15, 2011, the date before the petitions were filed ( see General Construction Law § 30 ). “Whether the period of time in question be measured by days, weeks, months or years, the day from which the reckoning is made must be excluded. Tismer v. New York Edison Co., 228 N.Y. 156, at 164, 126 N.E. 729;Goon v. Fu Manchu's Restaurant, Inc., 253 AppDiv 531, at 535, 2 N.Y.S.2d 879;Prokop v. Bedford Waist & Dress Co., Inc., 187 AppDiv 662, 176 N.Y.S. 376;Hudspith v. Pierce–Arrow Motor Car Co., 180 AppDiv 147, at 148, 167 N.Y.S. 418” (Biloz v. Tioga County Patrons' Fire Relief Ass'n, 21 N.Y.S.2d 643, affirmed 260 A.D. 976, 23 N.Y.S.2d 460 [1940] ). During that interval, and with the exception of the month of August 2011, the respondents were prohibited from having contact with the child by orders of protection issued by family court in the pending neglect proceedings. These orders of protection were issued as a result of the inability and/or failure of Wright and Cox to comply with their court-ordered substance abuse treatment regimens to such a degree that family court determined that they thereby posed a danger to the child. When permitted to have contact in August 2011, the uncontested allegations of the petition establish that Wright and Cox participated in only four of six scheduled supervised visits with the child, all occurring within an eleven day span from August 9 to 19, 2011, and they inexcusably failed to attend visits on August 26 and 30, 2011. Throughout the six month period, DSS scheduled at least fifteen separate meetings to plan for the child. Wright attended only two of the meetings, on July 31, 2011 and August 18, 2011, while Cox attended none. The only other contact between the respondents and DSS occurred at court appearances, and on July 6, 2011 when the respondents made an unscheduled visit to the DSS offices. At that visit, Cox refused to speak with DSS staff. Wright signed releases allowing DSS to obtain her substance abuse treatment records, advised of her living situation with Cox and their substance abuse treatment appointments, and obtained information on transportation to treatment sessions.
Moreover, “[w]hile a parent's conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent ( see Matter of Annette B., 4 N.Y.3d 509, 514–515, 796 N.Y.S.2d 569, 829 N.E.2d 661 [2005] )” (In re Aniya P., 67 A.D.3d 434, 435, 889 N.Y.S.2d 138, 140 [2009] ). Here, the respondents' conduct from February 3, 2011 until June 15, 2011 is telling. The respondents failed on more than ten occasions to meet with and/or maintain contact with DSS caseworkers, making only one such meeting on June 6, 2011. Because of an order of protection issued on February 3, 2011 and continued after Wright consented to a finding of neglect without an admission on April 14, 2011, Wright was prohibited from having contact with the child until August. In that same period of time, Cox visited the child only once, on February 11, 2011, and cancelled or failed to show up for child visits on at least seven different dates in February and March. This resulted in the suspension of his supervised visits by DSS, and on April 14, 2011 Family Court issued an order of protection against Cox prohibiting him from having contact with the child.
DSS has met its burden of establishing a prima facie case of abandonment by clear and convincing evidence. “[A] child is abandoned' by his 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” ( Social Services Law § 384–b [5][a] ) during “the period of six months immediately prior to the date on which the petition is filed in the court” ( Social Services Law § 384–b [4][b]; see Matter of Richard X. [Marion X.], 226 A.D.2d 762, 764–765, 640 N.Y.S.2d 628,lv. denied88 N.Y.2d 808, 647 N.Y.S.2d 165, 670 N.E.2d 449). “In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed” ( Social Services Law § 384–b[5][a] ). “Notably, an abandonment petition is not defeated by a showing of sporadic and insubstantial contacts where clear and convincing evidence otherwise supports granting the petition ( see, Matter of Christopher MM. [Jack MM.], supra; Matter of Alexander V. [Alexander W.], 179 A.D.2d 913, 914, 578 N.Y.S.2d 708;Matter of Leabert V. [Hedley V.], 174 A.D.2d 883, 884, 571 N.Y.S.2d 166)” (Matter of Candice K., 245 A.D.2d 821, 821–822, 666 N.Y.S.2d 791, 792 [1997] ), nor by “[t]he subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent” ( Social Services Law § 384–b[5][b] ). Finally, “a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform” his or her parental obligations of visiting the child and communicating with the child or agency is not required ( id.).
Significantly, neither Wright nor Cox made any affirmative efforts to visit the child or communicate with the child or with DSS ( see, Matter of Braidyn NN., 88 A.D.3d 1218, 931 N.Y.S.2d 757 [2011] ). Parents have an independent and affirmative obligation to do so: “[t]he statute makes clear that the burden rests on the parent to maintain contact' (Matter of Julius P., 63 N.Y.2d at 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003)” (In re Gabrielle HH., 1 N.Y.3d 549, 550, 772 N.Y.S.2d 643, 644, 804 N.E.2d 964, 965[2003] ). They “never contacted petitioner in an effort to request visitation or to inquire about [their] child” (In re Baby Girl GG, 260 A.D.2d 956, 958, 690 N.Y.S.2d 752, 754 [1999] ). Rather, they relied upon DSS. The minimal contact between the respondents and the child, made necessary by their own failures and inabilities to comply with court-ordered substance abuse treatment (among other things), was initiated solely by DSS rather than in response to any solicitations on the part of the respondents. Having been granted the opportunity to participate in supervised visits with the child in August 2011, after being precluded from having any contact for almost all of the prior three months, both Wright and Cox missed two out of six scheduled sessions. Cox and Wright did not attend the twelve meetings set up by DSS to plan for the child. Taken together, this is the type of “sporadic or insubstantial contact [which] is insufficient to defeat a finding of abandonment ( see, id., at 667, 690 N.Y.S.2d 752, 279 A.D.2d 666, 717 N.Y.S.2d 807; Matter of Omar RR. [Felicia SS.], 270 A.D.2d 588, 590, 703 N.Y.S.2d 604)” (In re Chantelle TT., 281 A.D.2d 660, 661, 721 N.Y.S.2d 417, 419 [2001];see also, In re Peter F., 281 A.D.2d 821, 823, 721 N.Y.S.2d 879, 881 [2001] [“Minimal, sporadic and unsubstantial contacts with the child do not defeat petitioner's claim of abandonment”] ). The respondents' conduct is not reflective of a genuine intent to reunite the family unit and provide a safe and healthy home environment for the child.
C.
Once the moving party establishes a right to summary judgment, “[t]he law is well settled that a party, in opposition to a motion for summary judgment, must assemble and lay bare affirmative proof to demonstrate that the matters alleged are real and capable of being established upon a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718)” (Couch v. Schmidt, 204 A.D.2d 951, 952, 612 N.Y.S.2d 511, 512 [1994] ). In the context of a claim of parental abandonment, “[a] parent's ability to visit and/or communicate with his or her child is presumed ( see Social Services Law § 384–b [5][a]; Matter of Leala T., 55 A.D.3d 1007, 1008, 871 N.Y.S.2d 731 [2008] ), 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 from doing so by the petitioning agency ( see Matter of Kerrianne AA., 1 A.D.3d 835, 836, 767 N.Y.S.2d 308 [2003],lv. denied1 N.Y.3d 507, 776 N.Y.S.2d 222, 808 N.E.2d 358 [2004];Matter of Peter F., 281 A.D.2d at 823, 721 N.Y.S.2d 879)” (In re Jackie B., 75 A.D.3d 692, 693, 903 N.Y.S.2d 612, 613–614 [2010] ).
“[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281–282, 413 N.Y.S.2d 309, 385 N.E.2d 1238;Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258;Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876;Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96)” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 598, 404 N.E.2d 718, 720 [1980] ). “[A]n affidavit from one who has no personal knowledge of the operative facts is without probative value and consequently is insufficient to defeat the motion ( see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776;Sturtevant v. Home Town Bakery, 192 A.D.2d 904, 905, 597 N.Y.S.2d 176)” (Bronson v. Algonquin Lodge Ass'n Inc., 295 A.D.2d 681, 682, 744 N.Y.S.2d 220, 221 [2002] ). This includes an “affirmation by counsel, without personal knowledge of the facts” (Wisnieski v. Kraft, 242 A.D.2d 290, 291, 661 N.Y.S.2d 46, 47 [1997] ). “The mere averment of facts as upon personal knowledge, however, in a verified complaint or in an affidavit is not sufficient unless circumstances are stated from which the inference can be drawn that the affiant has personal knowledge of the facts which he avers. Hoormann v. Climax Cycle Co., 9 AppDiv 579, 41 N.Y.S. 710,cited with approval in Matter of Farley v. Wurz, 217 N.Y. 105, 108, 111 N.E. 479, 480, and in Zenith Bathing Pavilion v. Fair Oaks S.S. Corp., 240 N.Y. 307, 312, 148 N.E. 532, 533, 534;Einstein v. Climax Cycle Co., 13 AppDiv 624, 42 N.Y.S. 1124” (Reitmeister v. Reitmeister, 273 A.D. 652, 654, 79 N.Y.S.2d 22, 24 [1948] ). Neither counsel sets forth the basis upon which they claim personal knowledge, and their assertions that their respective clients evinced an intent to maintain their parental rights “by repeated and regular contact” to DSS caseworkers and the foster care parents are unavailing.
The affidavit by Wright and the attorneys' affirmations submitted in opposition are insufficient to defeat the motions. The assertions that the respondents were each “battling serious drug addictions that rendered it near impossible for [them] to maintain consistent contact”, and that “there were times when [they] would relapse that [they] became so consumed in [their] addiction that [they] were literally incapable of thinking rationally”, in Cox's case, and for Wright “beyond anything other than getting her next high”
, are conclusory and unsupported by evidence in admissible form. “It is well settled that a shadowy semblance of an issue or bald, conclusory allegations, even if believable, are insufficient ( see, Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853;Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776;see also, Pizzi v. Bradlees Div. of Stop & Shop, 172 A.D.2d 504, 567 N.Y.S.2d 852;Assing v. United Rubber Supply Co., 126 A.D.2d 590, 511 N.Y.S.2d 31)” ( Kazakias v. Bistricer, 180 A.D.2d 666, 667, 580 N.Y.S.2d 879 [1992] ). Since no affidavits or affirmations by the respondents' substance abuse treatment providers, nor any documentary evidence, have been furnished which substantiate such allegations, the same have no probative value. Wright's “explanation ... that she was receiving treatment for her substance abuse problem fell far short of the required showing of difficulties so permeating her life as to make contact unfeasible ( see, Matter of John Z. [Julia AA.], 209 A.D.2d 821, 822, 619 N.Y.S.2d 175)” ( In re Alex MM, 260 A.D.2d 675, 676, 688 N.Y.S.2d 707, 709 [1999] ). “Moreover, [i]n a case such as this one where the biological parent's inability to visit with the children results from his own deliberate acts, the underlying circumstances need not preclude a finding of a lack of contact with the children evincing an intent to abandon them' ( Matter of Joshua II, 296 A.D.2d 646, 648, 745 N.Y.S.2d 112 [2002],lv. denied98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186 [2002];see Matter of Julia P., 306 A.D.2d 937, 938, 760 N.Y.S.2d 793 [2003] )” ( In re Nathon O., 55 A.D.3d 995, 996, 870 N.Y.S.2d 466, 467,lv. denied11 N.Y.3d 714, 873 N.Y.S.2d 269, 901 N.E.2d 763).
Daigle affirmation, ¶ 5; Oswald affirmation, ¶ 5.
Wright also asserts in her affidavit that “I have made efforts at contacting my daughter and have met with the childcare agency with respect to my child”, “made numerous and repeated attempts to contact and gain information concerning my child with” the foster parents “on Facebook approximately 3–4 times a week”, and met with one of the foster parents “at his office approximately seven or eight times”. She also claims to have left “stuffed animals, clothing, sippy cups, ... food supplements, and birthday and Christmas presents” for the child. Her efforts at contacting DSS consisted of “calling ... the assigned caseworker and leaving messages for her to call, and that they spoke at least four times. In stark contrast to the detailed allegations of the DSS caseworker's affidavit, Wright does not provide any dates or other specific information regarding these efforts, including the content of her Facebook and phone messages or the subjects actually discussed in her online and telephone conversations with the foster parent and DSS caseworker. No copies of screenshots of her Facebook page, on which her communications with the foster parent would presumably be shown, have been furnished. As to her leaving items at the office of one of the foster parents, no dates are provided and it cannot be ignored that the child's birthday, December 21st, and the Christmas holiday both fall outside of the six month period under review. And because a parent is obligated to communicate with the “agency”, the definition of which does not include a foster parent ( see FCA § 119[a] ), any alleged contacts or communications by Wright with the foster parent would not satisfy that duty. Even assuming that her alleged communications with the foster parent constitute contact or communication with the child, the absence of any information setting forth the sum and substance of those interactions, the approximate dates, and the length of time involved, renders Wright's affidavit insufficient to withstand the motions for summary judgment.
Finally, Wright's claim that she was discouraged from having and pursuing contact with her child and with the agency is insufficient to justify a finding that there exists a real issue of fact, capable of being proven, such that there should be a trial. She does not identify one DSS employee or official who purportedly discouraged her or made the statements which essentially conveyed to her that the child “would be better off with the foster care parents ..., that she should consider surrendering her rights to her child; that caring for her child was too much for [her] to handle; and that, ultimately, if she did not surrender her child, [she] would have her parental rights terminated”. No date or dates when such statements were allegedly made to her have been set forth. Her allegations are belied by the sworn and unrefuted allegations in the DSS caseworker's affidavit in which time and again DSS scheduled meetings for Wright and Cox to attend for the purpose of planning for the child, but neither respondent showed up. Wright does not aver in her affidavit that her failure to appear at one or more of these many meetings was caused in whole or in part by the alleged statements. Under the circumstances of this case, such statements (if made) would be consistent with DSS's obligations to carry out the legislative findings and intent “for children to grow up with a normal family life in a permanent home” and “when it is clear that the birth parent cannot or will not provide a normal family home for the child and when continued foster care placement is not an appropriate plan for the child, then a permanent alternative home should be sought for the child” ( Social Services Law § 384–b [1][a][i]-[iv] ). Those statements, attributed to unknown DSS staff members, without more, do not constitute evidence of acts preventing or discouraging Wright's contact with DSS within the meaning of the statute ( but see Matter of Murrell, 79 A.D.2d 866, 434 N.Y.S.2d 557 [1980] ).
D.
The motions for summary judgment are granted, and counsel for petitioner is directed to submit orders in accordance herewith on notice to all counsel. The parties and counsel shall appear before this Court on July 11, 2012 at 9:00 a.m. for further proceedings consistent herewith and for trial in the related custody proceeding (Docket No. V–00532–12).