Matter of Colby II. , 43 N.Y.S.3d 587 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 15, 2016 521845
________________________________
In the Matter of COLBY II.,
Alleged to be an
Abandoned Child.
ALBANY COUNTY DEPARTMENT FOR
CHILDREN, YOUTH AND MEMORANDUM AND ORDER
FAMILIES,
Respondent;
SHEBA II.,
Appellant.
________________________________
Calendar Date: October 17, 2016
Before: Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.
__________
Jo M. Katz, Troy, for appellant.
Daniel C. Lynch, County Attorney, Albany (Jeffrey G.
Kennedy of counsel), for respondent.
Jeffrey S. Berkun, Albany, attorney for the child.
__________
Mulvey, J.
Appeal from an order of the Family Court of Albany County
(Maney, J.), entered January 9, 2015, which granted petitioner's
application, in a proceeding pursuant to Social Services Law
§ 384-b, to adjudicate the subject child to be abandoned, and
terminated respondent's parental rights.
Respondent is the mother of a son (born in 2002). In
August 2013, pursuant to Family Ct Act § 1024, the child was
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removed from respondent's care. Following fact-finding hearings,
Family Court adjudicated the child to be neglected and, in April
2014, placed him in the custody of petitioner. In August 2014,
petitioner commenced this proceeding to terminate respondent's
parental rights on the ground of abandonment. Following a fact-
finding hearing, the court determined that respondent had
abandoned the child and terminated her parental rights.
Respondent now appeals.
"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 abandonment petition, although able to do so and
not prevented or discouraged from doing so by petitioner" (Matter
of Dimitris J. [Sarah J.], 141 AD3d 768, 769 [2016] [internal
quotation marks, brackets and citations omitted]; see Social
Services Law § 384-b [5] [a]). Once petitioner establishes that
a parent failed to maintain sufficient contact with a child for
the statutory period of six months, the burden shifts to the
parent to establish that he or she "maintained sufficient
contact, was unable to do so, or was discouraged or prevented
from doing so by petitioner" (Matter of Kaitlyn E. [Lyndsay E.],
75 AD3d 695, 696 [2010]; see Matter of Dior H. [Rondu H.], 77
AD3d 1066, 1067 [2010]).
We find that petitioner met its burden of demonstrating
that respondent failed to maintain sufficient contact with the
child for the relevant period through the testimony of both the
caseworker and the clinical case manager. Their testimony was
sufficient to shift the burden to respondent to establish that
she maintained sufficient contact with the child during the
statutory period. Respondent attempted to prove that she had
contacted the child through her proffered testimony and
documentary proof regarding Facebook messages between her and the
child during the relevant period. Respondent's principal
contention on appeal is that Family Court erred in its rulings
that no proper foundation had been established for the admission
of proof that she had communicated with the subject child by
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Facebook messenger1 using her adult son's account. The parties
stipulated that the child did have contact with respondent
through Facebook, and, specifically, that the child was the
sender of Facebook messages transmitted under his name. Although
the parties so stipulated, Family Court erred in finding that
respondent failed to establish a foundation for the proffered
document through her testimony and in precluding her testimony
regarding the frequency of her communications with the child via
Facebook.
A recorded conversation – such as a printed copy of the
content of a set of cell phone instant messages – may be
authenticated through, among other methods, the "testimony of a
participant in the conversation that it is a complete and
accurate reproduction of the conversation and has not been
altered" (People v Agudelo, 96 AD3d 611, 611 [2012] [internal
quotation marks, brackets and citation omitted], lv denied 20
NY3d 1095 [2013]). Notably, "[t]he credibility of the
authenticating witness and any motive she [or he] may have had
to alter the evidence go to the weight to be accorded this
evidence, rather than its admissibility" (id.). Respondent
testified that she was present when her counsel printed the
Facebook messages at his office, and that she reviewed the entire
document to ensure that it was a full and complete copy. The
aforementioned stipulation and respondent's testimony, when
combined with her adult son's testimony confirming that he had
provided respondent with his account information, password and
permission to use the account for communication with the child,
constituted a sufficient foundation for the admission into
evidence of the printed messages and her related testimony (see
People v Ely, 68 NY2d 520, 527-528 [1986]; People v Green, 107
AD3d 915, 916-917 [2013], lv denied 22 NY3d 1088 [2014]; People v
Agudelo, 96 AD3d at 611).
1
"Facebook . . . has a private messaging service that
works much like an email account, or text function on a smart
phone" (Matter of 381 Search Warrants Directed to Facebook, Inc.
[New York County Dist. Attorney's Off.], 132 AD3d 11, 13 [2015],
lv granted 26 NY3d 914 [2015]).
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By erroneously precluding this proffered evidence,
Family Court deprived respondent of her due process right to a
full and fair opportunity to be heard. In a proceeding to
terminate parental rights "the court is obliged to ensure that
the proceeding is fair and that due process is afforded to an
individual whose parental rights may be terminated" (Matter of
Eileen R. [Carmine S.], 79 AD3d 1482, 1483 [2010]). The
frequency and content of these Facebook communications are
relevant in determining whether respondent initiated or
maintained substantial contact with the child during the
statutory period (see Matter of Dior H. [Rondu H.], 77 AD3d at
1068; Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d at 696).
Accordingly, we reverse the order and remit the matter for a
further fact-finding hearing at which the printed Facebook
messages are to be admitted into evidence and respondent
permitted to testify as to, and be cross-examined on, the nature
and extent of her Facebook communications with the child and any
other issues related thereto.
In light of our determination, respondent's remaining
contentions are academic.
Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur.
ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Albany County
for further proceedings not inconsistent with this Court's
decision.
ENTER:
Robert D. Mayberger
Clerk of the Court