Matter of Brown v Westfall
Annotate this CaseDecided on August 23, 2012
Family Court, Yates County
IN THE MATTER OF A PROCEEDING UNDER ARTICLE 6 OF THE FAMILY COURT ACT, Erin Brown, Petitioner
against
Melissa Westfall, Respondent.
AS-518-10/12A
John R. Dangl, Jr., Esq.
Attorney for Petitioner
Peter H. Baker, Esq.
Attorney for Respondent
Janice R. Robinson, Esq.
Attorney for the Child
W. Patrick Falvey, J.
The petitioner brings this petition for an order enforcing a November 22, 2010 Judicial Surrender, post-surrender/post adoption contract agreement ("agreement") regarding her biological child, later adopted by the respondent and her husband on March 23, 2011. Respondents oppose the petition alleging that the petitioner made a material breach of the agreement in that she failed to call to arrange for visitation between the designated time and thus abandoning any future visitations.
A plenary hearing was held on June 21, 2012.
FACTS
The petitioner executed a Judicial Surrender with conditions on November 22, 2010 (Exhibit 1) and the respondents also agreed to allow certain contact of the child by the petitioner.
The conditions subject to this proceeding state:
"A. The Westfalls shall provide to the agency, in February and August of each year [*2]following the adoption and until the child is eighteen years of age, a current photograph of the child and a written report concerning the status of the child, including his health, education, activities and interests; provided that such reports shall contain no information which would reveal the location of the adoptive parents or of the child. Within thirty days of receipt of the report, the agency shall provide the report to Erin Brown by mail, deleting only such information as might reveal the location of the adoptive parents and of the child. Until the child is adopted, the agency shall provide such photograph and report and shall therewith advise Erin Brown concerning the status of the adoption.
B. Erin Brown shall have visitation with the child once each year during the month April for a period of one hour at a public location, the specific day, time and place to be determined by mutual agreement. In order to arrange the visitation Erin Brown shall call the cell phone of Melissa Westfall between April 1 and April 7, inclusive, each year and if the phone is not answered shall leave a phone number where she (Erin Brown) can be reached, and Melissa Westfall or Jeffrey Westfall shall return the call as soon as possible....During the visitation no person resent shall refer to Erin Brown as the child's mother or parent in any manner and shall refer to Erin Brown only by her first name. At the time of execution of this document Melissa Westfall shall provide Erin Brown with her current cell phone number. If at any time there is a change in Melissa Westfall's cell phone number she shall promptly provide the new number in writing to the Deputy Commissioner of the Yates County Department of Social Services, 417 Liberty Street, Penn Yan, NY 14527 and the number shall be provided to Erin Brown on her request. Should Erin Brown fail to call to arrange a visitation as set forth herein or should she fail to attend an arranged visitation, then in that event all visitation shall cease; and all visitation rights of Erin Brown shall be deemed abandoned by her and shall not be enforceable.
C. Erin Brown may give to the child small, appropriate birthday, Christmas and Easter gifts and/or cards. Such gifts and cards shall be delivered or mailed to the agency which shall promptly cause them to be delivered to the Westfalls."
The proof shows that for two years prior to execution of the Judicial Surrender, the petitioner had visitation with her son in her home twice a week and on April 29, 2011, the petitioner had a visit with her biological son (then age 2 1/2) pursuant to the agreement at McDonald's in the Village of Penn Yan. Petitioner did not bring any gifts to the child but the visit went well. Gifts were not given to the child since the surrender as the mother testified that she could not afford any. Nor had the petitioner sent any cards to the child since April, 2011.
In 2011 the petitioner had a telephone number for respondent. The number was in her cell phone, but sometime in December of 2011 she had to change her cell phone because the battery would not take a charge. During this process she lost respondent's cell phone number as she did not take it out of her old government phone and put it into her new one.
The petitioner got a new phone number but didn't give it to Yates County Department of Social Services (DSS) caseworker, Sarah Laun until February 15, 2012. Laun gave it to the respondent who acknowledged receiving it in a letter to the petitioner dated February of 2012 (Exhibit 2).
As the time for the April, 2012 visit approached the petitioner realized she no longer had respondent's phone number. She called Laun a number of times in order to get respondent's [*3]number. But she did not get a return call from Laun until after April 7th, which was outside the specified time period to contact respondent to arrange for her yearly visit. Even so, the petitioner attempted to call and leave messages with the respondent, but respondent did not return petitioner's calls. As a result, no 2012 visit took place in accordance with the agreement. Clearly, it was the petitioner's and not the respondent's responsibility under the agreement to call and arrange for the yearly visitation.
Petitioner had no phone records to back up her claim that she called Laun numerous times between February and April, 2012. Petitioner did not attempt to call the Westfalls at their published phone book number. However, she felt that would be a breech of the agreement as it set out that the only way to contact respondent was through her cell phone and not her home phone.
Sarah Laun testified that it was her recollection that she first heard from the petitioner at the end of March 2012 regarding giving petitioner's new phone number to respondent. However, this is contradicted by respondent's February, 2012 letter to the petitioner acknowledging receipt of her new telephone number. On or about April 10th, respondent contacted Laun and said that petitioner did not contact her regarding the set-up of the yearly visit. She wanted this documented in her foster care file. Prior to the April 10, 2012 call from the Westfalls, Laun said she had not received any request from the petitioner for the Westfalls' phone number.
LAW AND CONCLUSIONS
Two issues are presented herein. First, was there a material breach of the contract where the biological mother did not call to arrange the visit between the April 1st and 7th dates, as required in the agreement because she did not have respondent's cell number, and did not make the call until after April 7th? Second, would terminating the agreed visit between the biological mother and child be in the child's best interest?
In Mtr ov Mya V. P., 79 AD3d 1794 (4TH Dept 2010), the Court found that the hearing court correctly applied principals of contract law in making its determination that the agreement was void because the biological mother breached the contract by missing visits due to her incarceration. The agreement provided it would be voided if the biological mother missed two visits during any 12 month period. But, the Appellate Division also remitted the matter to Family Court for a new hearing to determine whether enforcement of the agreement was in the best interests of the child.
In the case at bar the petitioner did not strictly comply with the terms of the agreement but, unlike the mother in Mya V. P., she was certainly ready, willing and able to participate in a visit. In addition, the petitioner amply explained why she did not make the call in the required time frame, and she offered a reasonable excuse why she didn't. The record shows the respondent had petitioner's new telephone number by February 2012. The petitioner corrected her breach as soon as she got the respondent's phone number and in the meantime, she made efforts to obtain it from DSS.
As to best interests, the petitioner's proof was that she participated in the visit in 2011, and that it went well. Petitioner also testified that before the surrender, she exercised her visits with the child in her home, twice a week, for two years.
There was no proof contradicting the petitioner's testimony that she had visits before the [*4]surrender, and by all accounts, the post surrender visit, even though the child and petitioner did not have physical contact went well. Here, the lack of physical contact by itself is insufficient to prove that the agreed upon visit would not be in the child's best interest.
The Court therefore finds that the petitioner's failure to comply with the provision requiring her to contact respondent between April 1 and April 7 regarding the 2012 visit was a breach of the agreement. However, given the nature of the circumstances surrounding the breach, including the petitioner's timely attempt to cure same and lack of proof that the annual visit is not in the child's best interests, the Court will not vacate the visitation provision of the agreement.
However, the petitioner is bound in all respects by the terms of the agreement as it relates to all future yearly visits beginning in 2013 and thereafter.
This constitutes the Decision and Judgment of the Court.
Petitioner's counsel to submit order.
SO ORDERED.
Dated: August ____, 2012_____________________________
W. Patrick Falvey
Yates County Family Court Judge
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