In the Matter of Martirano

Papers considered:1. Notice of Motion by Jon A. Simonson, Esq. filed September 28, 20172. Affidavit of Linda Hawley in support of motion for summary judgment3. Memorandum of Law by Jon A. Simonson, Esq. in support of his client’s motion for summary judgment4. Notice of Cross Motion by Daniel G. Heppner, Esq. filed October 31, 20175. Affidavit of Daniel G. Heppner, Esq. in support of his client’s cross-motion for summary judgment6. Reply Memorandum of Law by Jon A. Simonson, Esq. filed December 1, 2017 in further support of Linda Hawley’s motion for summary judgment and in opposition to Michael Hawley’s cross-motion for summary judgment7. Reply Affirmation and Reply Memorandum of Law by Daniel G. Heppner, Esq. filed December 1, 2017DECISION/ORDER This is a decision on a motion and cross-motion for summary judgment. It arises from a petition to probate the last will and testament of Christopher Martirano, who died at age 48. Because the attesting witnesses to the will were also its chief beneficiaries — thereby invalidating their bequests under EPTL §3-3.2(a)(2) — decedent’s $1,000,000 estate will pass largely by intestacy. Linda Hawley, the decedent’s mother, is putatively his sole distributee.Linda Hawley’s older son, Michael Hawley, claims that his mother abandoned her children and is thereby barred from inheriting under the parental disqualification provisions of the Estates, Powers and Trusts Law. The issue came before the Court by means of Michael Hawley’s petition for declaratory relief. If successful, Michael Hawley and decedent’s other siblings will qualify as distributees and inherit the portion of the estate passing by intestacy.What makes this proceeding unusual is that the “child” in the parental-child relationship under review would be 52 years old if he were alive today. The decades intervening since his childhood create evidentiary challenges for the parties, who are unable to produce witnesses (other than Linda Hawley) with personal knowledge of the parent-child relationship during the critical years of decedent’s youth. Another challenge resulting from the passage of nearly four decades are the evolving legal standards and societal expectations for parents — for mothers in particular.In March 1966, the decedent and his three brothers were found alone and unaccompanied by an adult in various public places in Montreal. The decedent was then an infant. His older brother, petitioner Michael Hawley, was 2 1/2 years old at that time. The boys were placed in a Catholic Charities orphanage. Linda Hawley learned about their placement approximately a year later, at which time she sought their return. Eventually, three of the four children were returned to her, but the youngest (the decedent) remained in foster care. The decedent left foster care when he graduated from high school at 17. He was not in touch with his mother again — and his whereabouts were unknown to her — until he contacted her in 1991; he was then 26 years old.Elements of EPTL DisqualificationMichael Hawley invokes EPTL §4-1.4(a)(1), which provides, in pertinent part, as follows:a) No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of twenty-one years:(1) has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child.EPTL §4-1.4(a)(1) thus imposes an “equitable penalty of disinheritance” on a parent who is found to have forsaken his/her parental obligations (Matter of Wigfall, 20 Misc 3d 648, 652 [Surr Ct West Cty 2008]).The Court’s threshold task is to determine if either party has made a prima facie case under EPTL §4-1.4(a)(1) of failure to support or abandonment of the decedent and a failure to subsequently resume the parent-child relationship prior to his 21st birthday.Failure to support and abandonment are separate and distinct grounds; proof of either will cause the parent to be disqualified under EPTL §4-1.4(a)(1) unless the parent-child relationship is resumed before the death of the child (Matter of Baecher, 198 AD2d 221 [2d Dept 1993]; Matter of Gonzalez, 196 Misc 2d 984, 987 [Surr Ct Bx Cty 2003]). In either case, a party seeking disqualification must prove that the failure to support the child or abandonment was a voluntary or deliberate act (Matter of Wigfall, 20 Misc 3d 652). The burden of proof is on the party asserting disqualification (Matter of Clark, 119 AD2d 947 [3d Dept 1986]).Neither “failure to support” nor “abandonment” is defined in the EPTL. Courts applying the disqualification statute have relied on Family Court Act §413 when determining a parent’s duty and ability to support his/her child (Matter of Ball, 24 AD3d 1062 [3d Dept 2005]). In contrast, courts considering abandonment in EPTL disqualification proceedings have relied exclusively on principles established in common law (see, eg, Matter of Ball, 24 AD3d 1062 [3d Dept 2005]).For the purposes of this decision, a review of the relevant statutory terms is necessary:Duty of Support.Family Court Act §413(1)(a) as it now reads details the scope of the financial support owed by all parents to their children under the age of 21. But it has not always been that way. At common law, fathers were solely responsible for the support of their “legitimate” children. (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY Book 29A, FCA §413 [2008]). The support provisions of the Family Court Act enacted in 1962 reflected this cultural norm and Section 413 referred only to a father’s duty of support. Similarly, Section 414 (repealed), shifted the duty of support to the mother only if the father was dead or incapacitated (Estate of Kummer, 93 AD2d 135 [2d Dept 1983]; see Matter of Quat v. Freed, 25 NY2d 645 [1969] “regardless of the mother’s financial resources the primary duty of support rests on the father.”) It was not until 1980 that the legislature, mindful of equal protection issues, amended FCA §413 to make the parental support obligation gender-neutral (L 1980, ch 281, §§28, 29; Carter v. Carter, 58 AD2d 438 [2nd Dept 1977]).Family Court Act Section 413 now applies to all parents, regardless of gender. The obligation remains, however, limited to parents who are of “sufficient means or able to earn such means.” Those with the means have a duty to provide a “fair and reasonable sum” for the support of the child (see Estate of Maracallo, NYLJ, May 12, 1999, at 32, col 1 [Surr Ct Bx Cty]). In this formulation, courts distinguish between parents who are unable to provide support and those who are merely unwilling to perform their parental obligations (Matter of Emiro, 5 Misc 3d 1002(A), 133A [Surr Ct West Cty 2004]).Abandonment.In EPTL disqualification cases, abandonment will be found if a parent fails on common-law principles to care for and train his/her child and supervise and guide the child’s growth and development (Matter of Wigfall, 20 Misc 3d 648, 652 [Surr Ct West Cty 2008]). The abdication of the parental obligation, if any, must have been voluntary. (Matter of Wigfall, 20 Misc 3d 648, 652 [Surr Ct West Cty 2008]). Placement of a child in foster care is not equated with abandonment, nor does it relieve a parent of the duty to support (Estate of Bryan Cohen, 1994 NYU LEXIS 1529 [Surr Ct Nassau Cty 1994]; Dutchess County Dept of Social Services ex re Day v. Day, 96 NY2d 149 [1991]).Resumption of Parental Relations.Under both EPTL §4-1.4(a)(1) and FCA §413, any resumption of the broader obligations of parenthood must occur while the statutory obligations of parenthood are still in force: that is, prior to the deceased child’s 21st birthday.¹ Once a child reaches age 21, the child is “emancipated, as a matter of law, absent exceptional circumstances, and a parent is no longer chargeable for [his/her] support,” even if the child is disabled and not self-supporting (Hoffman v. Hoffman, 122 AD2d 583, 584 [4th Dept 1986]). Here the court is required to consider if Linda Hawley resumed a parent-child relationship with the decedent only if it first finds that she voluntarily failed to support or abandon him while she still had a legal duty to do so.Summary JudgmentSummary judgment is designed to eliminate from the trial calendar litigation which can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Allegations must be specific and detailed and substantiated by evidence in the record (see Matter of Foranoce, NYLJ, Aug 7, 2000, at 25, col 6 [Surr Ct NY Cty]). The movant must demonstrate first, that there are no material, triable issues of fact and second, that it has proved its cause of action and is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp, 68 NY2d 320 [1986]).If the moving party fails to meet its burden of proof, summary judgment must be denied “regardless of the sufficiency of the opposing papers” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). The non-moving party is not obliged to persuade the court against summary judgment (Voss v. Netherlands Ins. Co., 22 NY3d 728, 734 [2014]).If, on the other hand, the movant proves his/her prima facie case, the burden shifts to the party opposing the motion to produce admissible evidence of material issues of fact requiring a trial. Unsubstantiated allegations will be insufficient to defeat a motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557 [1980]).The court’s role on a motion for summary judgment is to identify for trial any disputed material facts (Sillman v. Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]). Its primary task is thus not to determine contested facts, but merely to determine if any such issues of fact exist (Barr v. County of Albany, 50 NY2d 247, 254 [1980]; In re Estate of Gonzalez, 196 Misc 2d 986). In so doing, the facts must be construed in the light most favorable to the non-moving party (see Martin v. Briggs, 235 AD2d 192 [1st Dept 1997]).By virtue of their competing motions for summary judgment, the parties in this case have effectively stipulated that there are no material issues of fact. Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 [1975] (“where there are cross motions for summary judgment, in the absence of either party challenging the verity of the alleged facts,… there is, in effect, a concession that no question of fact exists”). The Court’s task is thus to examine the record and determine if either of the parties have made their case as a matter of law.The RecordThe Court has considered the following evidence in rendering this decision:Linda HawleyAnswerMichael Hawley’s Petition for Declaratory Relief²Affirmation in support of motion for summary judgmentPortions of Linda Hawley deposition testimonyMichael HawleyAffirmation in support of cross-motion for summary judgmentLinda Hawley Response to Demand for InterrogatoriesPortions of deposition testimony of Michael Hawley, Dennis Halliwell and Nikko CruzAuthenticated redacted Catholic Welfare Bureau³ records of the decedent’s years in foster careLetter from TELUS Privacy Request Centre regarding telephone calls placed between Linda Hawley and decedent for the period July 8, 2010 — July 8, 2014Obituary republished in Legacy.comE-mail from Ministry of Children and Family Development regarding services for children in the vicinity of Castlegar, British Columbia 1973-1981The records created by Catholic Welfare Bureau (“CWB”) during the time that Linda Hawley’s sons were in its care comprise the lion’s share of the documentary evidence offered in this proceeding. They consist largely of internal CWB memoranda, reports, and evaluations. The Court’s May 15, 2017 decision addressed the admissibility of these records at length and held that they are replete with inadmissible double-hearsay. Some of the authors of the reports or compilations were identified, but the names of the reporters whose observations and statements are contained in them are redacted or unknown. Nor was there any indication of the capacity in which these reporters make their statements, or their legal duty to report (Johnson v. Lutz, 243 NY 124 [1930]; CPLR §4518(a)). There were thus no means by which the Court could assess the reliability of conclusory statements like these:[Christopher Martirano] was abandoned by his mother on June 25, 1966 at the Montreal Provincial Bus Terminal.[Linda Hawley] has found it impossible to care for the children… she is a depressive personDuring her husband’s imprisonment, [Linda Hawley] took off with another man, abandoning her children.Notwithstanding the Court’s earlier decision on their admissibility, the CWB records must be considered anew because they are now offered in opposition to Linda Hawley’s motion for summary judgment. Phillips v. Kantor & Co., 31 NY2d 307, 312 [1972] (hearsay evidence will not be “shut out’” from consideration when offered in opposition to a motion for summary judgment). Indeed, hearsay evidence alone may be sufficient to defeat a motion for summary judgment, but only if it can be shown that the defect is curable at trial (Landisi v. Beacon Community Dev Agency, 180 AD2d 1000 [3rd Dept 1992]). Such a showing is accomplished by means of an affidavit identifying the witnesses by name and describing the substance of their testimony and how the witnesses acquired their knowledge (Gizzi v. Hall, 300 AD2d 879, 881 [3d Dept 2002]). An acceptable excuse for the failure to tender evidence on the motion in admissible form must also be provided (Zuckerman v. City of New York, 49 NY2d 562).Mr. Hawley has neither cured the evidentiary defects in the CWB records nor provided an excuse for his failure to tender them in admissible form. He offers no affidavit identifying the witnesses to the events and circumstances described in the CWB records. He has not affirmed what their testimony at trial might be (Landisi v. Beacon Community Dev. Agency, 180 AD2d 1000, 1002-1003 [3d Dept 1992]). The Court has thus received no assurance that the makers of the statements found in the CWB records can be produced for trial (Landisi v. Beacon Community Dev. Agency, 180 AD2d at 1002-1003).Since there is no reason to believe that the inadmissible hearsay evidence on which Michael Hawley now relies can be rendered admissible for trial or proved by alternate or additional admissible evidence at trial,⁴ the CWB records (other than those previously found to be admissible in this Court’s 2017 decision)⁵ will not be considered in opposition to Linda Hawley’s motion for summary judgment. This Court’s prior decision in this matter precludes the use of these records in support of his cross-motion.The competent evidence in this proceeding is thus limited to the parties’ verified pleadings and deposition testimony (to the extent that they are based on personal knowledge), Divorce Decree of Richard and Linda Martirano, and the authenticated CWB reports found admissible in the Court’s prior decision. Evidence of the relationship between the decedent and Linda Hawley after his 21st birthday is not relevant in the determination of parental disqualification and will not be not considered in these proceedings (EPTL §4-1.4(a)(1) and FCA §413).Mr. Hawley concedes he has no personal recollection of his placement or knowledge of the decedent’s relationship with his mother prior to his brother’s visit to Castlegar in 1981. The only witness with personal knowledge of the contacts between Linda Hawley and the decedent, his foster parents or CWB prior to his 21st birthday is Linda Hawley herself.In making its determination, the Court accepts and relies upon the following undisputed facts established in the record:1. Linda Hawley became pregnant with her first child at age 15 when she was in 7th grade. Her mother sent Linda to live in Toronto because her pregnancy was a “disgrace.” She received assistance from the Salvation Army while she was in Toronto. She married Richard Martirano, the father of her child, when she was 16. Martirano was in and out of jail throughout their marriage and he never contributed to his children’s support. During that time, Linda had difficulty finding employment and she and the children often had to stay with family or friends because she couldn’t afford to pay rent. On other occasions when Martirano was incarcerated, Linda’s brother moved in with her and paid the rent for the family’s apartment. She received welfare and unemployment benefits. Even after Linda Hawley remarried and the family moved to British Columbia, the finances were just enough to “make do.”2. In March 1966, while her husband was still incarcerated, Hawley took her children to visit her husband’s Uncle Matt and his wife Maureen in Quebec, a 2 34 hour bus ride from Montreal. She agreed to leave her oldest son, Richard, with them for a week’s visit. At the end of the week, they refused to return Richard to her and would not permit her to talk to him. She did not alert authorities or attempt to obtain his return through the judicial system.3. A few months later, after the children’s father was released from prison, Linda permitted him to have the decedent and his two brothers for a day’s visit. He did not return them and they joined their brother Richard at Uncle Matt’s house. Linda believed that her husband would return them after a period of custodial time. She felt that given the time their father had spent away from his children, it was appropriate that he take responsibility for them. And she had a high opinion of her husband’s uncle and his wife with whom her husband and children were then residing.4. When, over a year later, Linda Hawley contacted her husband’s family to make arrangements to pick up her children, she was told by her husband’s Aunt Julie that “they were keeping them… because [Linda] had a boyfriend and he was sleeping in [her] bed.” She received the same answer each time she inquired. Sometimes, the person on the other end of the line just hung up. Again, she did not alert authorities or attempt to obtain her children’s return through the judicial system.5. In June, 1966, the children were found alone and unsupervised in a Montreal department store and the provincial bus terminal. There was no evidence that they had been in their mother’s custody or control at the time they were left or that she had a role in the events leading to their placement. The children were placed in the custody of the Catholic Charities (the parent organization of CWB), at their orphanage Creche d’Youville in Montreal.6. Without notice to Linda or her consent, the children were made “wards of the court.”7. In September 1967, Linda Hawley learned from her sister-in-law that Richard Martirano had told the children that she (Linda) had died. She also learned that the children had been placed in Creche d’Youville. She went there to seek their return, which was denied. Linda did not believe she had the right to contest CWB’s custody of her children, so again, she did not alert authorities or attempt to obtain her children’s return through the judicial system.8. CWB required Linda to obtain counseling and establish a stable home for her children as a condition to visitation and regaining custody. She visited her children at least twice each month and had periodic home visits from CWB. She finished her high school education, got a job and home and ultimately created a home with Ivan Hawley that satisfied CWB. During this time, she communicated with persons identified in the CWB records, such as “Sister G” (Sister Guyon), “M. Bybel” and “Mr. Dorion,” who were involved with supervising the decedent’s care and education. There is no evidence that CWB or any other agency charged with their care ever required support payments from Linda. Linda testified that she occasionally gave her children cash while they were in foster care. She did not make payments to CWB for their support.9. Linda was divorced from the children’s father in 1970. The Quebec Provincial Superior Court decree awarded custody of the four boys (including the decedent) to Linda. No child support was ordered or awarded to Linda. She married Ivan Hawley in 1972.10. By 1971, Linda had satisfied CWB that she had created an appropriate home and the two oldest children were returned to her. After a year, satisfied with the older boys’ transition, CWB returned Michael Hawley to her custody, too. The decedent remained in the care of CWB.11. In 1973 Linda Hawley and the three boys moved to Vancouver, British Columbia to join her husband. CWB denied her request to bring the decedent to British Columbia with them telling her he would receive superior services for his developmental and academic issues in Montreal.12. The decedent was then living with the Bradys, in what would be his final foster home placement. Linda met Mrs. Brady and continued to make twice-monthly phone calls to the decedent. Occasionally, the decedent would call Linda using a friend’s telephone. These long distance calls must have been costly, because Linda recalled that Mrs. Brady was angry on the one occasion that the decedent used the house telephone to call his mother.13. When they found that living in Vancouver was too expensive, Linda and her husband moved to Castlegar, British Columbia in 1975. Castlegar was a rural community and the closest large city was Vancouver, ten (10) hours away by car. Bus travel between Castlegar and Montreal — several thousand miles away — was a days-long affair.14. Linda again petitioned CWB for custody of the decedent in 1975. CWB again denied her request, citing his developmental and academic needs and the superior resources available to him in Montreal. The services available in Castlegar consisted of once-weekly sessions with a professional, each lasting a few hours.15. After the move to Castlegar, Linda visited the decedent every two years: 1975, 1977, 1979, and 1981. She continued to send him birthday and Christmas gifts each year and continued to call him twice monthly. The decedent often asked Linda if he could live with her and his brothers. She told him that he needed to stay in Montreal for his education and the additional services he could receive there.16. In 1975, Linda renewed her request to have the decedent returned to her during a visit to Montreal. Again, CWB refused to release the decedent on the grounds that he could not receive the services he needed in Castlegar.17. Linda obtained CWB’s permission for a home visit for the decedent, and he spent two weeks in Castlegar in 1981. CWB’s permission was conditioned on his return — under threat of arrest for failure to do so — so when the decedent asked his mother to remain with the family at the conclusion of his visit, Linda was compelled to say no to him rather than risk arrest. When Linda visited the decedent in Montreal later in 1981, she again requested to have him returned to her custody, but her request was denied since he was close to graduation.18. In 1982, the decedent graduated from high school. He was 17 years old. He sent his mother graduation photos. He then left his foster home and the custody of CWB. Linda next heard from him again in 1991, when he sent her a photograph of himself.Michael Hawley does not challenge the veracity of his mother’s testimony with competent evidence and it is therefore deemed admitted by him (Kuehne & Nagel v. Baiden, 36 NY2d 539, 544 [1975]). He makes his case for EPTL disqualification primarily by questioning the adequacy of Linda Hawley’s financial support and the nature and extent of her involvement in the decedent’s life. Thus at deposition, Ms. Hawley was asked why she did not visit or telephone more often, demand periodic progress reports from foster parents and the decedent’s school, contest the decision of CWB to keep the decedent for educational services, or move to an area where more comprehensive services could be obtained for him. These questions assume that the legal and social services widely available to families in New York State in 2018 were available fifty years ago to families in Montreal and rural British Columbia.⁶ The Court has no basis upon which to make such an assumption.Findings of Fact and LawIn these summary judgment proceedings, the parties each agree that there are no material issues of fact before the Court. Both parties have had ample opportunity to identify and produce witnesses or documentary evidence tending to prove the state of the parental relationship during the decedent’s childhood. Nothing further has been forthcoming and there is no prospect that a trial would yield new testimony or additional documentary evidence. Their agreement on the absence of triable issues of fact means that each has satisfied his/her initial burden in summary judgment. The Court’s decision is thus limited to determining whether either of them has established a prima facie entitlement to judgment on the issue of parental disqualification.The burden of proving disqualification is on petitioner Michael Hawley (Matter of Clark, 119 AD2d 947 [3d Dept 1986]). The court makes the following findings with respect to the elements of EPTL 4-1.4(a)(1):Duty to Support.Linda Hawley admitted that she made only occasional gifts of cash to her son directly. Under current New York law, the fact that there was no court-ordered support or demand for support made by CWB does not shield her from the obligation to support her child, nor does the fact that the expense of raising her son was assumed by CWB (Comm’r of Soc Servs ex rel Wandel v. Segarra, 78 NY2d 220, 224 (1991); Dutchess County Dept of Social Services ex re Day v. Day, 96 NY2d 149 [1991]).It is the universal practice in EPTL disqualification cases to rely on FCA §413 to determine the extent of a parent’s financial obligation of support. But to do so begs the question: is it appropriate or fair to apply contemporary New York laws and community standards to a parent and child residing in Quebec and rural British Columbia several decades ago? It requires only a cursory review of sections 413(c) and (d), which govern the calculation of a parent’s basic child support obligation, to see that it is not. For example, FCA §413(d) provides that if payment of the amount calculated under subsection (c) would reduce the income of the non-custodial parent below federal poverty income guidelines, then his/her basic child support obligation shall be fixed at $25.00 per month or less. Very simply, this Court has no way to determine how to translate $25.00 per month in 2018 US dollars into 1960s — 1980s Canadian dollars. How, then, to determine the financial standards of support to which Linda Hawley should be held?Linda Hawley’s testimony establishes that she struggled financially during the entire time her children were in CWB’s care. She received no support from the decedent’s father. She and the children were often homeless. During the time her children were young, she received charitable assistance from the Salvation Army, Catholic Charities, and public sources. Even after her marriage to Ivan Hawley, the household finances were never entirely secure. It is very possible that her situation was sufficiently dire that a contemporary court would have found that she lacked sufficient means (or the ability to earn such means) to contribute a fair and reasonable sum for the support of her children (Matter of Emiro, 5 Misc 3d 1002(A), 133A [Surr Ct West Cty 2004]).Here the conduct of CWB, rather than the content of its records, is highly relevant. CWB made no demand on Linda Hawley for support, nor did CWB make her financial support a condition to visiting her children or, ultimately, obtaining the return of three of her four sons. Perhaps CWB did not have legal grounds to make such a demand on Linda Hawley: after all, the New York State Legislature did not expressly impose a duty of support on mothers until 1980. More likely, CWB made a determination that Linda Hawley lacked the means to make support payments, especially after she resumed custody of her three older sons.Given the absence of any act by CWB or a court of competent jurisdiction to enforce a parental support obligation against Linda Hawley while decedent was placed with CWB, and the ample evidence of her financial inability to contribute to his support under any circumstance, the Court finds that Linda Hawley was not obligated to contribute to the financial support of decedent.Therefore, Michael Hawley’s petition to disqualify Linda Hawley on grounds of failure to support is denied.Abandonment.There is no evidence implicating Linda Hawley in the activities that led to the placement of her sons in Creche d’Youville in Montreal in 1966. It therefore cannot be said that she deliberately or voluntarily surrendered her children to the custody of CWB. The question is, then, did Linda Hawley maintain a parent-child relationship with the decedent during the time he was in CWB’s care?Again, the Court returns to the record of Linda Hawley’s conduct and CWB’s acts to provide a context for her relationship with her youngest son. After Linda Hawley identified herself to Creche d’Youville as the children’s mother, CWB adopted a program to enable her to regain custody of her children. Her efforts in that regard included:1. returning to school to complete her high school education, obtaining formal training in accounting, and creating a stable home with her second husband;2. participating in counseling;3. submitting to periodic home visits by CWB;4. maintaining contact with CWB personnel regarding the decedent’s care and education;5. maintaining contact with the decedent to the extent her limited finances permitted by twice-monthly telephone calls, and biannual visits to Montreal; and6. repeated applications to CWB for his return.We presume that since the decedent was a “ward of the court,” CWB could have petitioned to terminate Linda Hawley’s parental rights and free the decedent for adoption at any time while he was in CWB’s care. There is no evidence that CWB or any public agency took any steps to terminate or suspend Linda Hawley’s parental rights. Instead, after she demonstrated progress in creating a stable home for her children, CWB returned three of her sons to her custody in 1971 and 1972. When Linda Hawley continued to press for the return of her youngest son, CWB refused because they determined that the decedent could not receive the services he needed in the area of British Columbia where Linda Hawley and her family resided. There is no evidence that CWB refused her request on the grounds of her failings as a parent or her abdication of parental duties.CWB never gave up on Linda Hawley and Linda Hawley never gave up on the decedent. For that reason, Michael Hawley’s petition to disqualify on the basis of abandonment is denied.As discussed above, the Court is not required to consider whether there was a resumption of parental relations because neither a failure to support nor abandonment has been proved.Considering the entire record, the Court finds that Michael Hawley has not met his burden of proof by tendering competent evidence sufficient to establish a prima facie case of parental disqualification under EPTL §4-1.4(a)(1). His cross-motion for summary judgment on these grounds is therefore denied.Linda Hawley’s unopposed and uncontroverted statements regarding her relationship with the decedent are deemed “due proof of the facts therein stated” (SCPA 509; Estate of Penneroux, 2017 NYU LEXIS 379 [Surr Ct Suffolk Cty]). Those facts are sufficient to defeat Michael Hawley’s petition for parental disqualification and her motion for summary judgment is therefore granted.ORDERED, ADJUDGED, and DECREED, that:(1) Michael Hawley having failed to establish entitlement to judgment as a matter of law, his cross-motion for summary judgment is denied;(2) Michael Hawley having failed to prove that his mother is disqualified under EPTL §4-1.4(a)(1), his petition for parental disqualification is dismissed;(3) Linda Hawley’s motion for summary judgment is granted, and(4) Linda Hawley is qualified to inherit from the decedent in intestacy under EPTL §4-1.1.This constitutes the Decision and Order of the Court. All papers, including this Decision and Order, are hereby entered and filed with the Clerk of the Surrogate’s Court.Dated: April 12, 2018