Opinion
526753
10-24-2019
In the MATTER OF DAMIEN D. and Others, Alleged to be Abandoned Children. Broome County Department of Social Services, Respondent; v. Ronald D., Appellant.
O'Connor & O'Connor, Binghamton (Donald J. O'Connor Jr. of counsel), for appellant. Broome County Department of Social Services, Binghamton (Kuredin Eytina of counsel), for respondent. Feyi Gaji, Binghamton, attorney for the children.
O'Connor & O'Connor, Binghamton (Donald J. O'Connor Jr. of counsel), for appellant.
Broome County Department of Social Services, Binghamton (Kuredin Eytina of counsel), for respondent.
Feyi Gaji, Binghamton, attorney for the children.
Before: Garry, P.J., Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND ORDER
Clark, J. Appeal from an order of the Family Court of Broome County (Young, J.), entered April 4, 2018, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject children to be abandoned, and terminated respondent's parental rights.
In October 2016, while respondent was housed in a secure drug treatment facility, petitioner commenced this abandonment proceeding seeking to terminate respondent's parental rights to his three children (born in 2009, 2011 and 2012), who had been in foster care with their paternal great aunt for roughly two years. Following a fact-finding hearing, Family Court granted petitioner's application and terminated respondent's parental rights. Respondent appeals.
A finding of abandonment may be made and parental rights terminated when, during the six months preceding the filing of the petition, the "parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child[ren] and communicate with the child[ren] 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] ; see Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d 1188, 1189, 51 N.Y.S.3d 240 [2017], lv denied 29 N.Y.3d 913, 2017 WL 2683227 [2017] ). A parent, even an incarcerated one, is presumed to be able to maintain contact with his or her children (see Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1189, 51 N.Y.S.3d 240 ; Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d 1050, 1050, 981 N.Y.S.2d 177 [2014], lv denied 23 N.Y.3d 901, 2014 WL 1705650 [2014] ; Matter of Ryan Q. [Eric Q.], 90 A.D.3d 1263, 1264, 935 N.Y.S.2d 179 [2011], lv denied 18 N.Y.3d 809, 2012 WL 996906 [2012] ). Once a failure to maintain contact is established by clear and convincing evidence, the burden shifts to "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" ( Matter of Jackie B. [Dennis B.], 75 A.D.3d 692, 693, 903 N.Y.S.2d 612 [2010] ; see Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d at 1050, 981 N.Y.S.2d 177 ).
The testimony presented by petitioner established that, during the relevant six-month period (May 1, 2016 through October 31, 2016), respondent visited with the children during a birthday party on May 1, 2016, spoke with at least one of the children by telephone in June 2016 and sent a letter to the foster parents sometime in October 2016. Although respondent was incarcerated for most of the six-month period, the evidence revealed that he did not actively pursue visits with the children during his incarceration or send them any cards, letters or gifts. The evidence additionally demonstrated that, aside from the one-minute phone call in June 2016, respondent did not call the children or the foster parents. Further, petitioner's caseworker, as well as the family specialists assigned to the case by Berkshire Farm Center and Services for Youth, testified that respondent did not contact them at all during the relevant six months. The foregoing proof constituted clear and convincing evidence that respondent failed to maintain contact with the children and/or petitioner during the statutory period (see Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1190, 51 N.Y.S.3d 240 ; Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d at 1051, 981 N.Y.S.2d 177 ). The minimal contact between respondent and the children during the relevant six months was too infrequent, sporadic and insubstantial to defeat petitioner's showing of abandonment (see Matter of Colby II. [Chalmers JJ.], 140 A.D.3d 1484, 1485, 34 N.Y.S.3d 522 [2016] ; Matter of Ryan Q. [Eric Q.], 90 A.D.3d at 1264, 935 N.Y.S.2d 179 ).
For his part, respondent failed to demonstrate that his incarceration made contact with his children or petitioner infeasible or that he was otherwise discouraged or prevented from maintaining sufficient contact with the children (see Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d at 1051, 981 N.Y.S.2d 177 ; Matter of Arianna SS., 275 A.D.2d 498, 499, 711 N.Y.S.2d 622 [2000] ; Matter of Shannon QQ., 262 A.D.2d 679, 680, 690 N.Y.S.2d 788 [1999] ). Respondent testified that he could not call the children because the foster parents did not have money on an account to accept his calls. However, respondent conceded that he did not contact petitioner or the foster parents to ask that money be put on an account or to otherwise seek assistance with facilitating phone calls between him and the children. By respondent's own testimony, his efforts to arrange phone calls with the children were limited to once asking the paternal grandmother to speak with the foster father about it. Additionally, although respondent stated that he had difficulty reading and writing, the evidence revealed that respondent had been able to successfully compose a substantial letter to the foster parents with the assistance of facility staff. Respondent did not offer any persuasive explanation as to why he could not have similarly composed letters or cards to the children during the six-month period.
Finally, respondent claimed that the family specialists discouraged contact with the children by raising the possibility of judicially surrendering his parental rights. Although the family specialists acknowledged that they discussed this possibility with respondent during a service plan review in May 2016, they testified that the permanency plan at that time was return to parent, that they discussed all potential options with respondent and that they had discussed the possibility of a judicial surrender because of the length of time that the children had been in foster care and respondent's incarceration. Under these circumstances, "petitioner cannot be faulted for attempting to pursue a permanency plan that would afford the child[ren] some measure of stability" ( Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1191, 51 N.Y.S.3d 240 ). As respondent failed to rebut petitioner's showing of abandonment, there is no basis upon which to disturb Family Court's order (see Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1191, 51 N.Y.S.3d 240 ; Matter of Colby II. [Chalmers JJ.], 140 A.D.3d at 1485–1486, 34 N.Y.S.3d 522 ; Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d at 1051, 981 N.Y.S.2d 177 ).
Garry, P.J., Mulvey and Pritzker, JJ., concur. ORDERED that the order is affirmed, without costs.