Opinion
1291 CAF 18–00964
02-07-2020
In the MATTER OF ANTHONY J.A. Genesee County Department of Social Services, Petitioner–Respondent; v. Jason A.A., Sr., Respondent–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT–APPELLANT. CATHERINE J. PALERMO, BATAVIA, FOR PETITIONER–RESPONDENT. DAVID J. PAJAK, ALDEN, ATTORNEY FOR THE CHILD.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT–APPELLANT.
CATHERINE J. PALERMO, BATAVIA, FOR PETITIONER–RESPONDENT.
DAVID J. PAJAK, ALDEN, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order that, inter alia, terminated his parental rights on the ground of abandonment. Contrary to the contention of the father, petitioner established by the requisite clear and convincing evidence that the father abandoned the subject child (see Social Services Law § 384–b [4][b] ; [5][a]; see generally Matter of Anthony C.S. [Joshua S.], 126 A.D.3d 1396, 1396–1397, 5 N.Y.S.3d 658 [4th Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3892289 [2015] ). Although the father was incarcerated during the six months preceding the filing of the abandonment petition and was subject to an order of protection that precluded him from direct contact with the child, a "parent who has been prohibited from direct contact with the child, in the child's best interest[s], continues to have an obligation to maintain contact with the person having legal custody of the child" ( Matter of Lucas B., 60 A.D.3d 1352, 1352, 876 N.Y.S.2d 255 [4th Dept. 2009] [internal quotation marks omitted]; see generally Matter of Miranda J. [Jeromy J.], 118 A.D.3d 1469, 1470, 988 N.Y.S.2d 379 [4th Dept. 2014] ), in this case petitioner. Here, petitioner's caseworker testified that, although she provided the father with her contact information, sent the father regular updates regarding the child, and informed the father that he needed to plan for the child's future, she received only one letter from the father during the relevant period. That contact with petitioner "was insubstantial and thus does not preclude the finding of abandonment" ( Matter of Crystal M., 49 A.D.3d 1312, 1313, 856 N.Y.S.2d 376 [4th Dept. 2008] [internal quotation marks omitted]; see Matter of Rakim D.D.S., 50 A.D.3d 1521, 1522, 856 N.Y.S.2d 754 [4th Dept. 2008], lv denied 10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863 [2008] ; Matter of Tonasia K., 49 A.D.3d 1247, 1248, 852 N.Y.S.2d 881 [4th Dept. 2008] ). Similarly, the father's "expressions of subjective intent to care for the child at a future time do not preclude a finding of abandonment" ( Matter of Jasmine J., 43 A.D.3d 1444, 1445, 844 N.Y.S.2d 533 [4th Dept. 2007] [internal quotation marks omitted] ). To the extent that the father asserted at the hearing that he sent additional letters to petitioner, that testimony presented an issue of credibility that Family Court was entitled to resolve against him (see Rakim D.D.S., 50 A.D.3d at 1522, 856 N.Y.S.2d 754 ; Jasmine J., 43 A.D.3d at 1445, 844 N.Y.S.2d 533 ).
We reject the father's contention that the court abused its discretion in denying his request, made on the day of the hearing, for an adjournment to substitute assigned counsel. "The right of an indigent party to assigned counsel under the Family Court Act is not absolute," and a party seeking the appointment of substitute counsel "must establish that good cause for release existed necessitating dismissal of assigned counsel" ( Matter of Destiny V. [Mark V.], 107 A.D.3d 1468, 1469, 965 N.Y.S.2d 904 [4th Dept. 2013] ; see generally Matter of Biskupski v. McClellan, 278 A.D.2d 912, 912, 718 N.Y.S.2d 772 [4th Dept. 2000] ). The father failed to make that showing here. The court likewise did not abuse its discretion in failing to adjourn the hearing to permit the father's counsel to conduct further meetings with the father in preparation for the hearing (see generally Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] ; Matter of Michael S. [Brittany R.], 159 A.D.3d 1502, 1503, 72 N.Y.S.3d 315 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2922240 [2018] ).
Finally, contrary to the father's contention, the record establishes that, "viewed in the totality of the proceedings, [the father] received meaningful representation" ( Michael S., 159 A.D.3d at 1504, 72 N.Y.S.3d 315 [internal quotation marks omitted] ).