Opinion
2015-05-01
In the Matter of LUNDYN S. Cayuga County Department of Health and Human Services, Petitioner–Respondent; Al–Rahim S., Respondent–Appellant.
Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Van Buskirk of Counsel), for Respondent–Appellant. Frederick R. Westphal, County Attorney, Auburn (Daniel A. Testa, III, of Counsel), for Petitioner–Respondent.
Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Van Buskirk of Counsel), for Respondent–Appellant.Frederick R. Westphal, County Attorney, Auburn (Daniel A. Testa, III, of Counsel), for Petitioner–Respondent.
Michele R. Driscoll, Attorney for the Child, Auburn.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
In this proceeding pursuant to Social Services Law § 384–b, respondent father appeals from an order that, inter alia, terminated his parental rights and placed the subject child in the custody of petitioner. Contrary to the father's contention, petitioner established by clear and convincing evidence that he “abandoned [the subject] child for the period of six months immediately prior to the date on which the petition [was] filed” (§ 384–b[4][b]; see Matter of Annette B., 4 N.Y.3d 509, 514, 796 N.Y.S.2d 569, 829 N.E.2d 661, rearg. denied5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663), and it is well settled that “ [t]his lack of contact evinces his intent to forego his parental rights” (Matter of Gabrielle HH., 1 N.Y.3d 549, 550, 772 N.Y.S.2d 643, 804 N.E.2d 964; see§ 384–b[5][a] ). Even assuming, arguendo, that the father is correct that he visited the child once within a few days after the six-month period commenced, we conclude that such “insubstantial contact[ was] insufficient to defeat the claim of abandonment” (Matter of Jamal B. [Johnny B.], 95 A.D.3d 1614, 1615–1616, 945 N.Y.S.2d 472, lv. denied19 N.Y.3d 812, 2012 WL 4017424; see Matter of Carter A. [Jason A.], 111 A.D.3d 1181, 1182–1183, 977 N.Y.S.2d 415, lv. denied22 N.Y.3d 862, 2014 WL 642707).
We reject the father's further contention that petitioner discouraged contact between the father and the subject child. Initially, we note that the father correctly concedes that, in this abandonment proceeding, petitioner “was not ‘obligated to contact [the father] and initiate efforts to encourage his parental relationship with [his child]’ ” (Matter of Alexander B., 277 A.D.2d 937, 937, 716 N.Y.S.2d 253; seeSocial Services Law § 384–b [5] [b]; Gabrielle HH., 1 N.Y.3d at 550, 772 N.Y.S.2d 643, 804 N.E.2d 964). Furthermore, the father failed to establish “that he was unable to maintain contact with his [child], or that he was prevented or discouraged from doing so by petitioner” (Matter of Christina S., 251 A.D.2d 982, 982, 674 N.Y.S.2d 550; see Matter of Jackie B. [Dennis B.], 75 A.D.3d 692, 693, 903 N.Y.S.2d 612; Matter of Regina A., 43 A.D.3d 725, 725, 843 N.Y.S.2d 207). The father's contention that he attempted to communicate with certain of petitioner's representatives who were not called as witnesses at the hearing raised only a credibility issue that Family Court was entitled to resolve against him ( see Matter of Noah G. [Anthony G.], 118 A.D.3d 1355, 1355, 987 N.Y.S.2d 748; Matter of Rakim D.D.S., 50 A.D.3d 1521, 1522, 856 N.Y.S.2d 754, lv. denied10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863).
We also reject the father's contention that the court erred in denying his request to award custody of the subject child to the child's paternal grandmother, instead awarding custody to petitioner so that the child may be adopted by her foster parents. It is well settled that, in the context of a dispositional hearing after the termination of parental rights, “[a] nonparent relative of the child does not have ‘a greater right to custody’ than the child's foster parents” (Matter of Matthew E. v. Erie County Dept. of Social Servs., 41 A.D.3d 1240, 1241, 839 N.Y.S.2d 871). Furthermore, contrary to the father's contention, the child's “blood relative does not take precedence over a prospective adoptive parent selected by [petitioner], and the fact that [the child's grandmother] would be a good caretaker is not a sufficient reason to remove the child from the only home she has ever known and from a family with whom she had bonded” (Matter of Tiffany Malika B., 215 A.D.2d 200, 201, 626 N.Y.S.2d 184, lv. denied86 N.Y.2d 707, 632 N.Y.S.2d 501, 656 N.E.2d 600). Thus, we agree with petitioner and the Attorney for the Child that it is in the child's best interests to award custody to petitioner ( see Matter of Donald W., 17 A.D.3d 728, 729–730, 793 N.Y.S.2d 217, lv. denied5 N.Y.3d 705, 801 N.Y.S.2d 251, 834 N.E.2d 1261; see generally Matthew E., 41 A.D.3d at 1241–1242, 839 N.Y.S.2d 871).
We have considered the father's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.