Opinion
2011-12-1
In the Matter of JAMAICA M. and Another, Alleged to be Abandoned Children.Schenectady County Department of Social Services, Respondent;Hakeem N., Appellant.
Bruce E. Knoll, Albany, for appellant. Jennifer M. Barnes, Deputy County Attorney, Schenectady, for respondent.
Bruce E. Knoll, Albany, for appellant. Jennifer M. Barnes, Deputy County Attorney, Schenectady, for respondent. Linda A. Berkowitz, Saratoga Springs, attorney for the children.
Before: MERCURE, J.P., PETERS, MALONE JR., KAVANAGH and STEIN, JJ.
PETERS, J.
Appeal from an order of the Family Court of Schenectady County (Powers, J.), entered October 14, 2010, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate respondent's children to be abandoned.
Respondent is the father of a son and a daughter (born in 2002 and 2009, respectively). In July 2009, the children were removed from their mother's care and placed in petitioner's custody, where they have remained. Respondent sporadically visited the children while they were in foster care until November 2009, when he informed the family specialist from the foster care agency that he was going into a “mandatory program” and would not be able to visit the children. In May 2010, petitioner commenced this proceeding seeking to terminate respondent's parental rights on the ground of abandonment. After a fact-finding hearing, Family Court found that respondent, who had been incarcerated since December 11, 2009, had abandoned the children. Following a dispositional hearing, respondent's parental rights were terminated and the children were freed for adoption. This appeal ensued.
The petition also alleged abandonment by the mother, who thereafter failed to appear at any point in the proceeding. Family Court ultimately found that she had abandoned the children and terminated her parental rights.
Respondent filed an appeal from only the fact-finding order, which is not appealable as of right ( see Family Ct. Act § 1112[a]; Matter of Jason FF., 224 A.D.2d 900, 900, 638 N.Y.S.2d 226 [1996] ). We will, however, treat the notice of appeal as an application for leave to appeal and grant the application ( see Matter of Lamar LL. [Loreal MM.], 86 A.D.3d 680, 680 n. 1, 927 N.Y.S.2d 185 [2011], lv. denied 17 N.Y.3d 712, 2011 WL 4835732 [2011] ).
“A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the petition” ( Matter of Lamar LL. [Loreal MM.], 86 A.D.3d 680, 680, 927 N.Y.S.2d 185 [2011], lv. denied 17 N.Y.3d 712, 2011 WL 4835732 [2011] [citations omitted]; see Social Services Law § 384–b[4][b]; [5][a]; Matter of Annette B., 4 N.Y.3d 509, 513, 796 N.Y.S.2d 569, 829 N.E.2d 661 [2005]; Matter of Stephen UU. [Stephen VV.], 81 A.D.3d 1127, 1128, 916 N.Y.S.2d 673 [2011], lvs. denied 17 N.Y.3d 702, 929 N.Y.S.2d 93, 952 N.E.2d 1088 [2011] ). “Incarcerated parents have a responsibility to communicate with their children and, unless there is evidence to the contrary, they are presumed able to do so” ( Matter of Anthony I., 61 A.D.3d 1320, 1321, 877 N.Y.S.2d 520 [2009] [internal quotation marks and citations omitted]; see Matter of Annette B., 4 N.Y.3d at 513, 796 N.Y.S.2d 569, 829 N.E.2d 661; Matter of Le'Airra CC. [Christopher DD.], 79 A.D.3d 1203, 1204, 911 N.Y.S.2d 699 [2010], lv. denied 16 N.Y.3d 706, 2011 WL 652522 [2011] ).
Here, it is undisputed that respondent had no contact with his children or petitioner during the relevant six-month period, which ran from November 24, 2009 to May 24, 2010. Thus, it was respondent's burden to establish that, during this period, he was unable to maintain contact or prevented or discouraged from doing so by petitioner ( see Social Services Law § 384–b[5] [a]; Matter of Jackie B. [Dennis B.], 75 A.D.3d 692, 693, 903 N.Y.S.2d 612 [2010] ). This respondent failed to do. Although confined for the majority of the relevant time period, respondent conceded that he was able to make telephone calls and send letters and, in fact, contacted his sister during that time using both methods. Furthermore, petitioner's caseworker and the family specialist from the foster care agency both testified that they provided respondent with their contact information prior to his incarceration. While respondent testified that he did not know he could contact his children while in prison, he provided no basis for his belief in that regard ( see Matter of Jackie B. [Dennis B.], 75 A.D.3d at 693, 903 N.Y.S.2d 612) and, in any event, his incarceration did not relieve him of the obligation to communicate with petitioner or its representatives ( see Matter of Stephen UU. [Stephen VV.], 81 A.D.3d at 1129, 916 N.Y.S.2d 673; Matter of Le'Airra CC. [Christopher DD.], 79 A.D.3d at 1204, 911 N.Y.S.2d 699; Matter of Jackie B. [Dennis B.], 75 A.D.3d at 693, 903 N.Y.S.2d 612). Nor is there any evidence that petitioner or its caseworkers discouraged respondent from contacting the children. While respondent contends that petitioner made insufficient efforts to locate and contact him while he was incarcerated, petitioner was under no obligation in the context of this abandonment proceeding to undertake diligent efforts to encourage respondent to visit or communicate with the children ( see Social Services Law § 384–b[5][b]; Matter of Lamar LL. [Loreal MM.], 86 A.D.3d at 681, 927 N.Y.S.2d 185; Matter of Mahogany Z. [Wayne O.], 72 A.D.3d 1171, 1172–1173, 897 N.Y.S.2d 313 [2010], lv. denied 14 N.Y.3d 714, 2010 WL 2365850 [2010]; Matter of Devin XX., 20 A.D.3d 639, 640, 797 N.Y.S.2d 661 [2005] ). Accordingly, we find clear and convincing evidence supporting Family Court's determination that respondent abandoned the children.
Finally, inasmuch as respondent did not appeal from the dispositional order, his arguments relating to the propriety of Family Court's disposition are not properly before us ( see Matter of Rebecca KK., 40 A.D.3d 1195, 1196 n., 834 N.Y.S.2d 732 [2007], lv. denied 9 N.Y.3d 811, 846 N.Y.S.2d 601, 877 N.E.2d 651 [2007]; Matter of Erika G., 289 A.D.2d 803, 804, 734 N.Y.S.2d 351 [2001] ).
ORDERED that the order is affirmed, without costs.