| Matter of Tiffany RR. |
| 2007 NY Slip Op 07790 [44 AD3d 1126] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Tiffany RR., a Child Alleged to be Abandoned.Saratoga County Department of Social Services, Respondent; Paul RR.,Appellant. |
—[*1] Mark M. Rider, County Attorney, Ballston Spa (Paul Pelagalli of counsel), for respondent. Amy J. Knussman, Law Guardian, Ballston Spa.
Carpinello, J. Appeal from an order of the Family Court of Saratoga County (Abramson, J.),entered October 25, 2006, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate Tiffany RR. an abandoned child, andterminated respondent's parental rights.
Respondent (hereafter the father) is the parent of a girl born in 2004. When the child was onemonth old, she suffered from a fracture to her arm while in the father's care. As a result of thisincident, the child was adjudicated to be an abused child and placed in petitioner's care andcustody. An order of protection was entered barring the father from having any contact with heruntil she reached 18 years of age. The order permitted the father to apply for a modification of itafter 2½ years and upon successful completion of anger management and parenting classes.As a result of the incident, the father pleaded guilty, pursuant to an Alford plea, toattempted assault with an agreed-upon sentence of 1 to 3 years in prison. He was sentenced onMay 3, [*2]2005. In June 2006, petitioner commenced thisproceeding to terminate his parental rights on the ground of abandonment. Following a hearing,the petition was granted, prompting this appeal.
Family Court properly terminated the father's parental rights on the ground of abandonment.A finding of abandonment is appropriate when there is clear and convincing evidence that aparent evinces an intent to forego his or her parental rights during the six-month period prior tothe filing date of the petition by failure to visit or communicate with the child or the agency thathas custody of the child, although able to do so and not prevented or discouraged from doing soby that agency (see Social Services Law § 384-b [3] [g]; [4] [b]; [5] [a]; Matter of Cheyenne S., 20 AD3d748, 749 [2005]). While the father was prohibited from contacting his daughter during therelevant six-month period based on the order of protection, the order did not prohibit him fromcontacting petitioner, and his incarceration was no excuse for failing to do so (see Matter ofCheyenne S., 120 AD3d at 749; Matter of Oscar L., 8 AD3d 569 [2004]; Matter of T.Children, 284 AD2d 401 [2001]; Matter of Ronald D., 282 AD2d 533 [2001];Matter of Orange County Dept. of Social Servs. [Diane A.], 203 AD2d 367 [1994]).
There is no dispute that the father made no attempt to contact petitioner, or the foster careagency in charge of the child's placement, during the relevant time period. Rather, the only twocontacts during this period were initiated by petitioner's caseworker. "This lack of contactevinces his intent to forego his parental rights" (Matter of Gabrielle HH., 1 NY3d 549, 550 [2003] [citationomitted]). While the father testified that he did not contact petitioner because he believed theorder of protection prohibited it,[FN*]he readily admitted that he read the order and agreed that it did not expressly prohibit him fromhaving contact with petitioner. In our view, the order itself—which simply states that thefather "shall be barred from any and all contact with the child"—is narrow andunambiguous (compare Matter of Gabrielle HH., 306 AD2d 571 [2003], affd 1NY3d 549 [2003]) and did not relieve the father of his clear obligation to contact petitioner aboutthe child. To this end, we note that the father readily acknowledged that, despite his claimedunderstanding of the order (see n, supra), he did in fact make inquiries about the child,albeit to his mother. Under these circumstances, we will not disturb Family Court's finding ofabandonment.
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: In particular, the father claimedthat the order of protection forbade him from "know[ing] anything about [his daughter] until shewas 18 years of age or such time where [he] could remodify [sic] it."