| Matter of Jackie B. (Dennis B.) |
| 2010 NY Slip Op 05830 [75 AD3d 692] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jackie B., a Child Alleged to be Abandoned.Albany County Department for Children, Youth and Families, Respondent; Dennis B.,Appellant. |
—[*1] Jeffrey G. Kennedy, Albany County Department for Children, Youth and Families, Albany,for respondent. William V. O'Leary, Albany, attorney for the child.
Peters, J. Appeal from an order of the Family Court of Albany County (M. Walsh, J.),entered August 25, 2009, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate Jackie B. an abandoned child, and terminatedrespondent's parental rights.
Respondent's son was born in March 2007 and placed in foster care in May 2007, where hehas remained. Petitioner commenced this proceeding in May 2009 seeking to terminaterespondent's parental rights on the ground of abandonment. Following fact-finding anddispositional hearing, Family Court found that respondent had abandoned the child andterminated his parental rights. Respondent appeals, and we affirm.[*2]
To warrant a finding of abandonment, petitioner mustestablish, by clear and convincing evidence, that during the six-month period immediately priorto the filing of the petition, the parent "evinces an intent to forego his or her parental rights andobligations as manifested by his or her failure to visit the child and communicate with the childor 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 Michaela PP. [Derwood PP.], 72 AD3d 1430, 1430[2010]; Matter of Anthony I., 61AD3d 1320, 1321 [2009]; Matter of Peter F., 281 AD2d 821, 822-823 [2001]). Aparent's ability to visit and/or communicate with his or her child is presumed (see SocialServices Law § 384-b [5] [a]; Matter of Leala T., 55 AD3d 1007, 1008 [2008]), and once afailure to do so is established, the burden is upon the parent to prove an inability to maintaincontact or that he or she was prevented or discouraged from doing so by the petitioning agency(see Matter of Kerrianne AA., 1AD3d 835, 836 [2003], lv denied 1 NY3d 507 [2004]; Matter of Peter F.,281 AD2d at 823).
Here, testimony of petitioner's caseworker and a social worker from the foster care agencyestablished that respondent did not contact petitioner or communicate with the child during therelevant period from November 2008 to May 2009, and that his last contact with the childoccurred in August 2008. The caseworker also testified that she sent a letter to respondent inDecember 2008 outlining his responsibilities while the child was in foster care, including hisresponsibility to maintain contact with his son and plan for the child's future, but received noresponse from respondent.
Respondent, while conceding that his last contact with the child was in August 2008,testified that he was incarcerated from August 2008 to April 2009 and believed that he wasprohibited from having any contact with his son while incarcerated. However, he provided noexplanation for the basis of this belief (see Matter of Omar RR., 270 AD2d 588, 589-590[2000]) and, in fact, acknowledged receiving the December 2008 letter advising him of hisobligation to maintain contact with his son. In any event, his incarceration did not otherwiserelieve him of the responsibility to communicate with petitioner (see Matter of Tiffany RR., 44 AD3d1126, 1127 [2007], lv denied 9 NY3d 819 [2008]; Matter of Gabrielle HH.,306 AD2d 571, 573 [2003], affd 1 NY3d 549 [2003]; Matter of Precious TreneeO., 253 AD2d 701 [1998]; see alsoMatter of Annette B., 4 NY3d 509, 513 [2005]).[FN*]Respondent testified that, after receiving the December 2008 letter, he attempted to call thecaseworker one time but his collect call was rejected, and that he called the caseworker andfoster agency numerous times upon his release from jail but his voice messages were notreturned. By contrast, both the caseworker and social worker testified that it was the agency'spolicy to accept collect calls and they would have accepted a collect call from respondent hadone been received. Further, respondent admitted to appearing in Family Court in December 2008and May 2009 and that the caseworker was present at those times, but incredibly did not attemptto speak with her or otherwise mention his purported inability to contact her (see Matter ofPeter F., 281 AD2d at 823-824). The conflicting testimony of petitioner's witnesses andrespondent presented credibility issues that Family Court rationally resolved against respondent,and those factual findings are entitled to considerable [*3]deference (see Matter of Michaela PP., 72 AD3d at 1431;Matter of Anthony I., 61 AD3d at 1322; Matter of Peter F., 281 AD2d at 824).Therefore, notwithstanding respondent's testimony that he never subjectively intended to give uphis parental rights (see Social Services Law § 384-b [5] [b]; Matter of JuliusP., 63 NY2d 477, 481 [1984]), the record amply supports Family Court's determination thatrespondent abandoned his son.
Finally, addressing Family Court's disposition, we find no basis upon which to disturb thedetermination to terminate respondent's parental rights. Following a finding of abandonment,Family Court's dispositional determination is governed by what is in the child's best interests(see Matter of Gladys B. v Albany County Dept. of Social Servs., 274 AD2d 689, 690[2000]; Matter of Crystal C., 219 AD2d 601, 602 [1995]; Matter of Anthony T.,208 AD2d 985, 986-987 [1994], lv denied 85 NY2d 801 [1995]; see generally Matterof Bennett v Jeffreys, 40 NY2d 543, 544 [1976]).
Respondent has a history of violent and assaultive behavior, which resulted in four periodsof incarceration between 2003 and 2008, and he candidly acknowledged that "[he] do[esn't]follow the law." He also admitted that he failed to complete domestic violence counseling anddropped out of a substance abuse treatment program. Prior to his most recent incarceration,respondent sought custody of the child, but his petition was dismissed due to his failure toappear. Notably, despite being offered weekly visitation, he visited with the child only 13 timesduring a 14-month period. Although he requested visitation during the pendency of thisproceeding, he missed the first scheduled visit. During the four supervised visits that respondentdid attend after his release from jail, the caseworker from the foster care agency observedrespondent's parenting skills to be limited and that the child had limited recognition of him.Additionally, respondent was found to be incapable of handling his own financial affairs and,notwithstanding the fact that he had previously criticized his mother's parenting ability topetitioner, respondent planned on continuing to live with her even if his parental rights were notterminated.
On the other hand, the evidence demonstrated that the foster parents are loving and devotedparents, one of whom put her career on hold to stay home with the child and assist in hisdevelopment, and the child was progressing very well in their care. Moreover, the child has nowresided and psychologically bonded with his foster family for nearly two years, and the fosterparents are willing to adopt him. In view of the testimony adduced in this matter, Family Courtproperly determined that it was in the child's best interests that respondent's parental rights beterminated and the child be freed for adoption (see Matter of Deborah I., 6 AD3d 771, 774 [2004]; Matter ofCrystal C., 219 AD2d at 602; seealso Matter of Alijah XX., 19 AD3d 770, 772 [2005]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Although respondent claimed tohave written a letter to the biological mother in early 2009 expressing his desire to see his son,he acknowledged his awareness that the mother did not have custody at that time (see Matter of Nevaha J., 56 AD3d989, 991 [2008], lv denied 11 NY3d 716 [2009]; Matter of Alkreen J., 288AD2d 785, 786 [2001]).