| Matter of Xionia VV. (Amos VV.) |
| 2010 NY Slip Op 08667 [78 AD3d 1452] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Xionia VV., a Child Alleged to be PermanentlyNeglected. Chemung County Department of Social Services, Respondent; Amos VV.,Appellant. |
—[*1] David A. Kagle, Chemung County Department of Law, Family Court Division, Elmira, forrespondent. Pamela B. Bleiwas, Ithaca, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.), enteredFebruary 1, 2010, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate the subject child to be permanently neglected, and terminatedrespondent's parental rights.
Respondent, the incarcerated father of a daughter born in 1996 (hereinafter the child), wasimprisoned when the child was six months old and has remained in prison for most of her life, except forbrief periods of release in 2001 and 2008. The child was removed from her mother's care in 2001 andplaced first in a foster home and then with a relative. In 2002, the child returned to the foster home,where she has remained and flourished. The mother consented to a finding of neglect in 2002 andsurrendered her parental rights in 2007. Several of the child's half siblings, with whom the child has aclose relationship, also reside with the foster parents. At [*2]the time ofthese proceedings, the foster parents hoped to adopt the child.[FN*]
Petitioner commenced this proceeding in February 2009. Family Court conducted a fact-findinghearing, determined that respondent had failed to plan for the child's future (see Social ServicesLaw § 384-b [7] [a]), and adjudicated the child to be permanently neglected. After adispositional hearing, the court awarded guardianship and custody of the child to petitioner and freedher for adoption. Respondent now appeals, and we affirm.
Respondent's sole contention on appeal, relying upon authority from the Appellate Division, FourthDepartment, is that Family Court should have awarded him posttermination visitation with the child. Heargues that psychological harm to the child may result from abruptly cutting off all contact between them(see Matter of Kahlil S., 35 AD3d1164, 1165 [2006], lv dismissed 8 NY3d 977 [2007]). However, the record reveals thatthe relationship between respondent and the child is, at best, attenuated. Respondent has seen the childonly once or twice since she was six months old. He petitioned for visitation for the first time in 2006and obtained an order permitting mail and telephone contact. Since then, he has written letters to thechild from prison, spoken to her once by telephone, and sent her a package of gifts in 2008. He did notpetition for in-person visitation during his most recent period of freedom, and made no formal requestfor posttermination visitation during the neglect proceedings. Even had such a request been made,Family Court had no authority to grant it in this adversarial proceeding (see Matter of Raine QQ., 51 AD3d1106, 1107 [2008], lv denied 10 NY3d 717 [2008]; Matter of Melissa DD., 45 AD3d 1219, 1221-1222 [2007], lvdenied 10 NY3d 701 [2008]; Matter ofJames X., 37 AD3d 1003, 1007 [2007]).
Notably, respondent is not necessarily prohibited by this order from maintaining contact with thechild. The foster mother, who is now the child's adoptive mother, testified that she would encourage thechild's continued contact with respondent. The adoptive parents may permit such contact in the futureas they find benefits the child (see Matter ofWilliam W., 23 AD3d 735, 736 [2005]).
Cardona, P.J., Mercure, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The adoption became final while thisappeal was pending.