| Matter of Carter A. (Jason A.) |
| 2013 NY Slip Op 07891 [111 AD3d 1181] |
| November 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Carter A., a Child Alleged to beAbandoned. Cortland County Department of Social Services, Respondent; Jason A.,Appellant. |
—[*1] Ingrid Olsen-Tjensvold, Cortland County Department of Social Services, Cortland,for respondent. Donna C. Chin, Ithaca, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Cortland County (Campbell,J.), entered October 12, 2012, which granted petitioner's application, in a proceedingpursuant to Social Services Law § 384-b, to adjudicate Carter A. to be anabandoned child, and terminated respondent's parental rights.
Respondent is the father of a child (born in 2011). In October 2011, the child wasremoved from the custody of respondent and the child's mother, and neglect proceedingswere filed against both parents. The child lived with relatives until January 2012, whenhe was placed in petitioner's custody, and he has since resided in foster care. In April2012, upon respondent's default, Family Court issued an order finding that he hadneglected the child. In June 2012, petitioner commenced this abandonment proceedingagainst him. Following a dispositional hearing in the neglect proceeding, Family Courtdirected that the child remain in petitioner's custody and ordered petitioner to providerespondent—who had been incarcerated in May 2012—with supervisedvisitation upon his written request. In September 2012, Family Court conducted [*2]a combined fact-finding and dispositional hearing in theabandonment proceeding, determined that respondent had abandoned the child, andterminated his parental rights. Respondent appeals.
We agree with Family Court that petitioner demonstrated by clear and convincingevidence that, during the six-month period immediately before the abandonment petitionwas filed, respondent "evince[d] an intent to forego his . . . parental rightsand obligations as manifested by his . . . failure to visit the child andcommunicate with the child or [petitioner], although able to do so and not prevented ordiscouraged from doing so by [petitioner]" (Social Services Law § 384-b [5] [a];see Matter of Maria E.[Jermaine D.], 94 AD3d 1357, 1357-1358 [2012]). Respondent's ability tomaintain contact with the child was presumed, even after he was incarcerated (see Matter of Ryan Q. [EricQ.], 90 AD3d 1263, 1264 [2011], lv denied 18 NY3d 809 [2012]; Matter of Jamaica M. [HakeemN.], 90 AD3d 1105, 1106 [2011], lv denied 18 NY3d 806 [2012]).Petitioner's witnesses testified that, when the six-month period began, respondent wasscheduled to visit the child once each week, but that he did so only twice in December2011, and never thereafter. During January 2012, he failed to respond to severalmessages from petitioner's caseworkers about the missed visits. A caseworker visited hishome and was then advised that respondent had been arrested; he did not respond to hersubsequent communications. Later in January 2012, the caseworker visited his homeagain and, this time, met respondent, who stated that he planned to attend a scheduledvisit later that day. He did not appear for the visit, nor answer the caseworker'ssubsequent letters and messages. In April 2012, at an unrelated court appearance,respondent told petitioner's supervising caseworker that he had not visited the childbecause he believed that his parental rights had already been terminated. The supervisorexplained that this was not the case and offered to schedule a visit that wouldaccommodate respondent's work schedule. Respondent did not follow up, and did notanswer the supervisor's subsequent messages. He did not send any letters, gifts or cardsto the child at any time. Petitioner's workers testified that, except when respondent wasincarcerated, they were often unable to find him, as he did not keep them informed ofseveral changes in his address during the pertinent time period.
Respondent's two visits with the child in December 2011 do not preclude a findingof abandonment. They amount to nothing more than "sporadic and infrequent,insubstantial contacts," and both were initiated by petitioner (Matter of Jamal B. [JohnnyB.], 95 AD3d 1614, 1615-1616 [2012], lv denied 19 NY3d 812 [2012];see Matter of Jacob WW.,56 AD3d 995, 997 [2008]). Petitioner's caseworkers testified that he never contactedthem; Family Court refused to credit respondent's testimony that he attempted to do so,and we defer to this assessment (see Matter of Leon CC. [Larry CC.], 86 AD3d 764, 766[2011], lv denied 17 NY3d 714 [2011]). The burden thus shifted to respondent todemonstrate that he was unable to maintain contact with the child or was prevented ordiscouraged from doing so (seeMatter of Jackie B. [Dennis B.], 75 AD3d 692, 693 [2010]), and he failed tosatisfy this burden. The record does not support respondent's testimony that orders ofprotection discouraged him from visiting the child, but instead demonstrates thatpetitioner repeatedly sought to encourage him to do so. The requirement to requestvisitation in writing was a "reasonable precondition" given respondent's ongoing failureto visit or contact the child (Matter of Alec B., 34 AD3d 1110, 1111 [2006]) and, inany event, was not instituted until after the six-month period expired. Accordingly,Family Court properly found that respondent had abandoned the child.
Even assuming that the issue of whether a suspended judgment was appropriate hadbeen appropriately preserved for our review (see Matter of Chase F. [MichaelG.], 91 AD3d [*3]1057, 1058-1059 [2012], lvdenied 19 NY3d 801 [2012]),[FN*]respondent failed to demonstrate that he had taken any actions to remedy the problemsthat led to the abandonment finding, nor did the record otherwise indicate that asuspended judgment would be in the child's best interests (see Matter of Alexa L. [NilzaL.], 79 AD3d 1290, 1293 [2010]; Matter of "Male" M., 18 AD3d 215, 215-216 [2005]). Wefurther note that between the filing of the abandonment petition and the hearing date,respondent made no requests for visits with the child.
We find unpreserved respondent's contentions that the petition was defective infailing to specify the precise date on which the six-month statutory period began andpremature in that less than six months had elapsed between respondent's last visit inDecember 2011 and the commencement of the proceeding in June 2012, as these issuesare being raised for the first time on appeal (see Matter of Jennie EE., 187 AD2d877, 877-878 [1992], lv denied 81 NY2d 706 [1993]). We further reject hisrelated claim that he was deprived of meaningful representation by his counsel's failureto seek dismissal of the petition on these grounds. "Counsel cannot be deemedineffective for failing to make a motion . . . that is unlikely to be successful"(Matter of Jamaal NN., 61AD3d 1056, 1058 [2009], lv denied 12 NY3d 711 [2009] [citationomitted]). The allegations in the petition met the statutory requirements (seeSocial Services Law § 384-b [4] [b]), and respondent's visits in December 2011neither precluded a finding of abandonment—as previously noted—norrequired recalculation of the statutory time period. As a motion for dismissal would likelyhave failed, respondent did not show that his counsel was ineffective (see Matter ofRichard W., 226 AD2d 941, 942 [1996], lv denied 88 NY2d 808 [1996]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The attorney for thechild suggested that a suspended judgment might be appropriate; respondent's counselmade no direct request for such relief, stating only that respondent needed "more time" todemonstrate his commitment to the child.