| Matter of Jacob WW. |
| 2008 NY Slip Op 09137 [56 AD3d 995] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jacob WW. and Others, Children Alleged to beAbandoned. Schuyler County Department of Social Services, Respondent; Lucy WW.,Appellant. |
—[*1] Kristin E. Hazlitt, Schuyler County Department of Social Services, Watkins Glen, forrespondent. Daniel J. Fitzsimmons, Law Guardian, Watkins Glen.
Stein, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered January 8, 2008, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's children to be abandoned, andterminated respondent's parental rights.
Respondent is the mother of the three subject children (born in 1994, 1996 and 1999).Although respondent and the children's father shared joint custody, the children were placed withthe father and he was in charge of authorizing respondent's visits with them. In May 2006, thechildren's father voluntarily placed them in foster care due to his poor health. Before the childrenwere actually placed, Matthew Wolcott, the children's initial foster care worker, attempted tonotify respondent by letter of the impending placement. When Wolcott later became aware thatrespondent had expressed an interest in visitation with the children, he wrote to her again inSeptember 2006. Having received no response to that letter, Wolcott contacted respondent bytelephone and discussed arranging a meeting at her mother's home at her convenience to discuss[*2]the terms of visitation. Respondent never called back toschedule that meeting. Notwithstanding those and other attempts made by Wolcott and anothercaseworker to contact respondent in order to facilitate visitation between respondent and herchildren, respondent's only other contact with either caseworker took place at a separate courtproceeding on December 11, 2006 and at a prepermanency planning meeting on December 15,2006. At the latter meeting, respondent acknowledged to Wolcott that she had known that thechildren were in foster care since June 17, 2006 and indicated that she wanted them returned toher care. However, when she was advised that that was not currently a viable option and asked ifshe was interested in beginning visitation instead, respondent indicated that she was not sure.
Over the next several months, respondent's mother contacted the children's foster parentsdirectly and arranged for the children to attend three family gatherings—on Christmas in2006 and on Easter and Memorial Day in 2007—at which respondent was present.However, during these gatherings, each of which lasted for several hours, respondent'sinteraction with the children was perfunctory and almost exclusively consisted of brief greetingsand farewells that the children were encouraged by their foster parents to initiate. Respondentnever initiated or engaged in any other contact with the children from May 8, 2006 until thecommencement of this proceeding by petitioner in June 2007 to terminate respondent's parentalrights. Family Court found the children to be abandoned by respondent and terminatedrespondent's parental rights, prompting this appeal. We affirm.
A finding of abandonment will be upheld if there is clear and convincing evidence that theparent intended to forgo his or her parental rights and obligations (see Social ServicesLaw § 384-b [5] [a]; Matter ofDevin XX., 20 AD3d 639, 640 [2005]). Such an intent is manifested by a failure of theparent, in the six months prior to commencement of the proceeding, to visit the children andcommunicate with the children or agency having custody, despite the ability to do so and "if notprevented or discouraged from doing so by [the agency]" (Matter of Devin XX., 20 AD3dat 640 [internal quotation marks and citation omitted]; see Social Services Law §384-b [5] [a]). Absent contrary evidence, an ability to visit and communicate with the childrenwill be presumed (see Social Services Law § 384-b [5] [a]; Matter of ChantelleTT., 281 AD2d 660, 661 [2001]). Once the agency establishes a lack of visits andcommunication, the burden shifts to the parent to establish that he or she maintained sufficientcontact with the children or agency (seeMatter of Yvonne N., 16 AD3d 789, 790 [2005]). It has long been held that sporadic orunsubstantial contact is insufficient, particularly where the contact was initiated by a third partyrather than the parent (see Matter of Yvonne N., 16 AD3d at 790; Matter of ChantelleTT., 281 AD2d at 661; Matter of Candice K., 245 AD2d 821, 822 [1997]; Matterof Leabert V., 174 AD2d 883, 884 [1991]; Matter of Crawford, 153 AD2d 108, 112[1990]).[FN*]
Here, there was absolutely no evidence of any efforts made by respondent herself to visit orcommunicate with her children, nor did she personally initiate any communication withpetitioner or the foster parents for the requisite six-month period. In fact, although petitioner wasnot required to show that it made diligent efforts to encourage respondent to visit or [*3]communicate with her children (see Social Services Law§ 384-b [5] [b]; Matter of Devin XX., 20 AD3d at 640), petitioner and thechildren's foster parents did make efforts to facilitate visitation, to no avail. Under thesecircumstances, the minimal contact between respondent and the children initiated by respondent'smother does not constitute visitation. Nor was there any evidence to rebut the presumption ofrespondent's ability to visit and communicate with the children. In addition, inasmuch asrespondent failed to testify at the hearing, Family Court was entitled to draw the strongestinference that the opposing evidence permits against her (see Matter of Nassau County Dept.of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]). Based on all the evidence, includingevidence of the children's positive adjustment to their foster home and the desire of the fosterparents to adopt them, we find that Family Court properly determined that respondent abandonedthe children and terminated her parental rights.
Cardona, P.J., Spain, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: We are unpersuaded byrespondent's argument that the application of this principle should be limited to adoptionproceedings under Domestic Relations Law article 7, especially since Social Services Law§ 384-b (4) (b) expressly refers to Domestic Relations Law § 111.