| Matter of Anthony I. |
| 2009 NY Slip Op 03436 [61 AD3d 1320] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony I., a Child Alleged to be Abandoned.Albany County Department for Children, Youth and Families, Respondent; D'Shawn I.,Appellant. |
—[*1] Carly Mousseau, Albany County Department for Children, Youth and Families, Albany, forrespondent. Charles J. Keegan, Law Guardian, Albany.
Spain, J. Appeal from an order of the Family Court of Albany County (Maney, J.), enteredJuly 11, 2008, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate Anthony I. an abandoned child, and terminated respondent'sparental rights.
In March 2008, petitioner commenced this proceeding to terminate respondent's parentalrights to his son (born in 2007) who has been in petitioner's custody since his birth. At the timeof the May 2008 fact-finding hearing, respondent had been incarcerated at the Albany Countyjail since August 2007. Following the hearing, Family Court sustained the petition, adjudged thechild to be abandoned and terminated respondent's parental rights. Respondent now appeals andwe affirm.
Family Court may terminate a parent's rights to his or her child if the petitioner [*2]establishes through clear and convincing evidence that the parentabandoned the child for six months prior to the filing of the termination petition (seeSocial Services Law § 384-b [4] [b]; [5] [a]; Matter of Annette B., 4 NY3d 509, 513 [2005]; Matter of Jacob WW., 56 AD3d995, 997 [2008]; Matter of TiffanyRR., 44 AD3d 1126, 1127 [2007], lv denied 9 NY3d 819 [2008]; Matter of Cheyenne S., 20 AD3d748, 748-749 [2005]). A parent is deemed to have abandoned a child if he or she "evinces anintent to forego his or her parental rights and obligations as manifested by his or her failure tovisit the child and communicate with the child or agency, although able to do so and notprevented or discouraged from doing so by the agency" (Social Services Law § 384-b [5][a]; see Matter of Isaiah F., 55AD3d 1012, 1013 [2008], lv denied 11 NY3d 716 [2009]; Matter of PasqualeU., 279 AD2d 906, 907 [2001]). Incarcerated parents have a responsibility to communicatewith their children and, unless there is evidence to the contrary, they are "presumed able" to doso (Matter of Annette B., 4 NY3d at 514; see Matter of Nevaha J., 56 AD3d 989, 991 [2008], lvdenied 11 NY3d 716 [2009]; Matter of Alkreen J., 288 AD2d 785, 786 [2001]). Aparent may rebut this presumption by showing "an inability to maintain contact or that petitionerdiscouraged or prevented [him or her] from doing so" (Matter of Kerrianne AA., 1 AD3d 835, 836 [2003], lvdenied 1 NY3d 507 [2004]).
At the fact-finding hearing, two witnesses testified for petitioner. Patricia Mantey, asupervisor for petitioner, testified that prior to his incarceration, respondent attended weeklyvisits with his son. After respondent was incarcerated, Mantey sent him two letters containingher contact information, but respondent never wrote or called her about the child or sent heranything for the child. Further, from the time he was first incarcerated until the time of thehearing, respondent had no contact with the child. Also called as a witness was John Gombel, acaseworker for the childcare agency that supervised visits between respondent and his son beforerespondent was incarcerated. Gombel testified that he sent respondent a letter informing him thathe could have biweekly visits with the child during his incarceration, but that respondent neverreplied or contacted him about the child or sent him anything for the child, and that he never didanything to prevent or discourage respondent from visiting. This testimony satisfied petitioner'sburden of proving respondent's lack of contact and intent to forgo his parental rights, shifting theburden to respondent to demonstrate that he had maintained sufficient contact or that he wasunable to maintain such contact or that petitioner impeded his doing so (see Matter of PeterF., 281 AD2d 821, 823 [2001]). This respondent failed to do.
Respondent testified and admitted to receiving the letters, but claimed that he wrote letters toMantey without receiving responses. He also testified that each time he received a letter, heattempted to phone Mantey and Gombel regarding contact and visitation with his son, but theirphone numbers were "collect call restricted," so he could not get through because he could onlymake collect calls from the jail. By contrast, Mantey had testified that her telephone number wasnot collect call restricted and that, in the letters she sent to respondent, she informed him that hecould call her collect. Family Court rationally found that petitioner and the childcare agency didnot, contrary to respondent's assertions, prevent or discourage him from interacting with his sonand that he had abandoned his child for the statutory six-month period from the time he wasincarcerated in August 2007 until the time the termination application was filed in March 2008(see Matter of Annette B., 4 NY3d at 511; Matter of Erika G., 289 AD2d 803,804 [2001]). The conflicting testimony between the caseworkers and respondent raisedcredibility issues that Family Court was in the best position to assess, and its factual findings areentitled to considerable deference (see Matter of Peter F., 281 AD2d at 824; Matterof Russo v Russo, 257 AD2d 926, 927 [1999]). Accordingly, we find that the record beforeus amply supports Family Court's determination.[*3]
Mercure, J.P., Kavanagh, Stein and McCarthy, JJ.,concur. Ordered that the order is affirmed, without costs.