| Matter of Jasper QQ. |
| 2009 NY Slip Op 05892 [64 AD3d 1017] |
| July 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jasper QQ. and Another, Children Alleged to beAbandoned. Columbia County Department of Social Services, Respondent; John QQ., Appellant.(And Another Related Proceeding.) |
—[*1] Benjamin Shaw, Columbia County Department of Social Services, Hudson (Alexander W.Bloomstein of Baldwin & Bloomstein, Hillsdale, of counsel), for respondent. Bethene Lindstedt-Simmons, Law Guardian, Chatham.
Lahtinen, J. Appeal from an order of the Family Court of Columbia County (Maney, J.),entered April 28, 2008, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate Anthony QQ. and Jasper QQ. to be abandonedchildren, and terminated respondent's parental rights.
Respondent is the father of Jasper QQ. (born in 1999) and Anthony QQ. (born in 2000).Since 2000, the children have been in petitioner's custody and resided in a foster home where thefoster parents desire to adopt them. The original derivative neglect proceeding arose fromrespondent assaulting and injuring his four-year-old stepdaughter, an act which resulted in hisplea of guilty in 2001 to assault in the second degree and endangering the welfare of a child. In2003, the mother of the children voluntarily surrendered her parental rights. After his releasefrom prison, respondent initially lived in the City of Syracuse, Onondaga County, but eventually[*2]moved to Arkansas in 2006. Petitioner commenced thisproceeding in November 2007 seeking to terminate respondent's parental rights on the ground ofabandonment, and also commenced at the same time a termination proceeding allegingpermanent neglect.
Family Court initially appointed counsel for respondent, despite the fact that heacknowledged annual income in excess of $37,000, well above the income level for entitlementto assigned counsel. Respondent reportedly did not cooperate with his assigned counsel,resulting in the granting of her motion to be relieved of the assignment. On March 3, 2008, uponreceiving updated financial information from respondent, Family Court did not make a newassignment because respondent was not eligible and notified him of such fact. The record reflectsthat he was informed, both by letter and verbally by Family Court, well in advance of thehearing, that the fact-finding hearing was scheduled for April 4, 2008, and that, if he wanted toappear electronically, he would have to file an appropriate application. He did not file such anapplication and he failed to appear on the scheduled hearing date. The children's Law Guardianwas present and Family Court proceeded with the hearing. After the evidence was presented,Family Court determined that respondent had abandoned and permanently neglected thechildren. Orders were entered terminating his parental rights and freeing the children foradoption. Respondent appeals.
We consider first respondent's contention that his due process rights were violated since thehearing was conducted in his absence. "While due process of law applies in [termination ofparental rights] proceedings and includes the right of a parent to be present at every stage of theproceedings, that right is not absolute" (Matter of Elizabeth T., 3 AD3d 751, 753 [2004] [citation omitted];see Matter of Juleeana ZZ., 37AD3d 995, 996 [2007], lv denied 8 NY3d 814 [2007]). During a conferenceconducted in Family Court in January 2008, at which his assigned attorney was present,respondent appeared via the telephone and acknowledged receipt of the petitions seeking toterminate his parental rights. He was informed on the record at that time by Family Court that thehearing was scheduled for April 4, 2008, at 9:30 a.m., at the Columbia County courthouse.Family Court further instructed respondent that he could appear in person or, if he wanted toappear electronically, he could file an application to do so. Respondent, who was not a strangerto Family Court proceedings, stated that he had no questions regarding these procedures.Thereafter, further notices were mailed to respondent in early March 2008, at the address he hadused at all relevant times, which again notified him of the April 4, 2008 trial date. He neitherfiled an application to appear by telephone nor appeared in person on the hearing date, nor did heretain an attorney to appear on his behalf. Since the record establishes that respondent was givenand acknowledged notice of the hearing, we find no error in Family Court's decision to proceedwith the hearing as scheduled despite respondent's failure to appear.
Respondent's challenge to the finding of permanent neglect does not appear to be properlybefore us since he did not file a notice of appeal from that order, which was denoted as acombined fact-finding, conclusions of law and dispositional order. In any event, the issue iswithout merit. Contrary to respondent's contention, the record reveals diligent efforts bypetitioner to encourage and strengthen the parental relationship (see Matter of Karina U.,299 AD2d 772, 772-773 [2002], lv denied 100 NY2d 501 [2003]). Here, among otherthings, petitioner consistently attempted to maintain contact with respondent via telephone andletters both before and after he moved to Arkansas. He was repeatedly made aware of andoffered a variety of relevant services. For a while, he was supplied full reimbursement forround-trip travel and all related expenses from Arkansas. Petitioner offered to assist him in thecost of returning to the area where the children resided. Petitioner scheduled regular visitation,notified [*3]respondent of the same and assured him that, uponhis return to New York, he would be helped in sundry ways, including with applying for publicassistance and in seeking employment. Mental health counseling and family counseling werealso offered. Petitioner established that it made repeated and meaningful efforts to encouragereunification (see Matter of WillardL., 23 AD3d 964, 964-965 [2005], lv denied 6 NY3d 708 [2006]).
Respondent also argues that petitioner failed to establish abandonment. We are unpersuaded.The record reflects that, among other things, respondent did not make any visits to the childrenduring the six-month period prior to commencement of the abandonment proceeding despitehaving a right to weekly visitation. During such time frame, he availed himself of other traveland vacations, but elected not to see his children. Although he occasionally communicated withthe children via telephone and e-mail, these communications—which were sporadic andresulted primarily in upsetting the children—were insufficient to defeat the finding ofabandonment under the circumstances of this case (see Matter of Yvonne N., 16 AD3d 789, 790 [2005]; Matter ofRichard X., 226 AD2d 762, 765 [1996], lv denied 88 NY2d 808 [1996]).
The remaining arguments have been considered and found unavailing.
Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.