| Matter of Gabriel D. (Andrea D.) |
| 2009 NY Slip Op 09583 [68 AD3d 1505] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gabriel D., Alleged to be an Abandoned Child.Broome County Department of Social Services, Respondent; Andrea D.,Appellant. |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. Michelle I. Rosien, Law Guardian, Philmont.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered May 4, 2009, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate Gabriel D. an abandoned child, and terminatedrespondent's parental rights.
Respondent is the mother of a son born in 2006. She was an acknowledged crack cocaineaddict and stated that her child was born addicted. He has been in a foster home his entire life. Inlate May 2008, petitioner commenced this proceeding seeking to terminate respondent's parentalrights upon the ground of abandonment. The caseworker, a foster parent and respondent testifiedat the hearing. Although conflicting proof was presented regarding respondent's efforts to contacteither petitioner or the child, Family Court credited the testimony of the caseworker and fosterparent in concluding that respondent's efforts were "trivial." The court granted the petition andfreed the child for adoption. Respondent appeals.[*2]
To terminate parental rights, petitioner must establish, byclear and convincing evidence, that the parent abandoned the child for the six-month periodpreceding the filing of the termination petition (see Social Services Law § 384-b[4] [b]; [5] [a]; Matter of Annette B., 4 NY3d 509, 513 [2005]; Matter of Baby GirlGG., 260 AD2d 956, 958 [1999], lv denied 93 NY2d 815 [1999]). "A parent isdeemed to have abandoned a child if he or she 'evinces an intent to forego his or her parentalrights and obligations as manifested by his or her failure to visit the child and communicate withthe child or agency, although able to do so and not prevented or discouraged from doing so bythe agency' " (Matter of Anthony I., 61 AD3d 1320, 1321 [2009], quoting SocialServices Law § 384-b [5] [a]). "[S]poradic or insubstantial contact is insufficient to defeata finding of abandonment" (Matter of Chantelle TT., 281 AD2d 660, 661 [2001]; seeMatter of Nahja I., 279 AD2d 666, 667 [2001]; Matter of Omar RR., 270 AD2d 588,590 [2000]).
Respondent did not visit the child during the relevant six-month period, which ran from lateNovember 2007 to when the petition was filed in late May 2008. The caseworker testified thatrespondent made two phone calls to her during that time. The first occurred on December 3,2007, when respondent called and indicated that she planned to leave the rehabilitation programwhere she was living. The caseworker related that she encouraged respondent to stay in theprogram so that visitation could occur at that location and respondent could progress towardpossibly reuniting with her child. Two days later, the caseworker received a voice mail messagefrom respondent stating that she had left the rehabilitation program and that she wanted visitationon Christmas Day. However, respondent did not provide a way to be reached and, when thecaseworker contacted the rehabilitation program, she was told that respondent had not indicatedwhere she was going when she left. The caseworker testified that she received no othercommunication from respondent during the six months.
The foster parent recalled receiving one short phone call from respondent in January 2008 inwhich she generally inquired about the child. During all but the first couple of weeks of thesix-month period, respondent resided in the same county as petitioner and the foster parents.Although she did not drive, respondent lived with a boyfriend who could transport her. Whileshe claimed to have made additional efforts to contact petitioner and the foster parents, FamilyCourt did not credit such testimony and we accord deference to that credibility determination(see Matter of Anthony I., 61 AD3d at 1321; Matter of Peter F., 281 AD2d 821,824 [2001]). The sporadic and insubstantial contacts made by respondent during the relevanttime period were insufficient to defeat the petition.
Cardona, P.J., Mercure, Spain and Kane, JJ., concur. Ordered that the order is affirmed,without costs.