| Matter of Mahogany Z. (Wayne O.) |
| 2010 NY Slip Op 02705 [72 AD3d 1171] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Mahogany Z., a Child Alleged to be Abandoned.Albany County Department for Children, Youth and Families, Respondent; Wayne O.,Appellant. |
—[*1] Raymond White, Albany County Department for Children, Youth and Families, Albany, forrespondent. Sharon Lee McNulty, Law Guardian, Albany.
Mercure, J.P. Appeal from an order of the Family Court of Albany County (Duggan, J.),entered April 10, 2009, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate respondent's child to be abandoned, and terminatedrespondent's parental rights.
The mother gave birth to the subject child in March 2007 and, with her consent, petitionerplaced the child in a foster home shortly thereafter. In December 2007, petitioner commencedthis termination of parental rights proceeding against respondent, the purported father, allegingabandonment.[FN*] Respondent subsequently consented to the entry of an order of [*2]filiation and, following a trial, Family Court granted the petitionand committed the guardianship and custody of the child to petitioner. Respondent now appeals.
Initially, we reject the Law Guardian's contention that this appeal has been rendered moot byvirtue of the child's subsequent adoption by her foster parents. A determination of neglect creates"a permanent and significant stigma which is capable of affecting a parent's status in potentialfuture proceedings" and, thus, an appeal therefrom is not moot even though the subject child hasbeen adopted (Matter of Matthew C., 227 AD2d 679, 680-681 [1996]). In this case,respondent was found to have abandoned and not neglected the child, but a different result is notwarranted given that a finding of neglect may be premised upon abandonment (seeFamily Ct Act § 1012 [f] [ii]; Matter of Shaniqua L., 193 AD2d 370, 371 [1993]).While this appeal is not moot, our review of the merits discloses no reason to disturb FamilyCourt's determination.
Petitioner was obliged to demonstrate, by clear and convincing evidence, that respondentabandoned the child for a period of six months prior to the filing of the abandonment petition inorder to terminate his parental rights (see Social Services Law § 384-b [4] [b]; [5][a]; Matter of Annette B., 4 NY3d509, 513 [2005]; Matter of GabrielD. [Andrea D.], 68 AD3d 1505, 1506 [2009], lv denied 14 NY3d 703 [2010]).Abandonment occurs where a "parent evinces an intent to forego his or her parental rights andobligations as manifested by his or her failure to visit the child and communicate with the childor agency, although able to do so and not prevented or discouraged from doing so by theagency," and there is a rebuttable presumption that the parent is capable of engaging in suchvisits or communication (Social Services Law § 384-b [5] [a]; see Matter of JuliusP., 63 NY2d 477, 481 [1984]; Matter of Gabriel D. [Andrea D.], 68 AD3d at 1506).
Here, despite being aware of the child's existence and visiting her immediately after herbirth, respondent did not interact with either the child or petitioner during the relevant six-monthperiod. Respondent does not claim that he was unable to engage in such communication; instead,he asserts that petitioner made an insufficient effort to involve him in the child's life. Petitioner,however, was not required to show that it made a diligent effort to encourage him to visit orcommunicate with the child (see Social Services Law § 384-b [5] [b]; Matter of Gabrielle HH., 1 NY3d549, 550 [2003]). In any event, the record reflects that petitioner diligently sought outrespondent and made multiple efforts to contact him at his correct address without success (see Matter of Jacob WW., 56 AD3d995, 997 [2008]; Matter of DevinXX., 20 AD3d 639, 640 [2005]).
Respondent's remaining argument, that Family Court should have held a dispositionalhearing, is unpreserved for our review given his failure to seek such a hearing before that court(see Matter of Robert XX., 290 AD2d 753, 755 [2002]; Matter of Nahja I., 279AD2d 666, 668 [2001]). Regardless, a dispositional hearing is not required where abandonmentis established and, given the facts presented, Family Court did not abuse its discretion in failingto conduct one (see Matter of Chantelle TT., 281 AD2d 660, 662 [2001]; Matter ofAlex MM., 260 AD2d 675, 676 [1999]).
Spain, Rose, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: A separate petition, filed againstthe mother, was granted upon her default.