| Matter of Michaela PP. (Derwood PP.) |
| 2010 NY Slip Op 03509 [72 AD3d 1430] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michaela PP. and Another, Children Alleged to beAbandoned. Broome County Department of Social Services, Respondent; Derwood PP.,Appellant. |
—[*1] Kuredin V. Eytina, Broome County Department of Social Services, Binghamton, forrespondent. Steven J. Getman, Law Guardian, Ovid.
Cardona, P.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 Michaela PP. and Nicholas PP. abandoned children,and terminated respondent's parental rights.
Respondent is the father of two children, Michaela (born in 2004) and Nicholas (born in1995), who have been in petitioner's custody since March 2004. In October 2008, petitionercommenced this proceeding seeking to terminate respondent's parental rights on the ground ofabandonment.[FN*]Following a hearing, Family Court granted the petition and freed the children for [*2]adoption, prompting this appeal.
In order to terminate parental rights on the ground of abandonment, petitioner must establishby clear and convincing evidence that, during the six-month period prior to the filing of thepetition, the parent "evinces an intent to forego his or her parental rights and obligations asmanifested by his or her failure to visit the child[ren] and communicate with the child[ren] oragency, although able to do so and not prevented or discouraged from doing so by the agency"(Social Services Law § 384-b [5] [a]; see Matter of Gabriel D. [Andrea D.], 68 AD3d 1505, 1506 [2009],lv denied 14 NY3d 703 [2010]). A parent's ability to visit and communicate with his orher children is presumed (see Matter of Chantelle TT., 281 AD2d 660, 661 [2001]), andonce a failure to do so is established, the burden is upon the parent to demonstrate that he or shemaintained sufficient contacts with the children (see Matter of Alec B., 34 AD3d 1110, 1111 [2006]; Matter ofChantelle TT., 281 AD2d at 661). "[S]poradic or insubstantial contact is insufficient todefeat a finding of abandonment" (Matter of Gabriel D., 68 AD3d at 1506 [internalquotation marks and citations omitted]; see Matter of Malikah MM., 40 AD3d 1173, 1174 [2007]).
Here, respondent did not exercise his weekly scheduled supervised visitation and made onlytwo attempts during the relevant six-month period to visit with his children. The first occurred inJune 2008 when respondent attempted to accompany the mother on her scheduled visitation atthe mall. However, the caseworker informed respondent that he was not allowed to take part inthe visit because he was not scheduled to be there and his prior visits with the children in apublic location had proved problematic. The second visit occurred in August 2008 whenrespondent requested to visit his son in the hospital after he broke his hand. The record reflectsthat respondent made no other attempts during the relevant time period to contact the childrennor did he maintain sufficient contact with petitioner regarding the children. Althoughrespondent testified that his limited contact with the children resulted from his problems with thecaseworker and her refusal to let him visit the children, Family Court found such testimony notcredible and we defer to that determination (see Matter of Gabriel D., 68 AD3d at1506-1507; Matter of Peter F., 281 AD2d 821, 824 [2001]). Furthermore, we agree withthe court's conclusion that such sporadic and infrequent efforts do not evince respondent's intentto continue a relationship with his children but, rather, support the finding of abandonment.
Respondent's remaining contentions have been reviewed and found to be without merit.
Mercure, Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The children's mothersurrendered her parental rights in October 2008.