| Matter of Kaitlyn E. (Lyndsay E.) |
| 2010 NY Slip Op 05831 [75 AD3d 695] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kaitlyn E., a Child Alleged to be Abandoned.Warren County Department of Social Services, Respondent; Lyndsay E., Appellant. (AndAnother Related Proceeding.) |
—[*1] Anthony Jordan, Warren County Department of Social Services, Lake George, forrespondent. Elizabeth A. Donahue, Glens Falls, attorney for the child.
Cardona, P.J. Appeal from an order of the Family Court of Warren County (Breen, J.),entered September 30, 2009, which, among other things, granted petitioner's application, in twoproceedings pursuant to Social Services Law § 384-b, to adjudicate Kaitlyn E. anabandoned child, and terminated respondent's parental rights.
After a neglect petition was filed against her in August 2007, respondent, who is the motherof Kaitlyn E. (born in 2006), consented to temporary placement of the child in foster care.Respondent subsequently admitted that at approximately 4:00 a.m. on August 11, 2007, she wasarrested after police observed her in a car with her child, who was naked, screaming, and not in acar seat. The police also observed in that car a man with his pants unzipped and cocaine. Basedon respondent's admission, Family Court adjudicated the child to be neglected and extended[*2]placement. Placement was subsequently extended throughseveral permanency hearings. During that period, the child's father executed a surrenderinstrument.
Following a period from late June 2008 to early February 2009 wherein respondent did notvisit or communicate with the child, petitioner commenced these two proceedings seeking toterminate respondent's parental rights on the grounds of abandonment and permanent neglect,respectively. After a fact-finding hearing, Family Court dismissed the permanent neglectpetition, but granted the petition premised on abandonment. Respondent appeals.
We affirm. Through testimony and documentation provided by respondent's caseworkers,petitioner established by clear and convincing evidence that respondent did not visit orcommunicate with the child during the six months immediately preceding the filing of thepetitions; specifically, from August 4, 2008 through February 4, 2008 (see SocialServices Law § 384-b [4] [b]; [5] [a]; Matter of Annette B., 4 NY3d 509, 513-514 [2005]; Matter of Gabriel D. [Andrea D.], 68AD3d 1505, 1506 [2009], lv denied 14 NY3d 703 [2010]). The burden thus shiftedto respondent to show that she maintained sufficient contact, was unable to do so, or wasdiscouraged or prevented from doing so by petitioner (see Social Services Law §384-b [5] [a]; Matter of Anthony I.,61 AD3d 1320, 1321-1322 [2009]).
On appeal, respondent does not dispute her lack of contact during the relevant period.Instead, she argues that petitioner discouraged visitation. We find this argument to beunpersuasive in light of petitioner's many attempts to reach respondent by telephone, as well asthe numerous letters sent by caseworkers that outlined the visitation schedule and which, afterrespondent ceased appearing for scheduled visits, encouraged her to contact petitioner to workout new arrangements (see Matter ofMahogany Z. [Wayne O.], 72 AD3d 1171, 1172-1173 [2010]). Nor are we persuaded byrespondent's contention that petitioner's failure to schedule visitation during the three-monthperiod during which she was incarcerated following her August 2007 arrest in some waydiscouraged respondent's visitation with the child after she was released. Significantly,respondent's period of incarceration was completed nine months prior to commencement of thesix-month period at issue, and during that nine months respondent did sporadically visit with thechild. In any event, while the obligation to facilitate visitation with an incarcerated parent isrelevant to a finding of permanent neglect, petitioner is not required to demonstrate diligentefforts to encourage parental contact in support of a determination of abandonment (seeSocial Services Law § 384-b [5] [b]; Matter of Mahogany Z., 72 AD3d at1172-1173). Finally, respondent's lack of contact is not excused by her claim that she was afraidto visit the child during the relevant period because a warrant had been issued for her arrest aftershe failed to comply with a genetic testing order (see Matter of Alex MM., 260 AD2d675, 676 [1999]).
Respondent's remaining contentions have been considered and found to be unpersuasive.
Peters, Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.