| Matter of Le'Airra CC. (Christopher DD.) |
| 2010 NY Slip Op 08827 [79 AD3d 1203] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of Le'Airra CC., Alleged to be an Abandoned Child.Albany County Department of Children, Youth and Families, Respondent; Christopher DD.,Appellant. |
—[*1] Raymond White, Albany County Department of Children, Youth and Families, Albany, forrespondent. Sharon Lee McNulty, Albany, attorney for the child.
Cardona, P.J. Appeal from an order of the Family Court of Albany County (Maney, J.), enteredJanuary 26, 2010, which granted petitioner's application, in a proceeding pursuant to Social ServicesLaw § 384-b, to adjudicate Le'Airra CC. an abandoned child, and terminated respondent'sparental rights.
Respondent, the father of Le'Airra CC. (born in 2008), was incarcerated at the time of her birthand remained incarcerated throughout these proceedings. Soon after the child's birth, petitioner sentrespondent a letter at the correctional facility where he was incarcerated informing him of the child'splacement in foster care as well as his rights and obligations as her father. Shortly thereafter, respondentwrote a letter to the caseworker, Michelle Brodhead, expressing his desire to talk to a caseworker andto be informed about the child's placement. Brodhead did [*2]notrespond to the letter. Approximately two months later, in October 2008, respondent called Brodheadand she informed him that the child was in petitioner's care in an Albany County foster home, but shedid not give him the foster parents' address or telephone number. They also discussed the plan thatneeded to be made for the child's future. Respondent called Brodhead again in November 2008 andhad a similar discussion. Thereafter, petitioner sent respondent monthly status letters as well as thepermanency reports relating to the child. However, respondent did not contact petitioner again untilafter this proceeding, which seeks to terminate his parental rights on the ground of abandonment, wascommenced in July 2009. Following a hearing, Family Court granted the petition, prompting thisappeal.
A parent will be found to have abandoned his or her child when, for the six months immediatelypreceding the date of filing of the petition, he or she fails to visit or communicate with the child or theagency although able to do so and not prevented or discouraged by the agency (see SocialServices Law § 384-b [4] [b]; [5] [a]; Matter of Annette B., 4 NY3d 509, 513-514 [2005]). Although anincarcerated parent is unable to visit the child, the ability to communicate is presumed absent proof tothe contrary (see Matter of Annette B., 4 NY3d at 514).
Here, respondent admitted at trial that he did not contact the child or petitioner during thesix-month period immediately preceding the filing of the petition—specifically, January 10, 2009to July 10, 2009. Although he claims to have requested information about the child either personally orthrough counsel when appearing in court on different matters, and notes that he read the letters andpermanency reports sent to him by petitioner, we do not agree with his contention that such minimal andinsubstantial contacts are sufficient to preclude a determination of abandonment (see Matter of Kerrianne AA. [Linda AA.], 1AD3d 835, 837 [2003], lv denied 1 NY3d 507 [2004]). Nor are we persuaded thatpetitioner discouraged respondent's attempts to communicate with Brodhead or, through her, with thechild (see Social Services Law § 384-b [5] [a]) or that communication was not feasible.Although there were apparently some restrictions on respondent's telephone use due to hisincarceration, Family Court found that he presented no credible evidence explaining why, during therelevant period, he was unable to call Brodhead, who testified that she would have accepted collectcalls (see Matter of Jackie B. [DennisB.], 75 AD3d 692, 693-694 [2010]). Moreover, respondent admitted that he could havewritten to petitioner but did not until after he received notice of the termination petition (see Matter of Nevaha J., 56 AD3d989, 991 [2008], lv denied 11 NY3d 716 [2009]). Accordingly, we find that petitionerproved by clear and convincing evidence that respondent abandoned the child.
As a final matter, we note that Family Court did not err in sustaining objections to questions posedby respondent's counsel aimed at demonstrating a lack of diligent efforts on petitioner's part, sincediligent efforts to encourage contact are not required in support of a petition alleging abandonment(see Social Services Law § 384-b [5] [b]; Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d 695, 697 [2010]).Respondent's remaining contentions are either unpreserved or without merit.
Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed, withoutcosts.