| Matter of Gabriella I. (Jessica J.) |
| 2010 NY Slip Op 09044 [79 AD3d 1317] |
| December 9, 2010 |
| Appellate Division, Third Department |
| In the Matter of Gabriella I., a Child Alleged to be Abandoned. BroomeCounty Department of Social Services, Respondent; Jessica J., Appellant. |
—[*1] Thomas P. Coulson, Broome County Department of Social Services, Binghamton, for respondent. Norbert A. Higgins, Binghamton, attorney for the child.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered December 9, 2009, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate Gabriella I. an abandoned child, and terminatedrespondent's parental rights.
In early 2006, respondent, then 16 years old, gave birth to Gabriella I. Shortly thereafter,respondent ran away from her person in need of supervision placement, leaving the child at the facility.Petitioner received emergency custody of the child and, once located, respondent consented to afinding of neglect. The child has remained continuously in foster care since April 2006. Petitionercommenced this proceeding in February 2009 alleging abandonment as a ground to terminaterespondent's parental rights. Family Court determined, after a hearing, that respondent had abandonedthe child. The court then terminated her parental rights and freed the child for adoption. Respondentappeals.[*2]
The sole issue argued by respondent is that the proof wasinsufficient to establish that she abandoned the child. "We will not disturb a determination ofabandonment if clear and convincing evidence supports the finding that the parent failed to visit orcommunicate with the child or the petitioning agency during the six-month period immediately prior tothe date of the filing of the petition, although able to do so and not prevented or discouraged from doingso by the petitioner" (Matter of Alec B.,34 AD3d 1110, 1110 [2006] [citations omitted]; see Social Services Law § 384-b[5] [a]). "A parent's ability to visit and/or communicate with his or her child is presumed, and once afailure to do so is established, the burden is upon the parent to prove an inability to maintain contact orthat he or she was prevented or discouraged from doing so by the petitioning agency" (Matter of Jackie B. [Dennis B.], 75 AD3d692, 693 [2010] [citations omitted]). "Within the context of an abandonment proceeding,petitioner is under no obligation to exercise diligent efforts to encourage a parent to establish arelationship with his or her child" (Matter ofDevin XX., 20 AD3d 639, 640 [2005] [citation omitted]) and "[s]poradic or insubstantialcontact is insufficient to defeat a finding of abandonment" (Matter of Michaela PP. [Derwood PP.], 72 AD3d 1430, 1430 [2010],lv denied 15 NY3d 705 [2010] [internal quotation marks and citations omitted]).
The three caseworkers who were assigned to respondent's case during the relevant six monthsfrom August 2008 to February 2009 testified that respondent made no visits to the child in that time.Respondent relocated from the Albany area to the City of Binghamton, Broome County in September2008. She then moved to Louisiana in October 2008 and remained there for the duration of therelevant period. A caseworker assigned to respondent until early October 2008 recalled thatrespondent did not talk about the child or visitation in their conversations, but, when the caseworkerspecifically asked about visitation, respondent indicated that she was still interested. However, shefailed to take any steps to make a visit and, instead, soon moved a significant distance from the child.Respondent did not provide caseworkers with advance notice of her move to Louisiana. Once she hadmoved, she did not supply information as to where or how she could be reached, did not requestvisitation, did not seek updates about the child, and failed to stay in contact with the assignedcaseworkers. The caseworkers related that they did nothing to discourage respondent from contactingthe child or them. Although respondent claimed that she made some efforts to contact her caseworkersand exhibited an interest in the child, her testimony was at odds with petitioner's proof and created acredibility issue. Family Court resolved the credibility issue in favor of petitioner's witnesses and weaccord considerable deference to Family Court's credibility determination (see Matter of Jackie B.[Dennis B.], 75 AD3d at 694; Matter of Michaela PP. [Derwood PP.], 72 AD3d at1431). The record contains ample proof to support Family Court's conclusion that respondentabandoned the child.
Peters, J.P., Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.