| Matter of Alyssa A. (Michelle N.\MSandra N.) |
| 2010 NY Slip Op 09129 [79 AD3d 740] |
| December 7, 2010 |
| Appellate Division, Second Department |
| In the Matter of Alyssa A., an Infant. Michelle N., Appellant; Sandra N.et al., Respondents. (Proceeding No. 1.) In the Matter of Andrei A., an Infant. Michelle N., Appellant;Sandra N. et al., Respondents. (Proceeding No. 2.) |
—[*1] Abel & Brustein-Kampel, P.C., New City, N.Y. (Steven L. Abel of counsel), for respondents. Jacqueline Sands, New City, N.Y., attorney for the children.
In two related adoption proceedings pursuant to Domestic Relations Law article 7, the biologicalmother appeals from an order of the Family Court, Rockland County (Warren, J.), dated October 19,2009, which determined, after a hearing, that her consent to the adoption of her children was notrequired because she had abandoned them.
Ordered that the order is affirmed, without costs or disbursements.
In April 2004 the subject children were found to be neglected and were placed in the temporarycustody of the paternal grandparents (hereinafter the petitioners) of the younger child. In September2005 the biological mother tested positive for drugs and her visitation with the children was suspended.In February 2006 she consented to an award of permanent custody of the children to the petitioners. InFebruary 2008 and June 2008 the biological mother petitioned for supervised visitation with thechildren. Those petitions were dismissed, and in July 2008 she began paying child support.
In February 2009 the biological mother filed another petition for supervised visitation. In March2009 the petitioners commenced the instant proceedings to adopt the children, alleging that thebiological mother's consent was not required because she had not made any attempt to contact them orthe children in three years. The biological mother disputed that she had abandoned the children and theFamily Court held the biological mother's supervised visitation petition in abeyance pending theoutcome [*2]of a hearing on the issue of abandonment.
During the hearing, the biological mother moved for the Family Court to recuse itself, which motionwas denied. Upon completion of the hearing, the Family Court determined that the biological mother'sconsent to the adoption of the children was not required, and the biological mother appeals.
Absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter ofthe need for recusal, and the decision is a matter of discretion and personal conscience (see Peoplev Moreno, 70 NY2d 403, 405 [1987]; Matter of O'Donnell v Goldenberg, 68 AD3d 1000 [2009]; Impastato v Impastato, 62 AD3d 752[2009]). Here, the biological mother failed to set forth any demonstrable proof of bias or prejudgmentof the matter to warrant the conclusion that the Family Court's denial of her motion to recuse was animprovident exercise of discretion (see Matterof O'Donnell v Goldenberg, 68 AD3d 1000 [2009]; Impastato v Impastato, 62 AD3d 752 [2009]).
The Family Court properly determined that the biological mother's consent to the adoption of thechildren by the petitioners was not required. Consent to adoption is not required of a parent whodemonstrates an intent to forego parental rights "as manifested by his or her failure for a period of sixmonths to visit the child and communicate with the child or person having legal custody of the child,although able to do so" (Domestic Relations Law § 111 [2] [a]; see Matter of Tiara G. [TheresaG.—Norman A.], 73 AD3d 920 [2010]). The ability to visit and communicate with achild or person having custody of the child is presumed (see Domestic Relations Law §111 [6] [a]), and subjective intent, "unsupported by acts, is insufficient to avoid a finding ofabandonment" (Matter of Shauna B., 305 AD2d 737, 738 [2003]; see DomesticRelations Law § 111 [6] [c]; Matter ofMia II. [Theresa J.J.—Michael II.], 75 AD3d 722, 724 [2010], lv denied 15NY3d 710 [2010]).
Contrary to the biological mother's contention, the petitioners sustained their burden of establishing,by clear and convincing evidence (see Matterof Tiara G. [Theresa G.—Norman A.], 73 AD3d 920 [2010]), that she abandoned thechildren pursuant to Domestic Relations Law § 111 (2) (a). It is undisputed that she last visitedwith the children in September 2005. Although she testified that she sent weekly letters to the childrenduring a period of time in 2006, and that she telephoned the petitioners in December 2006, whoadvised her not to call again or they would call the police, the petitioners both testified that they did notreceive any such letters or telephone call. The Family Court resolved this conflicting testimony in favorof the petitioners, and there is no basis to disturb the Family Court's credibility determination (see Matter of Morgaine JJ., 31 AD3d931 [2006]; Matter of Shaolin G., 277 AD2d 312 [2000]).
In any event, even if the biological mother's testimony were credited, it would not excuse heradmitted failure to attempt to contact the children or the petitioners throughout the year 2007 (seeMatter of Joshua II., 296 AD2d 646 [2002]; Matter of Lisa Marie F., 110 AD2d 993[1985]; cf. Matter of Shawn P., 187 AD2d 432 [1992]). Mastro, J.P., Covello, Angiolillo andLott, JJ., concur.