| Matter of Leon CC. (Larry CC.) |
| 2011 NY Slip Op 05922 [86 AD3d 764] |
| July 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Leon CC., a Child Alleged to be Abandoned.Broome County Department of Social Services, Respondent; Larry CC., Appellant. (AndAnother Related Proceeding.) |
—[*1] Thomas P. Coulson, Broome County Department of Social Services, Binghamton, forrespondent. Norbert A. Higgins, Binghamton, attorney for the child.
Kavanagh, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered October 29, 2010, which, among other things, granted petitioner's application, in twoproceedings pursuant to Social Services Law § 384-b, to adjudicate Leon CC. anabandoned child, and terminated respondent's parental rights.
Respondent challenges Family Court's determination that he abandoned his child (born in2009), who had been placed in petitioner's custody within days of his birth after it wasdetermined that the boy was born addicted to drugs. Respondent and the child's mothersubsequently made certain admissions to allegations set forth in a neglect petition filed bypetitioner and, as a result, an order was issued deeming the child to have been neglected anddirecting that he remain in foster care (see Social Services Law § 384-b [4] [b]; [5][a]). [*2]Thereafter, in February 2010, petitioner commencedseparate proceedings against respondent and the child's mother seeking a finding that theyabandoned the child because, for the six months immediately preceding the filing of the petition,they failed to communicate or visit with the child or have any relevant contact with the child'scaseworker. After a hearing, Family Court determined that the child was abandoned, promptingthis appeal by respondent.
"Family Court's determination of abandonment will be upheld if clear and convincingevidence in the record shows 'that the parent failed to visit or communicate with the child or thepetitioning agency during the six-month period immediately prior to the date of the filing of thepetition, although able to do so and not prevented or discouraged from doing so by the petitioner'" (Matter of Ryan I. [Laurie U.], 82AD3d 1524, 1525 [2011], quoting Matter of Alec B., 34 AD3d 1110, 1110 [2006]; see SocialServices Law § 384-b [5] [a]; Matter of Le'Airra CC. [Christopher DD.], 79 AD3d 1203, 1203[2010], lv denied 16 NY3d 706 [2011]). Here, the child's caseworker[FN1]testified that, during this six-month period, respondent had no contact with the child and did notrespond to petitioner's attempts to arrange for visitation. In fact, according to the caseworker, theone occasion that he believed respondent did attempt to contact him during this period was whena message was left by respondent demanding that the child be brought to respondent's place ofwork because he "didn't like the Department of Social Services." Such "[s]poradic [and]insubstantial contact is insufficient to defeat" petitioner's showing of abandonment (Matter of Michaela PP. [Derwood PP.],72 AD3d 1430, 1430 [2010], lv denied 15 NY3d 705 [2010] [internal quotationmarks and citations omitted]). We note that, although respondent claims to have made numeroustelephone calls to the caseworker during the period in an attempt to establish a relationship withhis son, the caseworker denied receiving any messages from respondent, and it is for FamilyCourt to resolve such credibility disputes, and its decision in that regard is entitled to deference(see Matter of Dior H. [Rondu H.],77 AD3d 1066, 1067 [2010]).[FN2]Moreover, respondent has not rebutted the presumption that, throughout this period, he had theability to contact petitioner and visit with the child (see Social Services Law §384-b [5] [a]; Matter of Stephen UU.[Stephen VV.], 81 AD3d 1127, 1128-1129 [2011], lv denied 17 NY3d702 [2011]), nor has he presented credible evidence establishingthat he was discouraged or prevented from doing so (see Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010],lv denied 16 NY3d 704 [2011]).
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: The child had the samecaseworker during this six-month period.
Footnote 2: The caseworker acknowledgedhaving numerous telephone conversations with respondent, but only after the abandonmentpetition was filed.