| Matter of Lily LL. (Eric MM.) |
| 2011 NY Slip Op 07334 [88 AD3d 1121] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Lily LL., a Child Alleged to be Abandoned.Schenectady County Department of Social Services, Appellant; Eric MM.,Respondent. |
—[*1] Tammy J. Arquette, Clifton Park, for respondent. Frances L. Friedberg, Schenectady, attorney for the child.
Kavanagh, J. Appeal from an order of the Family Court of Schenectady County (Assini, J.),entered November 19, 2010, which dismissed petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's child to be abandoned.
Respondent was incarcerated when his daughter was born in 2008.[FN1]Shortly after the child's birth, she was removed from her mother's care by petitioner and laterplaced with respondent's father (hereinafter the grandfather). One month after respondent wasreleased from prison, he informed the grandfather that he would "assign [his] rights to [the child]to [the [*2]grandfather]," and had no other significant contactwith her. In April 2010, a permanency hearing was held and respondent's visitation was changedin that any visits that respondent sought to have with the child would have to occur at petitioner'soffice. Petitioner later commenced this abandonment proceeding because respondent did not visitwith the child and had no meaningful contact with her during the six-month period immediatelypreceding the filing of the petition (see Social Services Law § 384-b [4] [b]; [5][a]). After a hearing, Family Court dismissed the petition because respondent had not beenrepresented by counsel during this six-month period. Petitioner now appeals.
To establish that a child has been abandoned, petitioner was required to show that, for thesix-month period immediately prior to the filing of the petition (see Social Services Law§ 384-b [4] [b]), respondent failed "to visit the child and communicate with the child oragency" and was not prevented or discouraged from doing so (Social Services Law § 384-b[5] [a]; see Matter of Le'Airra CC.[Christopher DD.], 79 AD3d 1203, 1204 [2010], lv denied 16 NY3d 706[2011]). Insuring that respondent had the benefit of counsel at any time during this period is notpart of petitioner's statutory obligations (see Social Services Law § 384-b [3] [e];[4] [b]; [5] [a]). What is required is that it be established that respondent, during the relevantperiod, demonstrated an intent to forgo his parental obligations and, in effect, abandoned hischild (see Social Services Law § 384-b [4] [b]; [5] [a]; Matter of Ryan I. [Laurie U.], 82 AD3d1524, 1525 [2011]; Matter ofStephen UU. [Stephen VV.], 81 AD3d 1127, 1128 [2011], lv denied 17 NY3d702 [2011]; Matter of Gabriella I.[Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704[2011]).[FN2]Parenthetically, we note that respondent was assigned counsel when he first appeared inconnection with this petition and had legal representation throughout every stage of thisproceeding.
Moreover, it has been established by clear and convincing evidence that respondent madelittle or no effort to provide for this child or establish a relationship with her during the relevantperiod (see Matter of Ryan I. [Laurie U.], 82 AD3d at 1525; Matter of Stephen UU.[Stephen VV.], 81 AD3d at 1128). Respondent has only been able to document one visitwith his daughter in the six months prior to the filing of this petition, and that occurred becausethe grandfather brought the child to respondent's home while delivering furniture. Whilerespondent claims to have seen the child on three other occasions during this period, this contactas described was, at best, incidental and clearly not part of any effort by respondent to establish arelationship with her (see Matter ofLeon CC. [Larry CC.], 86 AD3d 764, 765 [2011]; Matter of Michaela PP. [Derwood PP.], 72 AD3d 1430, 1430[2010], lv denied 15 NY3d 705 [2010]). In fact, from April 26, 2010 until the petitionwas filed on September 9, 2010, respondent, though able, had no meaningful contact with thechild, did not provide her with support and failed to communicate with the grandfather or hiscaseworker regarding the child's welfare even though encouraged to do so (see SocialServices Law § 384-b [5] [a]; Matter of Le'Airra CC.[*3][Christopher DD.], 79 AD3d at 1204). Therefore, we find thatpetitioner established by clear and convincing evidence that respondent had abandoned his childand the petition should be granted.
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, without costs, petition granted, and matter remitted to the Family Court ofSchenectady County for further proceedings.
Footnote 1: Respondent also has three otherchildren, who are not the subjects of this proceeding.
Footnote 2: Family Court apparentlyconcluded that respondent was entitled to legal representation at the permanency hearing whenhis visitation rights were modified. However, the fact that he did not have legal representation atthat prior proceeding—an issue not before us—would not relieve respondent of hisobligation to maintain contact with his daughter or her caregivers during the relevant time periodprior to the filing of the petition.