| Matter of Jamaica M. (Hakeem N.) |
| 2011 NY Slip Op 08698 [90 AD3d 1105] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jamaica M. and Another, Children Alleged to beAbandoned. Schenectady County Department of Social Services, Respondent; Hakeem N.,Appellant. |
—[*1] Jennifer M. Barnes, Deputy County Attorney, Schenectady, for respondent. Linda A. Berkowitz, Saratoga Springs, attorney for the children.
Peters, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered October 14, 2010, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's children to be abandoned.
Respondent is the father of a son and a daughter (born in 2002 and 2009, respectively). InJuly 2009, the children were removed from their mother's care and placed in petitioner's custody,where they have remained. Respondent sporadically visited the children while they were in fostercare until November 2009, when he informed the family specialist from the foster care agencythat he was going into a "mandatory program" and would not be able to visit the children. In May2010, petitioner commenced this proceeding seeking to terminate respondent's [*2]parental rights on the ground of abandonment.[FN1]After a fact-finding hearing, Family Court found that respondent, who had been incarceratedsince December 11, 2009, had abandoned the children. Following a dispositional hearing,respondent's parental rights were terminated and the children were freed for adoption. Thisappeal ensued.[FN2]
"A finding of abandonment is warranted when it is established by clear and convincingevidence that the parent failed to visit or communicate with the child or the petitioning agencyduring the six-month period immediately prior to the filing of the petition" (Matter of Lamar LL. [Loreal MM.], 86AD3d 680, 680 [2011], lv denied 17 NY3d 712 [2011] [citations omitted];see Social Services Law § 384-b [4] [b]; [5] [a]; Matter of Annette B., 4 NY3d 509,513 [2005]; Matter of Stephen UU.[Stephen VV.], 81 AD3d 1127, 1128 [2011], lvs denied 17 NY3d 702 [2011])."Incarcerated parents have a responsibility to communicate with their children and, unless thereis evidence to the contrary, they are presumed able to do so" (Matter of Anthony I., 61 AD3d 1320, 1321 [2009] [internalquotation marks and citations omitted]; see Matter of Annette B., 4 NY3d at 513; Matter of Le'Airra CC. [ChristopherDD.], 79 AD3d 1203, 1204 [2010], lv denied 16 NY3d 706 [2011]).
Here, it is undisputed that respondent had no contact with his children or petitioner duringthe relevant six-month period, which ran from November 24, 2009 to May 24, 2010. Thus, it wasrespondent's burden to establish that, during this period, he was unable to maintain contact orprevented or discouraged from doing so by petitioner (see Social Services Law §384-b [5] [a]; Matter of Jackie B.[Dennis B.], 75 AD3d 692, 693 [2010]). This respondent failed to do. Althoughconfined for the majority of the relevant time period, respondent conceded that he was able tomake telephone calls and send letters and, in fact, contacted his sister during that time using bothmethods. Furthermore, petitioner's caseworker and the family specialist from the foster careagency both testified that they provided respondent with their contact information prior to hisincarceration. While respondent testified that he did not know he could contact his children whilein prison, he provided no basis for his belief in that regard (see Matter of Jackie B. [DennisB.], 75 AD3d at 693) and, in any event, his incarceration did not relieve him of theobligation to communicate with petitioner or its representatives (see Matter of Stephen UU.[Stephen VV.], 81 AD3d at 1129; Matter of Le'Airra CC. [Christopher DD.], 79AD3d at 1204; Matter of Jackie B. [Dennis B.], 75 AD3d at 693). Nor is there anyevidence that petitioner or its caseworkers discouraged respondent from contacting the children.While respondent contends that petitioner made insufficient efforts to locate and contact himwhile he was incarcerated, [*3]petitioner was under no obligationin the context of this abandonment proceeding to undertake diligent efforts to encouragerespondent to visit or communicate with the children (see Social Services Law §384-b [5] [b]; Matter of Lamar LL. [Loreal MM.], 86 AD3d at 681; Matter of Mahogany Z. [Wayne O.], 72AD3d 1171, 1172-1173 [2010], lv denied 14 NY3d 714 [2010]; Matter of Devin XX., 20 AD3d639, 640 [2005]). Accordingly, we find clear and convincing evidence supporting FamilyCourt's determination that respondent abandoned the children.
Finally, inasmuch as respondent did not appeal from the dispositional order, his argumentsrelating to the propriety of Family Court's disposition are not properly before us (see Matter of Rebecca KK., 40 AD3d1195, 1196 n [2007], lv denied 9 NY3d 811 [2007]; Matter of Erika G., 289AD2d 803, 804 [2001]).
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: The petition also allegedabandonment by the mother, who thereafter failed to appear at any point in the proceeding.Family Court ultimately found that she had abandoned the children and terminated her parentalrights.
Footnote 2: Respondent filed an appeal fromonly the fact-finding order, which is not appealable as of right (see Family Ct Act §1112 [a]; Matter of Jason FF., 224 AD2d 900, 900 [1996]). We will, however, treat thenotice of appeal as an application for leave to appeal and grant the application (see Matter of Lamar LL. [Loreal MM.],86 AD3d 680, 680 n 1 [2011], lv denied 17 NY3d 712 [2011]).