| Matter of Ryan Q. (Eric Q.) |
| 2011 NY Slip Op 09059 [90 AD3d 1263] |
| December 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ryan Q., a Child Alleged to be Abandoned.Schenectady County Department of Social Services. Respondent; Eric Q.,Appellant. |
—[*1] Jennifer M. Barnes, Schenectady County Department of Social Services, Schenectady, forrespondent. Karen R. Crandall, Schenectady, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Schenectady County (Clark, J.),entered January 25, 2011, which granted petitioner's application, in a proceeding pursuant toSocial Services Law § 384-b, to adjudicate respondent's child to be an abandoned child,and terminated respondent's parental rights.
Respondent was incarcerated when his son was born in 2006 and until his release on parolein September 2008. While respondent was incarcerated, his son was in the care of his sister andbrother-in-law because the parental rights of the child's mother were terminated when the childwas 10 weeks old. Respondent was reincarcerated in July 2009 when he violated his parole andremains incarcerated. Petitioner commenced this proceeding in December 2009, claiming thatrespondent had abandoned his son for the six-month period from June 22, 2009 to [*2]December 22, 2009. After holding a fact-finding hearing, FamilyCourt adjudicated the child to be abandoned and terminated respondent's parental rights.Respondent now appeals and we affirm.
A finding that a child is abandoned may be made, and parental rights may be terminated,when, during the six-month period immediately preceding the filing of the petition, the "parentevinces an intent to forego his or her parental rights and obligations as manifested by his or herfailure to visit the child and communicate with the child or agency, although able to do so andnot prevented or discouraged from doing so by the agency" (Social Services Law § 384-b[5] [a]; see Matter of Gabriella I.[Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]). Aparent's ability to maintain contact with his or her child is presumed—including a parentwho is incarcerated (see Social Services Law § 384-b [2] [b]; Matter ofGabriella I. [Jessica J.], 79 AD3d at 1318).
Petitioner bears the initial burden of proving abandonment by clear and convincing evidence(see Matter of Ryan I. [Laurie U.],82 AD3d 1524, 1525 [2011]; Matter of Alexa L. [Nilza L.], 79 AD3d 1290, 1291 [2010]). Here,petitioner established through the testimony of one of petitioner's caseworkers and respondent'sbrother-in-law that respondent had three one-hour supervised visits with the child during therelevant six-month period. The caseworker further testified that respondent sent only one letter topetitioner during that period. Respondent's brother-in-law testified that respondent's only contactswith the child during the relevant six-month period, aside from the foregoing visits, consisted ofone birthday card and one voice mail message. Such sporadic and insubstantial contacts wereinsufficient to preclude a finding of abandonment and the burden, therefore, shifted to respondentto demonstrate that he was unable to maintain contact with the child or, if able, was prevented ordiscouraged from doing so by petitioner (see Matter of Yvonne N., 16 AD3d 789, 790 [2005]).
Respondent testified that, in addition to his three visits with the child during the relevant timeframe, he sent weekly letters to his sister and brother-in-law. However, those letters were notproduced and respondent's sister disputed both the number of letters and their content, denyingthat they concerned the child. Family Court clearly found the sister's testimony to be morecredible. Similarly, the testimony of the child's mother established that respondent sent her onlyone letter, at most, concerning the child. In addition, respondent's attempts to place telephonecalls to petitioner and to his sister and brother-in-law within a short period following hisreincarceration were disingenuous at best, as he was well aware that neither would accept collectcalls and that he had not established a prepaid plan (see Matter of Alkreen J., 288 AD2d785, 786 [2001]).
Although respondent's sister and brother-in-law acknowledged receiving several otherwritten communications from respondent, it was unclear whether they were received within therelevant six-month period. Moreover, their testimony regarding such communications establishedthat respondent was not prevented by his incarceration from requesting visits and/orcommunicating with the child through the appropriate parties, but failed to do so. In fact,respondent produced no credible evidence that he ever sought information with regard to thechild's progress or well-being or otherwise demonstrated a meaningful effort to assume hisparental obligations (see Matter of Gabriella I. [Jessica J.], 79 AD3d at 1318), and hissubjective intent is insufficient to preclude a finding of abandonment (see Matter of Jackie B. [Dennis B.], 75AD3d 692, 694 [2010]). Morever, petitioner had no obligation to establish that it madediligent attempts to strengthen the relationship between respondent and the child (see Matter of [*3]William B., 47 AD3d 983, 985-986 [2008], lvdenied 11 NY3d 702 [2008]).
In our view, there is ample support in the record for Family Court's determination thatrespondent was able to communicate with the child and with petitioner and was not prevented ordiscouraged from doing so by petitioner. According great deference to Family Court's ability tomake credibility determinations and assess the demeanor of the witnesses (see Matter ofJackie B. [Dennis B.], 75 AD3d at 694; Matter of Joshua BB., 27 AD3d 867, 869 [2006]), we find no basisto disturb its determination that respondent failed to demonstrate that he maintained sufficientcontact with the child to defeat a finding of abandonment (see Matter of Ryan I. [LaurieU.], 82 AD3d at 1525).
Respondent's remaining contentions have been considered and are unavailing.
Mercure, A.P.J., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.