| Matter of Maria E. (Jermaine D.) |
| 2012 NY Slip Op 03244 [94 AD3d 1357] |
| April 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Maria E., a Child Alleged to be Abandoned.Rensselaer County Department of Social Services, Respondent; Jermaine D.,Appellant. |
—[*1] Juliane O'Brien, Rensselaer County Department of Social Services, Troy, for respondent. Cynthia Feathers, Glens Falls, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered April 6, 2011, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate Maria E. to be an abandoned child, and terminatedrespondent's parental rights.
Shortly after her birth in September 2008, Maria E. was removed from the care of hermother, who had serious mental health problems, and placed in petitioner's custody; she has sincelived in the same foster home. Within one month, the mother identified respondent as the father,although he was not listed on Maria's birth certificate. Respondent was aware of the possibility ofhis paternity as early as November 2009, but never petitioned for paternity. After petitioner'spaternity application, DNA tests confirmed respondent's paternity in June 2010, and an order offiliation was entered. Despite persistent efforts for almost two years by caseworkers to contactrespondent, who was in and out of prison, respondent never contacted the caseworkers or [*2]responded to their letters, failed at any point to inquire aboutMaria's health or welfare or to provide contact information to the caseworkers after his manyaddress changes, and never visited with or attempted to contact or communicate with Maria.
Petitioner commenced this proceeding in September 2010, shortly after the mother's parentalrights were terminated, seeking to terminate respondent's parental rights on the ground ofabandonment. After a hearing at which respondent—although present withcounsel—chose not to testify, Family Court determined that respondent had abandonedMaria and terminated his parental rights, freeing her for adoption by her foster parents.Respondent now appeals, and we affirm.
A finding that a child has been abandoned may be made and parental rights terminated whenthe petitioner proves, by clear and convincing evidence, that during the six-month periodimmediately preceding the filing of the termination petition, the "parent evinces an intent toforego his or her parental rights and obligations as manifested by his or her failure to visit thechild and communicate with the child or agency, although able to do so and not prevented ordiscouraged from doing so by the agency" (Social Service Law § 384-b [5] [a]; see Matter of Ryan Q. [Eric Q.], 90AD3d 1263, 1263-1264 [2011], lv denied — NY3d —, 2012 NY SlipOp 68318 [Mar. 27, 2012]). "A parent's ability to maintain contact with his or her child ispresumed—including a parent who is incarcerated" (Matter of Ryan Q. [Eric Q.],90 AD3d at 1264, citing Social Service Law § 384-b [2] [b] and Matter of Gabriella I. [Jessica J.], 79AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]).
During the relevant time period,[FN*]March 20, 2010 to September 20, 2010, numerous letters were sent by the assigned caseworker,and respondent's paternity was confirmed, yet he made no efforts to communicate with Maria orpetitioner and failed to provide updated contact information for himself while incarcerated orupon his transfers or releases. While petitioner was under no obligation to exercise diligentefforts to encourage respondent to establish a relationship with his child (see Matter of Devin XX., 20 AD3d639, 640 [2005]), the record reflects that between October 2008 and the September 2010filing of this petition, the caseworkers repeatedly searched the inmate database, welfaremanagement records and the putative father registry in an effort to locate respondent; they senthim approximately 17 letters at various addresses, most of which were not returned, to advisehim of his rights and obligations and urging him to contact them regarding Maria. Respondentnever replied and initiated no contact with the caseworkers. On an unannounced visit to themother's home as early as November 2009, caseworkers met respondent, who confirmed he hadreceived some of the letters and was aware of his possible paternity and the court proceedings.
When the caseworkers visited respondent in August 2010 at the local jail—their onlycontact with him during the statutory period—he was informed that the mother's rights hadrecently been terminated, but he made no inquiry regarding Maria, by then almost two years oldand whom he had never met. He confirmed receipt of their letters and indicated that he did notreply because he did not believe he was the father. Respondent provided an address for his [*3]mother in the Bronx, indicating that she could take custody ofMaria while he would reside in the City of Albany upon his release, but letters to thegrandmother were returned. Respondent did not follow up on this until after the petition wasfiled, and did not contact caseworkers to request visitation, arrange for his mother to contact thecaseworkers, or provide his new location after he was transferred to state prison to serve a 3 to6-year sentence. Neither this tenuous referral to his mother nor his belated fleeting request forjailhouse visitation with Maria, which petitioner then opposed (subsequently obtaining a courtorder prohibiting visitation at a distant prison as against Maria's best interests), are sufficient todefeat a finding of abandonment (see Matter of Ryan Q. [Eric Q.], 90 AD3d at 1264;Matter of Gabriella I. [Jessica J.], 79 AD3d at 1318; Matter of Michaela PP. [Derwood PP.], 72 AD3d 1430, 1430[2010], lv denied 15 NY3d 705 [2010]; Matter of Devin XX., 20 AD3d at 640;Matter of Jovantay U., 298 AD2d 641, 642 [2002]).
Petitioner convincingly established respondent's failure to communicate with Maria orpetitioner or to visit her in the almost two years of her life, evincing his intent to forgo hisparental role and shifting the burden to respondent "to prove an inability to maintain contact orthat he . . . was prevented or discouraged from doing so by the petitioning agency"(Matter of Jackie B. [Dennis B.], 75AD3d 692, 693 [2010]; see Matter of Gabriella I. [Jessica J.], 79 AD3d at 1318).Respondent submitted no such proof, and his failure to testify permitted Family Court "to drawthe strongest inference that the opposing evidence permits against [him]" (Matter of Jacob WW., 56 AD3d995, 997 [2008]). The record amply supports the court's finding—in opencourt—that there was "no evidence of any effort on his part whatsoever."
With regard to Family Court's disposition, we discern no basis upon which to disturb itsdetermination (see Matter of Jackie B. [Dennis B.], 75 AD3d at 694). Given the evidencethat respondent has never met the child, for which he alone bears responsibility, and that thechild is happy and thriving in the home of her foster parents who are ready and willing to adopther, we agree that termination of respondent's parental rights is in her best interests, freeing herfor adoption.
Rose, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: We reject respondent's claimthat the statutory period could not run until he was adjudicated the child's father (see Matter of William B., 47 AD3d983, 985 [2008], lv denied 11 NY3d 702 [2008]).