| Matter of Jamal B. (Johnny B.) |
| 2012 NY Slip Op 04253 [95 AD3d 1614] |
| May 31, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of JAMAL B. and Others, Alleged to beAbandoned Children. Broome County Department of Social Services, Respondent; Johnny B.,Appellant. |
—[*1] Thomas Coulson, Broome County Department of Social Services, Binghamton, forrespondent. F. Daniel Casella, Binghamton, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredOctober 3, 2011, which granted petitioner's application, in a proceeding pursuant to SocialServices Law § 384-b, to adjudicate the subject children to be abandoned, and terminatedrespondent's parental rights.
Respondent is the father of four children (born in 2002, 2004, 2006 and 2008). The threeolder children were removed from their parents' custody and placed in a foster home in August2007, and the youngest child was removed in March 2009. Petitioner alleged in this proceedingthat respondent abandoned the children for the six-month period from September 30, 2010through March 30, 2011. Following a fact-finding hearing, Family Court adjudicated the childrento be abandoned and terminated respondent's parental rights. Respondent appeals, and we affirm.
To establish that respondent abandoned his children, petitioner was required to show by[*2]clear and convincing evidence that during the six monthsimmediately before filing the petition, he "evince[d] an intent to forego his . . .parental rights and obligations as manifested by his . . . failure to visit the child andcommunicate with the child or agency, although able to do so and not prevented or discouragedfrom doing so by the agency" (Social Services Law § 384-b [5] [a]; see Matter of Ryan Q. [Eric Q.], 90AD3d 1263, 1263-1264 [2011], lv denied 18 NY3d 809 [2012]; Matter of Lily LL. [Eric MM.], 88AD3d 1121, 1122 [2011]). Respondent's ability to maintain contact with his children ispresumed. If petitioner shows that he failed to do so, the burden shifts, and respondent mustestablish that he was unable to maintain contact or that petitioner prevented or discouraged himfrom doing so (see Social Services Law § 384-b [5] [a]; Matter of Lamar LL. [Loreal MM.], 86AD3d 680, 680-681 [2011], lv denied 17 NY3d 712 [2011]; Matter of Jacob WW., 56 AD3d995, 997 [2008]).
By the testimony of caseworkers and the children's foster father, petitioner established thatrespondent visited the children only twice during the relevant period, although he was scheduledto do so every two weeks. He spoke with two of the children by telephone once, in a call initiatedby the foster father. On one occasion, respondent left a voice mail message asking a caseworkerto contact him to discuss the children; the caseworker returned the call and left a message, butrespondent did not call back. Respondent also made at least two calls to the caseworkers todiscuss transportation problems, and he spoke with them when he attended court proceedings. Hesent no letters or cards to the children and did not attend meetings to discuss their status.Respondent's sporadic and infrequent, insubstantial contacts were insufficient to defeat the claimof abandonment (see Matter of Ryan Q. [Eric Q.], 90 AD3d at 1264; Matter of Michaela PP. [Derwood PP.],72 AD3d 1430, 1430-1431 [2010], lv denied 15 NY3d 705 [2010]; Matter ofChantelle TT., 281 AD2d 660, 661 [2001]).
Respondent did not demonstrate that he was unable to maintain contact with the children nordiscouraged from doing so. Although he claimed that transportation difficulties prevented himfrom visiting the children after he moved from the city to a rural location, he conceded that hewas still able to arrange transportation for other purposes. Thus, he did not demonstrate that thisproblem so "permeated his life as to make contact with his child[ren] or petitioner during therelevant time period infeasible" (Matterof Leala T., 55 AD3d 1007, 1008 [2008] [internal quotation marks and citationomitted]; accord Matter of Stephen UU.[Stephen VV.], 81 AD3d 1127, 1129 [2011], lv denied 17 NY3d 702 [2011]).Respondent further claimed that he intentionally forfeited visits with the children to further hisgoal of having them returned to their mother, as she received more time with the children whenrespondent did not visit them. However, the benefit that the mother derived from respondent'sunused visits was relatively modest, as she had substantial additional scheduled visitation. In anyevent, neither respondent's alleged plan to enhance the mother's visitation nor his transportationdifficulties explained his failure to communicate with the children by either mail or telephone (compare Matter of Jamaica M. [HakeemN.], 90 AD3d 1105, 1106 [2011], lv denied 18 NY3d 806 [2012]; Matter of Ryan I. [Laurie U.], 82 AD3d1524, 1525-1526 [2011]; Matter of Omar RR., 270 AD2d 588, 589-590 [2000]).Accordingly, Family Court's finding of abandonment will not be disturbed.
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.