| Matter of Jazmyne OO. (Maurice OO.) |
| 2013 NY Slip Op 07783 [111 AD3d 1085] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Jazmyne OO., a Child Alleged to beAbandoned. Cortland County Department of Social Services, Respondent; Maurice OO.,Appellant. |
—[*1] Ingrid Olsen Tjensvold, Cortland County Department of Social Services, Cortland,for respondent. Mark A. Schaeber, Liverpool, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Cortland County (Campbell,J.), entered September 7, 2012, which granted petitioner's application, in a proceedingpursuant to Social Services Law § 384-b, to adjudicate Jazmyne OO. to be anabandoned child, and terminated respondent's parental rights.
In June 2010, Jazmyne OO. (born in 2009) was removed from her mother's custodyand placed in foster care, where she has since resided. Thereafter, the mother consentedto a finding that she neglected the child.[FN1]Petitioner then filed a petition to establish that respondent was the child's father and anorder of filiation was entered in January 2011. In January 2012, petitioner commencedthis proceeding alleging that respondent had abandoned the child. After a fact-[*2]finding hearing, at which respondent failed toappear,[FN2]Family Court adjudicated the child to be abandoned, terminated respondent's parentalrights and freed the child for adoption. This appeal by respondent ensued.
We affirm. Respondent's sole challenge on appeal is to Family Court's determinationthat he abandoned the child. In that regard, petitioner was required to show by clear andconvincing evidence that, for the six months immediately predating the petition,respondent "evince[d] an intent to forego his . . . parental rights andobligations as manifested by his . . . failure to visit the child andcommunicate with the child or agency, although able to do so and not prevented ordiscouraged from doing so by the agency" (Social Services Law § 384-b [5] [a];see Social Services Law § 384-b [4] [b]; Matter of Arianna I. [Roger I.], 100 AD3d 1281, 1284[2012]; Matter of Jamal B.[Johnny B.], 95 AD3d 1614, 1615 [2012], lv denied 19 NY3d 812[2012]). Respondent's ability to maintain contact with the child or the agency ispresumed and, if petitioner shows that he failed in this regard, the burden shifts torespondent to establish that he was unable to maintain contact or that petitioner preventedor discouraged him from doing so (see Matter of Maria E. [Jermaine D.], 94 AD3d 1357, 1358[2012]; Matter of Ryan Q. [EricQ.], 90 AD3d 1263, 1264 [2011], lv denied 18 NY3d 809 [2012]).
Here, inasmuch as the petition was filed on January 6, 2012, the relevant six-monthperiod commenced on July 6, 2011. The record establishes that, during this time,respondent did not contact or otherwise communicate with petitioner, despite theagency's repeated attempts to contact respondent and its requests that he inform them ofhis plan for the child.[FN3]Further, respondent's one and only visit with the child occurred in June2011—prior to the commencement of the six-month period—and wasstressful and upsetting for the child because respondent was a stranger to her. Asubsequent visit was arranged by petitioner, at respondent's request, but did not occurbecause respondent failed to appear. Likewise, a custody petition filed by respondentprior to the commencement of the six-month period was dismissed due to respondent'sfailure to appear in Family Court and pursue such application.
While respondent claims that he maintained contact with the child by sending hergifts and cards in November and December 2011, Family Court questioned whether theywere sent by respondent or by respondent's mother (see Matter of Jacob WW., 56 AD3d 995, 997 [2008]), anissue that could not squarely be resolved due to respondent's failure to appear at theabandonment hearing. In any event, we agree with Family Court's determination that,even if respondent was responsible for sending these gifts and cards, such sporadic andlimited contact was insufficient to defeat petitioner's showing of abandonment (seeMatter of Ryan Q. [Eric Q.], 90 AD3d at 1264; Matter of Ryan I. [Laurie U.], 82 AD3d 1524, 1525[2011]; Matter of Michaela PP.[Derwood PP.], 72 AD3d 1430, 1430-1431 [2010], lv denied 15 NY3d705 [2010]).
Moreover, the record is devoid of any evidence to support respondent's contentionthat petitioner prevented or discouraged him from maintaining contact with the child orthe agency. [*3]To the contrary, petitioner arranged forrespondent to visit with the child and made multiple attempts to communicate withrespondent. Additionally, we are unpersuaded by respondent's claim that petitionerprevented him from contacting the child by leading him to believe that petitioner wouldinitiate procedures under the Interstate Compact on the Placement of Children(hereinafter ICPC). It was made clear to respondent at an earlier proceeding that, becausehe resided in a different state, it was necessary for him to request an investigationthrough the ICPC in his home state. There is no evidence that he did so and, inasmuch asrespondent did not appear and testify at the fact-finding hearing on the abandonmentpetition, he offered no proof that he detrimentally relied upon any assertions made bypetitioner with regard to the ICPC process. As a result, we find ample support for FamilyCourt's determination that respondent was able to communicate with the child andpetitioner and he was not prevented or discouraged from doing so by petitioner (seeMatter of Ryan Q. [Eric Q.], 90 AD3d at 1265; Matter of Leon CC. [Larry CC.], 86 AD3d 764, 766[2011], lv denied 17 NY3d 714 [2011]; Matter of Ryan I. [Laurie U.], 82AD3d at 1526), and we otherwise discern no basis to disturb the finding of abandonment.
Peters, P.J., McCarthy and Spain, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The mother ultimatelysurrendered her parental rights to the child.
Footnote 2: However, respondent'sattorney appeared, presented evidence, cross-examined witnesses and made arguments onrespondent's behalf.
Footnote 3: Respondent begancommunicating with petitioner after the petition was filed.