| Matter of Erving BB. (Lynette EE.) |
| 2013 NY Slip Op 07789 [111 AD3d 1102] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Erving BB., a Child Alleged to beAbandoned. Madison County Department of Social Services, Respondent; Lynette EE.,Appellant. |
—[*1] Julie A. Jones, Madison County Department of Social Services, Wampsville, forrespondent. Lawrence Brown, Bridgeport, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Madison County(McDermott, J.), entered November 29, 2012, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate Erving BB. tobe an abandoned child, and terminated respondent's parental rights.
When respondent found herself homeless in June 2011, she signed a voluntaryplacement agreement and placed her son (born in 1999) in petitioner's custody.Respondent visited him once in July 2011. Based on respondent's lack of contact withher son or petitioner after that visit, petitioner commenced this abandonment proceedingin March 2012. Following a hearing, Family Court found that respondent abandoned herson, and terminated her parental rights. Respondent appeals.
We affirm. Petitioner met its initial burden of establishing by clear and convincingevidence that respondent failed to visit or communicate with petitioner or her childduring the six [*2]months immediately prior to the filingof the petition, although she was "able to do so and not prevented or discouraged fromdoing so by . . . petitioner" (Matter of Alec B., 34 AD3d 1110, 1110 [2006];see Social Services Law § 384-b [5] [a]; Matter of Gabriella I. [JessicaJ.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]). Theability to visit and communicate is presumed absent evidence to the contrary (seeSocial Services Law § 384-b [5] [a]); "once a failure to do so is established, theburden is upon the parent to prove an inability to maintain contact or that he or she wasprevented or discouraged from doing so by the petitioning agency" (Matter of Jackie B. [DennisB.], 75 AD3d 692, 693 [2010]; see Matter of Gabriella I. [Jessica J.], 79AD3d at 1318). Despite respondent's intermittent homelessness, difficulties in arrangingtransportation, and lack of finances and accessible phone service, at some points duringthe six-month period she had housing and employment. Thus, Family Court found that itwould not have been impossible or unfeasible for respondent to contact petitioner or herchild at some time during that period (see Matter of Yvonne N., 16 AD3d 789, 791 [2005];Matter of John Z., 209 AD2d 821, 822 [1994]). Accepting Family Court'scredibility determinations, respondent failed to meet her burden to show that petitionerprevented or discouraged her from visiting or communicating with petitioner or her son.
Unlike in a permanent neglect proceeding, in an abandonment proceeding petitioneris not required to prove that it exercised diligent efforts to reunite the family or assist theparent in maintaining contact (see Social Services Law § 384-b [5] [b]; Matter of Lamar LL. [LorealMM.], 86 AD3d 680, 681 [2011], lv denied 17 NY3d 712 [2011]; Matter of Kaitlyn E. [LyndsayE.], 75 AD3d 695, 697 [2010]; compare Social Services Law §384-b [7] [a], [f]). The only statutorily authorized disposition after a finding ofabandonment is an order committing the child's custody to petitioner; a suspendedjudgment is not an option (see Social Services Law § 384-b [3] [g];compare Family Ct Act § 631 [permitting suspended judgment as anoption after a finding of permanent neglect]). Thus, Family Court properly terminatedrespondent's parental rights.
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.