| Matter of Dustin JJ. (Clyde KK.) |
| 2014 NY Slip Op 01225 [114 AD3d 1050] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Dustin JJ., a Child Alleged to BeAbandoned. Broome County Department of Social Services, Respondent; Clyde KK.,Appellant. |
—[*1] Albert Aaron, Broome County Department of Social Services, Binghamton, forrespondent. F. Daniel Casella, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County(Charnetsky, J.), entered December 4, 2012, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate Dustin JJ. to bean abandoned child, and terminated respondent's parental rights.
The child who is the subject of this proceeding, Dustin JJ., was placed in petitioner'scustody shortly after his birth in 2010. In July 2011, respondent was declared to beDustin's father and, in August 2011, Dustin's mother executed a judicial surrender of herparental rights. Thereafter, in February 2012, petitioner commenced this proceedingalleging that respondent had abandoned the child. Following a fact-finding hearing,Family Court adjudicated Dustin to be an abandoned child and terminated respondent'sparental rights. Respondent now appeals.
We affirm. "A finding of abandonment is warranted when it is established by clearand convincing evidence that the parent failed to visit or communicate with the child orthe [*2]petitioning agency during the six-month periodimmediately prior to the filing of the petition" (Matter of Lamar LL. [Loreal MM.], 86 AD3d 680, 680[2011], lv denied 17 NY3d 712 [2011] [citations omitted]; see Matter of Ryan Q. [EricQ.], 90 AD3d 1263, 1263-1264 [2011], lv denied 18 NY3d 809 [2012];Matter of Gabriel D. [AndreaD.], 68 AD3d 1505, 1506 [2009], lv denied 14 NY3d 703 [2010]). Inthis regard, "[a] parent's ability to maintain contact with his or her child ispresumed—including a parent who is incarcerated" (Matter of Ryan Q. [EricQ.], 90 AD3d at 1264; accord Matter of Maria E. [Jermaine D.], 94 AD3d 1357,1358 [2012])—and once the parent's failure to maintain contact is established, theburden shifts to 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 Erving BB. [LynetteEE.], 111 AD3d 1102, 1103 [2013] [internal quotation marks and citationomitted]; see Matter of JazmyneOO. [Maurice OO.], 111 AD3d 1085, 1086 [2013]; Matter of Jamal B. [JohnnyB.], 95 AD3d 1614, 1615 [2012], lv denied 19 NY3d 812 [2012]).Notably, in the context of an abandonment proceeding, the petitioning agency "is notrequired to prove that it exercised diligent efforts to reunite the family or assist the parentin maintaining contact" (Matter of Erving BB. [Lynette EE.], 111 AD3d at1103-1104; see Matter of Maria E. [Jermaine D.], 94 AD3d at 1358; Matterof Lamar LL. [Loreal MM.], 86 AD3d at 681).
As Family Court correctly concluded, the relevant six-month period ran from August26, 2011 to February 26, 2012. Although respondent, who was incarcerated fromOctober 30, 2011 to December 23, 2011, testified that he visited with Dustin on a total offour occasions after he was declared to be the child's father, the record reflects that atleast two of these visits occurred outside of the statutory period. Indeed, according topetitioner's caseworker, the foster mother and the social worker who supervised thevisitations, respondent visited the child only once during the six months at issue.
As to other forms of contact, the foster mother testified that although she receivedone or two phone calls from respondent inquiring about the child, the child did notreceive any cards, letters, gifts or emails from respondent during the relevant period.According to petitioner's caseworker, respondent called her on three occasions betweenOctober 2011 and February 2012; during two of those phone calls, respondent expressedthe desire for a bus pass. Such sporadic and insubstantial contacts are, in our view,insufficient to defeat petitioner's showing of abandonment (see Matter of Jamal B.[Johnny B.], 95 AD3d at 1615-1616; Matter of Ryan Q. [Eric Q.], 90 AD3dat 1264; Matter of Leon CC.[Larry CC.], 86 AD3d 764, 765 [2011], lv denied 17 NY3d 714[2011]). To the extent that respondent testified that he contacted the child's foster parents"quite a few times to see how Dustin [was]," Family Court expressly found respondentnot to be credible, and its determination on this point is entitled to deference (seeMatter of Leon CC. [Larry CC.], 86 AD3d at 766). Finally, respondent failed todemonstrate that either his incarceration or his allegedly limited access to a telephone "sopermeated his life as to make contact with his child[ ] or petitioner during the relevanttime period infeasible" (Matter of Jamal B. [Johnny B.], 95 AD3d at 1616[internal quotation marks and citation omitted]), and his present assertion—thatpetitioner prevented or discouraged contact with his child—is belied by the record.Accordingly, we discern no basis upon which to disturb Family Court's finding ofabandonment.
Respondent's remaining contentions do not warrant extended discussion. To theextent that respondent argues that Family Court improperly curtailed hiscross-examination of petitioner's caseworker, we note that the "scope and manner [ofcross-examination] are [matters] left to the sound discretion of the trial court" (Salm v Moses, 13 NY3d816, 817 [2009]; see [*3]Matter of Shane MM. vFamily & Children Servs., 280 AD2d 699, 701 [2001]) and, based upon our reviewof the testimony, we perceive no abuse of that discretion here. As for Family Court'sdecision to forgo a dispositional hearing, "a dispositional hearing is not required whereabandonment is established" (Matter of Mahogany Z. [Wayne O.], 72 AD3d 1171, 1173[2010], lv denied 14 NY3d 714 [2010]; see Matter of Chantelle TT., 281AD2d 660, 662 [2001]) and, in any event, we cannot say that Family Court abused itsdiscretion in dispensing with such a hearing in this matter. Finally, even assuming thatrespondent had requested that Family Court impose a suspended judgment, this Courtrecently concluded that "[t]he only statutorily authorized disposition after a finding ofabandonment is an order committing the child's custody to [the] petitioner; a suspendedjudgment is not an option" (Matter of Erving BB. [Lynette EE.], 111 AD3d at1104). Accordingly, respondent is not entitled to the relief he now seeks.
McCarthy, J.P., Garry and Rose, JJ., concur. Ordered that the order is affirmed,without costs.