| Matter of Dimitris J. (Sarah J.) |
| 2016 NY Slip Op 05409 [141 AD3d 768] |
| July 7, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Dimitris J., Alleged to be anAbandoned Child. Broome County Department of Social Services, Respondent; Sarah J.,Appellant. |
Lisa A. Natoli, Norwich, for appellant.
Thomas P. Coulson, Broome County Department of Social Services, Binghamton,for respondent.
Mary Jane Murphy, Binghamton, attorney for the child.
McCarthy, J.P. Appeal from an order of the Family Court of Broome County(Connerton, J.), entered May 22, 2015, which granted petitioner's application, in aproceeding pursuant to Social Services Law § 384-b, to adjudicate DimitrisJ. to be an abandoned child, and terminated respondent's parental rights.
Respondent is the mother of Dimitris J. (born in 2010), who was removed fromrespondent's care in March 2013 based upon allegations of neglect. Petitionercommenced this proceeding to terminate respondent's parental rights in January 2015 onthe ground of abandonment. Following a fact-finding and dispositional hearing, FamilyCourt determined that respondent had abandoned the child and terminated her parentalrights.[FN*]Respondent appeals.
[*2] We affirm. "Afinding of abandonment is warranted when it is established by clear and convincingevidence that the parent failed to visit or communicate with the child or the petitioningagency during the six-month period immediately prior to the filing of the [abandonment]petition" (Matter of Dustin JJ.[Clyde KK.], 114 AD3d 1050, 1050 [2014] [internal quotation marks andcitation omitted], lv denied 23 NY3d 901 [2014]), "although able to do so andnot prevented or discouraged from doing so by [petitioner]" (Matter of Carter A. [Jason A.],111 AD3d 1181, 1182 [2013] [internal quotation marks and citation omitted], lvdenied 22 NY3d 862 [2014]; see Matter of Annette B., 4 NY3d 509, 513 [2005]).Respondent's ability to maintain contact, to visit and to communicate with her child ispresumed in the absence of evidence to the contrary (see Social Services Law§ 384-b [5] [a]; Matter of Erving BB. [Lynette EE.], 111 AD3d 1102, 1103[2013]). Once petitioner establishes respondent's failure to maintain contact, the burdenshifts to respondent "to prove an inability to maintain contact or that . . . shewas prevented or discouraged from doing so by the petitioning agency" (Matter ofErving BB. [Lynette EE.], 111 AD3d at 1103 [internal quotation marks and citationomitted]; see Matter of Carter A. [Jason A.], 111 AD3d at 1183).
Petitioner presented the testimony of the child's caseworker and family specialist whoattested that, during the relevant six-month period, respondent did not visit the child,request visits or communicate with petitioner regarding the child. Both testified that theydid not impede or discourage her contact with the child at any point. The caseworkertestified that, just prior to the relevant period, the time for respondent's weekly Saturdayvisits with the child was changed at her request so that she could take the bus, but she didnot attend any of the visits and last visited with him in April 2014. Respondent visitedwith her two older children on a weekday but did not, during those visits or at any othertime, ask about visits with the child or to change her visit schedule with the child. Shedid not communicate in any manner with the child during this period or inquire as to hiswell-being with the caseworkers and, while the child's progress was occasionallymentioned, respondent did not initiate conversations about him or ask for the fostermother's contact information. Respondent testified, admitting that she had no contactwith the child after October 2014, but claimed that she had requested visits with him andasked about him at her visits with her other children. She testified that, during the firstthree months of the relevant period, she was unable to attend the visits with the child,which had been rescheduled at her request, because she had no transportation, butadmitted that she had avoided visits with him during the last three months of this periodbecause there was an outstanding warrant for her arrest. Respondent stated that her frienddrove her to the weekday visits with the other children, but could not drive her onweekends; respondent admitted that she did not request that her visits with the child bemoved to a weekday when her friend was available and willing to drive her.
The testimony of petitioner's caseworkers, which Family Court credited, establishedby clear and convincing evidence respondent's abandonment of the child (see Matterof Erving BB. [Lynette EE.], 111 AD3d at 1103). Although respondent testified thatshe lacked transportation to attend visits in the first three months, she provided noexplanation for why she made no efforts to request a change in the visitation schedule, asshe had done previously, when her friend could drive her; while she lived within a shortwalk to the bus stop, she offered no compelling reason why she could not take the bus tothe visits or request assistance with bus fare. To the extent that respondent claimed thatshe inquired about and requested visits with the child during her visits with her otherchildren, Family Court credited the caseworkers' testimony to the contrary, and itsdetermination in that regard is entitled to deference (see Matter of Dustin JJ. [ClydeKK.], 114 AD3d at 1051). Even if respondent's claims are credited, "sporadic andinfrequent" efforts do not defeat a finding of abandonment (Matter of Carter A.[Jason A.], 111 AD3d at 1183 [internal quotation marks and citation omitted]). Asthe record fully supports Family Court's determination that respondent was able tocommunicate with the child or petitioner and to visit [*3]him and was not prevented or discouraged from doing soby petitioner (see Matter ofJazmyne OO. [Maurice OO.], 111 AD3d 1085, 1087-1088 [2013]), we discernno basis upon which to disturb the court's determination that she abandoned thechild.
Rose, Devine, Clark and Aarons, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:According to FamilyCourt, the father's rights were terminated in a separate proceeding.