Eusebio C.T. v. Children's Vill. (In re Messiah C.T.), 11062

• Decision Date: 20 February 2020
• Docket Number: 11062,Dkt B-10204/17
• Citation: 116 N.Y.S.3d 278,180 A.D.3d 544
• Parties: IN RE MESSIAH C.T., Respondent–Appellant, A Child Under the Age of Eighteen Years, etc., Eusebio C.T., Respondent-Appellant, v. The Children's Village, Petitioner-Respondent.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 544

116 N.Y.S.3d 278

IN RE MESSIAH C.T., Respondent–Appellant, A Child Under the Age of Eighteen Years, etc.,Eusebio C.T., Respondent-Appellant,

v.The Children's Village, Petitioner-Respondent.

11062

Dkt B-10204/17

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 20, 2020

Andrew J. Baer, New York, for appellant.

Law Office of James M. Abramson, PLLC, New York (James M. Abramson of counsel), for respondent.

Dawne Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the child.

Gische, J.P., Webber, Oing, Singh, JJ.

Order of disposition, Family Court, New York County (Patria Frias–Colon, J.), entered on or about July 24, 2018, which, upon a finding of abandonment, terminated respondent father's parental rights to the subject child and committed custody and guardianship of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.

The finding of abandonment is supported by clear and convincing evidence that the father did not visit the child or communicate with the child or the agency, although able to do so and not prevented or discouraged from doing so by the agency, during the six months immediately preceding the filing of the termination petition (see Social Services Law § 384–b[4][b] ; [5][a] ). "While [an incarcerated] parent of course is not able to visit the child, he or she is still presumed able to communicate absent proof to the contrary" ( Matter of Annette B., 4 N.Y.3d 509, 514, 796 N.Y.S.2d 569, 829 N.E.2d 661 [2005] ).

Here, the agency showed, through the credible testimony of the caseworker assigned to the case, that while it sent the father three letters, it received no communication from him during the six-month period. The father testified that, to the contrary, he mailed the agency seven letters he wanted forwarded to the child during those six months. The court providently determined that even if it were to credit the father's testimony, his attempts to communicate with the child were too sporadic and insubstantial to defeat the finding of abandonment (see e.g. Matter of Christie A.M., 57 A.D.3d 225, 225–226, 869 N.Y.S.2d 35 [1st Dept. 2008] ).

The father's argument that the court improvidently exercised its discretion in failing to hold a dispositional hearing is not preserved for appellate review (see Matter of Jeremiah M. [Sabrina Ann M.], 109 A.D.3d 736, 737, 971 N.Y.S.2d 524 [1st...