In re Le'Airra CC.

Decision Date02 December 2010
Citation911 N.Y.S.2d 699,79 A.D.3d 1203
PartiesIn the Matter of LE'AIRRA CC., Alleged to be an Abandoned Child. Albany County Department of Children, Youth and Families, Respondent; Christopher DD., Appellant.
CourtNew York Supreme Court — Appellate Division

Bruce E. Knoll, Albany, for appellant.

Raymond White, Albany County Department of Children, Youth and Families, Albany, for respondent.

Sharon Lee McNulty, Albany, attorney for the child.

Before: CARDONA, P.J., ROSE, LAHTINEN, MALONE JR. and McCARTHY, JJ.

CARDONA, P.J.

Appeal from an order of the Family Court of Albany County (Maney, J.), entered January 26, 2010, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate Le'e'Airra CC. an abandoned child, and terminated respondent's parental rights.

Respondent, the father of Le'Airra CC. (born in 2008), was incarcerated at the time of her birth and remained incarcerated throughout these proceedings. Soon after the child's birth, petitioner sent respondent a letter at the correctional facilitywhere he was incarcerated informing him of the child's placement in foster care as well as his rights and obligations as her father. Shortly thereafter, respondent wrote a letter to the caseworker, Michelle Brodhead, expressing his desire to talk to a caseworker and to be informed about the child's placement. Brodhead did not respond to the letter. Approximately two months later, in October 2008, respondent called Brodhead and she informed him that the child was in petitioner's care in an Albany County foster home, but she did not give him the foster parents' address or telephone number. They also discussed the plan that needed to be made for the child's future. Respondent called Brodhead again in November 2008 and had a similar discussion. Thereafter, petitioner sent respondent monthly status letters as well as the permanency reports relating to the child. However, respondent did not contact petitioner again until after this proceeding, which seeks to terminate his parental rights on the ground of abandonment, was commencedin July 2009. Following a hearing, Family Court granted the petition, prompting this appeal.

A parent will be found to have abandoned his or her child when, for the six months immediately preceding the date of filing of the petition, he or she fails to visit or communicate with the child or the agency although able to do so and not prevented or discouraged by the agency ( see Social Services Law § 384-b [4][b]; [5][a]; Matter of Annette B., 4 N.Y.3d 509, 513-514, 796 N.Y.S.2d 569, 829 N.E.2d 661 [2005] ). Although an incarcerated parent is unable to visit the child, the ability to communicate is presumed absent proof to the contrary ( see Matter of Annette B., 4 N.Y.3d at 514, 796 N.Y.S.2d 569, 829 N.E.2d 661).

Here, respondent admitted at trial that he did not contact the child or petitioner during the six-month period immediately preceding the filing of the petition-specifically, January 10, 2009 to July 10, 2009. Although he claims to have requested information about the child either personally or through counsel when appearing in court on different matters, and notes that he read the letters and permanency reports sent to him by petitioner, we do not agree with his contention that such minimal and insubstantial contacts are sufficient to preclude a determination of abandonment ( see Matter of Kerrianne AA. [Linda AA.], 1 A.D.3d 835, 837, 767 N.Y.S.2d 308 [2003], lv. denied 1 N.Y.3d 507, 776 N.Y.S.2d 222, 808 N.E.2d 358 [2004] ). Nor are we persuaded that petitioner discouraged respondent's attempts to communicate with Brodhead or, through her, with the child ( see Social Services Law § 384-b [5][a] ) or that communication was not feasible. Although there were...

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6 cases
  • In re Colby II.
    • United States
    • New York Supreme Court — Appellate Division
    • June 23, 2016
    ...135 A.D.3d 997, 999, 22 N.Y.S.3d 658 [2016], lv. denied 27 N.Y.3d 904, 2016 WL 1692071 [2016] ; Matter of Le'Airra CC. [Christopher DD.], 79 A.D.3d 1203, 1204, 911 N.Y.S.2d 699 [2010], lv. denied 16 N.Y.3d 706, 2011 WL 652522 [2011] ). Furthermore, contrary to respondent's contention, petit......
  • Harrison v. Westview Partners, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • December 2, 2010
    ...834 N.Y.S.2d 62, 865 N.E.2d 1228; Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d at 245-246, 196 N.Y.S.2d 945, 164 N.E.2d 832; see also 79 A.D.3d 1203City of New York v. Delafield 246 Corp., 236 A.D.2d 11, 25-26, 662 N.Y.S.2d 286 [1997], lv. denied 91 N.Y.2d 811, 671 N.Y.S.2d 715, 694 N.E......
  • Schenectady Cnty. Dep't of Soc. Servs. v. Hakeem N. (In re Jamaica M.)
    • United States
    • New York Supreme Court — Appellate Division
    • December 1, 2011
    ...omitted]; see Matter of Annette B., 4 N.Y.3d at 513, 796 N.Y.S.2d 569, 829 N.E.2d 661; Matter of Le'Airra CC. [Christopher DD.], 79 A.D.3d 1203, 1204, 911 N.Y.S.2d 699 [2010], lv. denied 16 N.Y.3d 706, 2011 WL 652522 [2011] ). Here, it is undisputed that respondent had no contact with his c......
  • Sullivan Cnty. Dep't of Family Servs. v. Joseph PP. (In re Joseph D.)
    • United States
    • New York Supreme Court — Appellate Division
    • April 29, 2021
    ...of Colby II. [Chalmers JJ.], 140 A.D.3d 1484, 1485, 34 N.Y.S.3d 522 [2016] ; 147 N.Y.S.3d 233 Matter of Le'Airra CC. [Christopher DD.], 79 A.D.3d 1203, 1204, 911 N.Y.S.2d 699 [2010], lv denied 16 N.Y.3d 706, 2011 WL 652522 [2011] ). "Once [the] petitioner establishes that a parent failed to......
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