In re Angeles

• Decision Date: 27 November 2013
• Parties: In the Matter of CARTER A., Alleged to be an Abandoned Child. Cortland County Department of Social Services, Respondent; Jason A., Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1181

977 N.Y.S.2d 415

2013 N.Y. Slip Op. 07891

In the Matter of CARTER A., Alleged to be an Abandoned Child. Cortland County Department of Social Services, Respondent; Jason A., Appellant.

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

Nov. 27, 2013.

Bruce Evans Knoll, Albany, for appellant.

Ingrid Olsen–Tjensvold, Cortland County Department of Social Services, Cortland, for respondent.

Donna C. Chin, Ithaca, attorney for the child.

Before: ROSE, J.P., STEIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from an order of the Family Court of Cortland County (Campbell, J.), entered October 12, 2012, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate Carter A. to be an abandoned child, and terminated respondent's parental rights.

Respondent is the father of a child (born in 2011). In October 2011, the child was removed from the custody of respondent and the child's mother, and neglect proceedings were filed against both parents. The child lived with relatives until January 2012, when he was placed in petitioner's custody, and he has since resided in foster care. In April 2012, upon respondent's default, Family Court issued an order finding that he had neglected the child. In June 2012, petitioner commenced this abandonment proceeding against him. Following a dispositional hearing in the neglect proceeding, Family Court directed that the child remain in petitioner's custody and ordered petitioner to provide respondent—who had been incarcerated in May 2012—with supervised visitation upon his written request. In September 2012, Family Court conducted a combined fact-finding and dispositional hearing in the abandonment proceeding, determined that respondent had abandoned the child, and terminated his parental rights. Respondent appeals.

We agree with Family Court that petitioner demonstrated by clear and convincing evidence that, during the six-month period immediately before the abandonment petition was filed, respondent “evince[d] an intent to forego his ... parental rights and obligations as manifested by his ... failure to visit the child and communicate with the child or [petitioner], although able to do so and not prevented or discouraged from doing so by [petitioner]” (Social Services Law § 384–b [5][a]; see Matter of Maria E. [Jermaine D.], 94 A.D.3d 1357, 1357–1358, 943 N.Y.S.2d 249 [2012] ). Respondent's ability to maintain contact with the child was presumed, even after he was incarcerated ( see Matter of Ryan Q. [Eric Q.], 90 A.D.3d 1263, 1264, 935 N.Y.S.2d 179 [2011], lv. denied18 N.Y.3d 809, 944 N.Y.S.2d 480, 967 N.E.2d 705 [2012]; Matter of Jamaica M. [Hakeem N.], 90 A.D.3d 1105, 1106, 934 N.Y.S.2d 560 [2011], lv. denied18 N.Y.3d 806, 940 N.Y.S.2d 215, 963 N.E.2d 792 [2012] ). Petitioner's witnesses testified that, when the six-month period began, respondent was scheduled to visit the child once each week, but that he did so only twice in December 2011, and never thereafter. During January 2012, he failed to respond to several messages from petitioner's caseworkers about the missed visits. A caseworker visited his home and was then advised that respondent had been arrested; he did not respond to her subsequent communications. Later in January 2012, the caseworker visited his home again and, this time, met respondent, who stated that he planned to attend a scheduled visit later that day. He did not appear for the visit, nor answer the caseworker's subsequent letters and messages. In April 2012, at an unrelated court appearance, respondent told petitioner's supervising caseworker that he had not visited the child because he believed that his parental rights had already been terminated. The supervisor explained that this was not the case and offered to schedule a visit that would accommodate respondent's work schedule. Respondent did not follow up, and did not answer the supervisor's subsequent messages. He did not send any letters, gifts or cards to the child at any time. Petitioner's workers testified that, except when respondent was incarcerated, they were often unable to find him, as he did not keep them informed of several changes in his address during the pertinent time period.

Respondent's two visits with the child in December 2011 do not preclude a finding of abandonment. They amount to nothing more than “sporadic and infrequent, insubstantial contacts,” and both were initiated by petitioner (Matter of Jamal B. [Johnny B.], 95 A.D.3d 1614, 1615–1616, 945 N.Y.S.2d 472 [2012], lv. denied19 N.Y.3d 812, 959 N.Y.S.2d 125, 982 N.E.2d 1259 [2012]; see Matter of Jacob WW., 56 A.D.3d 995, 997, 868 N.Y.S.2d 348 [2008] ). Petitioner's caseworkers testified that he never contacted them; Family Court refused to credit respondent's testimony that he attempted to do so, and we defer to this assessment ( see Matter of Leon CC. [Larry CC.], 8–6 A.D.3d 764, 766, 927 N.Y.S.2d 446 [2011], lv. denied17 N.Y.3d 714, 933 N.Y.S.2d 655, 957 N.E.2d 1159 [2011] ). The burden thus shifted to respondent to demonstrate that he was unable to maintain contact with the child or was prevented or discouraged from doing so ( see Matter of Jackie B. [Dennis B.], 75 A.D.3d 692, 693, 903 N.Y.S.2d 612 [2010] ), and he failed to satisfy this burden. The record does not support respondent's testimony that orders of protection discouraged him from visiting the child, but instead demonstrates that petitioner repeatedly sought to encourage him to do so. The requirement to request visitation in writing was a “reasonable precondition” given respondent's ongoing failure to visit or contact the child (Matter of Alec B., 34 A.D.3d 1110, 1111, 824 N.Y.S.2d 475 [2006] ) and, in any event, was not instituted until after the six-month period expired. Accordingly, Family Court properly found that respondent had abandoned the child.

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