In re Devontae

• Decision Date: 30 November 2010
• Citation: 912 N.Y.S.2d 191,78 A.D.3d 610
• Parties: In re Paul Antoine DEVONTAE R., etc., a Dependent Child Under the Age of Eighteen Years, etc., Catholic Guardian Society and Home Bureau, Petitioner-Respondent, Paul R., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 191

78 A.D.3d 610

In re Paul Antoine DEVONTAE R., etc., a Dependent Child Under the Age of Eighteen Years, etc., Catholic Guardian Society and Home Bureau, Petitioner-Respondent, Paul R., Respondent-Appellant.

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

Nov. 30, 2010.

Dora M. Lassinger, East Rockaway, for appellant.

Magovern & Sclafani, New York (Frederick J. Magovern of counsel) for respondent.

TOM, J.P., SAXE, FRIEDMAN, SWEENY, ABDUS-SALAAM, JJ.

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 8, 2009, which, inter alia, upon a finding of permanent neglect, terminated respondent father's parental rights to the subject child and committed his custody and guardianship to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.

Clear and convincing evidence supports the court's finding that despite the agency's diligent efforts, respondent permanently neglected his son ( see Social Services Law § 384-b[7][a] ). The record establishes that although respondent was required to "maintain contact with the child through consistent and regular visitation" ( Matter of Aisha C., 58 A.D.3d 471, 472, 871 N.Y.S.2d 112 [2009], lv. denied 12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087 [2009] ), he did not offer a viable excuse for his failure to visit hisson from June 2006, after the case conference, until October 2006, when he was incarcerated. Respondent's incarceration during the statutory period did not relieve him of his responsibility to communicate with his child ( Matter of Fonchasity H., 57 A.D.3d 1525, 1526, 870 N.Y.S.2d 660 [2008] ), and once respondent did establish contact with the agency via a March 2007 telephone call, a visit between his son and his children with his fiancé was scheduled, but the meeting was never attended. Furthermore, respondent's duty to plan did not abate with his incarceration, and he failed to plan for his child's future by not obtaining appropriate housing ( see Matter of Jazmin Marva B. [Cecile Marva B.], 72 A.D.3d 569, 899 N.Y.S.2d 220 [2010] ).

A preponderance of the evidence shows that the termination of respondent's parental rights was in the child's best interests ( see generally Matter of Star Leslie W., 63 N.Y.2d 136, 147-148, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ). The record shows that the child's best chance for a stable family life lies in his adoption by his foster mother, in whose care he has been since he was two years old and who tends to his needs ( see Matter of Prudical Antonio D., 37 A.D.3d 244, 245, 830 N.Y.S.2d 533 [2007], lv. denied 8 N.Y.3d 813, 836 N.Y.S.2d 553, 868 N.E.2d 236 [2007] ).

Respondent was not denied his due...