Matter of Dimitris J. , 34 N.Y.S.3d 731 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 7, 2016 521249
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In the Matter of DIMITRIS J.,
Alleged to be an Abandoned
Child.
BROOME COUNTY DEPARTMENT OF
SOCIAL SERVICES, MEMORANDUM AND ORDER
Respondent;
SARAH J.,
Appellant.
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Calendar Date: May 27, 2016
Before: McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.
__________
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 a proceeding pursuant to Social Services Law
§ 384-b, to adjudicate Dimitris J. to be an abandoned child, and
terminated respondent's parental rights.
Respondent is the mother of Dimitris J. (born in 2010), who
was removed from respondent's care in March 2013 based upon
allegations of neglect. Petitioner commenced this proceeding to
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terminate respondent's parental rights in January 2015 on the
ground of abandonment. Following a fact-finding and
dispositional hearing, Family Court determined that respondent
had abandoned the child and terminated her parental rights.1
Respondent appeals.
We affirm. "A finding of abandonment is warranted when it
is established by clear and convincing evidence that the parent
failed to visit or communicate with the child or the petitioning
agency 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
and citation omitted], lv denied 23 NY3d 901 [2014]), "although
able to do so and not 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], lv
denied 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 is presumed 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 burden shifts to respondent "to prove an
inability to maintain contact or that . . . she was prevented or
discouraged from doing so by the petitioning agency" (Matter of
Erving BB. [Lynette EE.], 111 AD3d at 1103 [internal quotation
marks and citation omitted]; see Matter of Carter A. [Jason A.],
111 AD3d at 1183).
Petitioner presented the testimony of the child's
caseworker and family specialist who attested 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 they did not impede or discourage her
contact with the child at any point. The caseworker testified
that, just prior to the relevant period, the time for
respondent's weekly Saturday visits with the child was changed at
1
According to Family Court, the father's rights were
terminated in a separate proceeding.
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her request so that she could take the bus, but she did not
attend any of the visits and last visited with him in April 2014.
Respondent visited with her two older children on a weekday but
did not, during those visits or at any other time, ask about
visits with the child or to change her visit schedule with the
child. She did not communicate in any manner with the child
during this period or inquire as to his well-being with the
caseworkers and, while the child's progress was occasionally
mentioned, respondent did not initiate conversations about him or
ask for the foster mother's contact information. Respondent
testified, admitting that she had no contact with the child after
October 2014, but claimed that she had requested visits with him
and asked about him at her visits with her other children. She
testified that, during the first three 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, but admitted that she had avoided visits with him
during the last three months of this period because there was an
outstanding warrant for her arrest. Respondent stated that her
friend drove her to the weekday visits with the other children,
but could not drive her on weekends; respondent admitted that she
did not request that her visits with the child be moved to a
weekday when her friend was available and willing to drive her.
The testimony of petitioner's caseworkers, which Family
Court credited, established by clear and convincing evidence
respondent's abandonment of the child (see Matter of Erving BB.
[Lynette EE.], 111 AD3d at 1103). Although respondent testified
that she lacked transportation to attend visits in the first
three months, she provided no explanation for why she made no
efforts to request a change in the visitation schedule, as she
had done previously, when her friend could drive her; while she
lived within a short walk to the bus stop, she offered no
compelling reason why she could not take the bus to the visits or
request assistance with bus fare. To the extent that respondent
claimed that she inquired about and requested visits with the
child during her visits with her other children, Family Court
credited the caseworkers' testimony to the contrary, and its
determination in that regard is entitled to deference (see Matter
of Dustin JJ. [Clyde KK.], 114 AD3d at 1051). Even if
respondent's claims are credited, "sporadic and infrequent"
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efforts do not defeat a finding of abandonment (Matter of Carter
A. [Jason A.], 111 AD3d at 1183 [internal quotation marks and
citation omitted]). As the record fully supports Family Court's
determination that respondent was able to communicate with the
child or petitioner and to visit him and was not prevented or
discouraged from doing so by petitioner (see Matter of Jazmyne
OO. [Maurice OO.], 111 AD3d 1085, 1087-1088 [2013]), we discern
no basis upon which to disturb the court's determination that she
abandoned the child.
Rose, Devine, Clark and Aarons, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court