Matter of Tamar T.W. (Temorerie T.W.) , 149 A.D.3d 852 ( 2017 )

Matter of Tamar T.W. (Temorerie T.W.) (2017 NY Slip Op 02800)

Matter of Tamar T.W. (Temorerie T.W.)

2017 NY Slip Op 02800

Decided on April 12, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 12, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.

2015-10057
2015-10058
2015-10059
(Docket Nos. B-7521/14, B-7522/14, B-7523/14)

[*1]In the Matter of Tamar T. W. (Anonymous), also known as Tamar W. (Anonymous). Mercyfirst, et al., petitioners-respondents; Temorerie T. W. (Anonymous), also known as Temoreerie W. (Anonymous), also known as Temareris W. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 1)



In the Matter of Ta'laysia T. W. (Anonymous), also known as Talaysia W. (Anonymous), also known as Ta'laysia W. (Anonymous). Mercyfirst, et al., petitioners-respondents; Temorerie T. W. (Anonymous), also known as Temoreerie W. (Anonymous), also known as Temareris W. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 2)



In the Matter of Teleah T. T. J. (Anonymous), also known as Teleah J. (Anonymous), also known as Taleah J. (Anonymous). Mercyfirst, et al., petitioners-respondents; Temorerie T. W. (Anonymous), also known as Temoreerie W. (Anonymous), also known as Temareris W. (Anonymous), respondent-appellant, et al., respondent. (Proceeding No. 3)

Joel Borenstein, Brooklyn, NY, for respondent-appellant.

Warren & Warren, P.C., Brooklyn, NY (Ira L. Eras of counsel), for petitioner-respondent Mercyfirst.

Gail Jacobs, Great Neck, NY, attorney for the children.

DECISION & ORDER

Appeals by the mother from three orders of fact-finding and disposition of the Family Court, Kings County (Lilian Wan, J.) (one as to each child), each dated August 17, 2015. The orders, insofar as appealed from, after fact-finding and dispositional hearings, found that the mother abandoned the subject children, terminated her parental rights, and transferred guardianship and custody of the children to Mercyfirst and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption.

ORDERED that the orders of fact-finding and disposition are affirmed insofar as appealed from, without costs or disbursements.

In 2014, the petitioners commenced these proceedings to terminate the mother's parental rights to the subject children. After fact-finding and dispositional hearings, the Family Court found that the mother abandoned her children, terminated her parental rights, and transferred guardianship and custody of the children to Mercyfirst and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption.

An order terminating parental rights may be granted where the petitioner has established, by clear and convincing evidence, that the parent abandoned the child for the six-month period before the petition was filed (see Social Services Law § 384-b[3][g][i]; [4][b]; Matter of Annette B., 4 NY3d 509, 513; Matter of Peteress Reighly B., 62 AD3d 695, 696). An intent to abandon a child is manifested by the parent's "failure to 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" (Matter of Julius P., 63 NY2d 477, 481; see Matter of Jeremiah Kwimea T., 10 AD3d 691). The burden rests on the parent to maintain contact, and the agency need not show diligent efforts to encourage the parent to visit or communicate with the child (see Matter of Gabrielle HH., 1 NY3d 549, 550; Matter of Julius P., 63 NY2d at 481; Matter of Xtacys Nayarie M. [Jose Ruben M.], 74 AD3d 970, 971).

The petitioner Mercyfirst established, by clear and convincing evidence, that the mother abandoned the subject children during the six-month period before the filing of the petition (see Social Services Law § 384-b[4][b]; Matter of Female F., 40 AD3d 993, 993-994; Matter of Saquan L.E., 19 AD3d 418, 419). The mother's incarceration did not relieve her of her responsibility to maintain contact or communicate with the children or the agency (see Matter of Female F., 40 AD3d at 994; Matter of Jahmir Domevlo J., 8 AD3d 280; Matter of Tashara B., 299 AD2d 356).

The mother's remaining contention is without merit.

DILLON, J.P., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court