Opinion
2012-12-20
In re JASIAIA LEW R., etc., a Dependent Child Under Eighteen Years of Age, etc., Aylyn R., Respondent–Appellant, Catholic Guardian Society & Home Bureau, Petitioner–Respondent.
Geoffrey P. Berman, Larchmont, for appellant. Joseph T. Gatti, New York, for respondent.
Geoffrey P. Berman, Larchmont, for appellant. Joseph T. Gatti, New York, for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
, J.P., SAXE, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about November 14, 2011, which, upon a fact-finding determination that respondent mother abandoned the subject child, terminated her parental rights and committed custody and guardianship of the child to petitioner agency and the Commissioner of Social Services for the purpose of adoption, unanimously affirmed, without costs.
Clear and convincing evidence established that respondent failed to visit or communicate with the child or the agency for the six-month period immediately preceding the filing of the petition, which gave rise to a presumption of abandonment ( seeSocial Services Law § 384–b[5][a]; Matter of Omar Saheem Ali J. [Matthew J.], 80 A.D.3d 463, 914 N.Y.S.2d 154 [1st Dept. 2011];Matter of Chaka F., 220 A.D.2d 310, 632 N.Y.S.2d 552 [1st Dept. 1995] ). The agency's caseworker provided credible testimony that during the relevant time period, respondent never visited the child at the agency, never contacted the agency concerning the child, and did not attend a visit scheduled for a drug treatment referral, at which time she was to have also seen the child. The lone contact between respondent and the child during the relevant time period was initiated by the foster mother so as to obtain respondent's permission to take the child on a vacation. Respondent's claim that she once visited the child at the foster mother's home was uncorroborated, as were her claims that she called the foster mother several times concerning the child and that she once sent a friend to deliver clothing and money. The court's rejection of respondent's testimony is entitled to deference ( see Matter of Jared S. [Monet S.], 78 A.D.3d 536, 911 N.Y.S.2d 339 [1st Dept. 2010],lv. denied16 N.Y.3d 705, 2011 WL 589734 [2011] ). Moreover, even assuming the veracity of respondent's claims, such efforts constituted only sporadic minimal contacts that were insufficient to preclude a finding of abandonment ( see Matter of Elvis Emil J.C., 43 A.D.3d 710, 841 N.Y.S.2d 557 [1st Dept.],lv. denied9 N.Y.3d 814, 848 N.Y.S.2d 25, 878 N.E.2d 609 [2007];Matter of Female W., 271 A.D.2d 210, 706 N.Y.S.2d 98 [1st Dept. 2000] ).
Respondent's arguments that her parental rights should not have been terminated and that the petition should have been dismissed are raised for the first time on appeal ( see Matter of Matthew Niko M. [Niko M.], 85 A.D.3d 544, 926 N.Y.S.2d 411 [1st Dept. 2011] ). In any event, a preponderance of the evidence established that it was in the child's best interest to terminate respondent's parental rights so that he could be freed for adoption by his foster mother, the only parent he has ever known ( see Matter of Star Leslie W., 63 N.Y.2d 136, 147–148, 481 N.Y.S.2d 26, 470 N.E.2d 824 [1984] ).