Opinion
1363 CAF 17–01462
12-21-2018
In the MATTER OF ARMANI W. Erie County Department of Social Services, Petitioner–Respondent; v. Adifah W., Respondent–Appellant.
EVELYNE A. O'SULLIVAN, EAST AMHERST, FOR RESPONDENT–APPELLANT. ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER–RESPONDENT. DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), ATTORNEY FOR THE CHILD.
EVELYNE A. O'SULLIVAN, EAST AMHERST, FOR RESPONDENT–APPELLANT.
ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER–RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RICHARD L. SULLIVAN OF COUNSEL), ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of abandonment, respondent mother contends that she had sufficient significant, meaningful contact with the child and petitioner to preclude a finding of abandonment. We reject that contention. "A child is deemed abandoned where, for the period six months immediately prior to the filing of the petition for abandonment (see Social Services Law § 384–b [4 ][b] ), a parent ‘evinces an intent to forego his or her parental rights and obligations as manifested by his or her 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]’ " ( Matter of Azaleayanna S.G.-B. [Quaneesha S.G.], 141 A.D.3d 1105, 1105, 34 N.Y.S.3d 847 [4th Dept. 2016], quoting § 384–b [5 ][a] ). Here, despite being afforded the opportunity to visit with the child twice each week, the mother merely delivered items for the child on one occasion at the beginning of the six-month period when the child was not present, visited the child on just two occasions in close succession several months later but failed to visit the child thereafter, and contacted petitioner once by telephone to cancel a visit. We conclude that "those are merely ‘sporadic and insubstantial contacts’ ..., and it is well settled that ‘an abandonment petition is not defeated by a showing of sporadic and insubstantial contacts where[, as here,] clear and convincing evidence otherwise supports granting the petition’ " ( Matter of Kaylee Z. [Rhiannon Z.], 154 A.D.3d 1341, 1342, 61 N.Y.S.3d 781 [4th Dept. 2017], lv denied 30 N.Y.3d 911, 2018 WL 773183 [2018] ; see Matter of Jamal B. [Johnny B. ], 95 A.D.3d 1614, 1615–1616, 945 N.Y.S.2d 472 [3d Dept. 2012], lv denied 19 N.Y.3d 812, 2012 WL 4017424 [2012] ; Matter of Maddison B. [Kelly L.], 74 A.D.3d 1856, 1856–1857, 902 N.Y.S.2d 471 [4th Dept. 2010] ). We further conclude that the mother failed to demonstrate that " ‘there were circumstances rendering contact with the child or [petitioner] infeasible, or that [she] was discouraged from doing so by [petitioner]’ " ( Matter of Madelynn T. [Rebecca M.], 148 A.D.3d 1784, 1785, 50 N.Y.S.3d 775 [4th Dept. 2017] ; see Matter of Drevonne G. [Darrell G.], 96 A.D.3d 1348, 1349, 945 N.Y.S.2d 888 [4th Dept. 2012] ).