Opinion
2011-10-4
In re CHARTASIA DELORES H.,A Dependent Child Under the Age of Eighteen years, etc.,Charles H., Respondent–Appellant,Saint Dominic's Home, Petitioner–Respondent.
Neal D. Futerfas, White Plains, for appellant.Warren & Warren, P.C., Brooklyn (Ira L. Eras of counsel), for respondent.Tamara A. Steckler, The Legal Aid Society, New York (Judith Waksberg of counsel), attorney for the child.
Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about July 14, 2010, which, upon a fact-finding that respondent father had abandoned the subject child, terminated respondent's parental
rights and committed custody and guardianship of the child to the petitioner agency and the Commissioner of the Administration for Children's Services for the purpose of adoption, unanimously affirmed, without costs.
Clear and convincing evidence supports the court's finding that respondent abandoned the subject child ( see Social Services Law § 384–b[4][b]; [5]; Matter of Annette B., 4 N.Y.3d 509, 513–514, 796 N.Y.S.2d 569, 829 N.E.2d 661 [2005] ). Respondent admitted that he did not have any contact with the child, agency or court during the six-month period prior to the filing of the petition to terminate his parental rights ( see Annette B., 4 N.Y.3d at 514, 796 N.Y.S.2d 569, 829 N.E.2d 661; Matter of Shavenon Edwin N. [Francisco N.] ), 84 A.D.3d 444, 444, 922 N.Y.S.2d 65 [2011] ). Under the circumstances, the father's subjective intent not to abandon the child does not preclude a determination that he abandoned the child ( see Social Services Law § 384–b [5][b] ). Moreover, no showing of diligent efforts by the agency to encourage the father's relationship with the child is necessary ( see id.). The father's incarceration does not excuse his failure to maintain contact with the child ( see Annette B., 4 N.Y.3d at 514, 796 N.Y.S.2d 569, 829 N.E.2d 661). The agency's alleged failure to give the father notice that the child was placed in foster care is also insufficient to demonstrate that it was not feasible for him to contact the child ( see id. at 514–515, 796 N.Y.S.2d 569, 829 N.E.2d 661; Matter of Ateshia Diamond W., 194 A.D.2d 367, 367–368, 598 N.Y.S.2d 260 [1993] ).
A preponderance of the evidence supports the court's determination that the child's best interests would be served by terminating the father's parental rights so as to free the child for adoption by her foster mother ( 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] ). The father's prison sentence will not be complete until the child is an adult. In addition, the father's mother, who also sought custody of the child, expressed reservations about her ability to care for the child. By contrast, the foster mother, with whom the child has resided for several years, is eager to adopt the child and has provided a stable and loving foster home in which the child has thrived.
ANDRIAS, J.P., FRIEDMAN, RENWICK, RICHTER, MANZANET–DANIELS, JJ., concur.