Opinion
2011-10-27
In the Matter of BRAIDYN NN., Alleged to be an Abandoned Child.Rensselaer County Department of Social Services, Respondent;Charles OO., Appellant.
Eugene P. Grimmick, Troy, for appellant.Timothy R. Shevy, Rensselaer County Department of Social Services, Troy, for respondent.Cynthia Feathers, Glens Falls, attorney for the child.
Eugene P. Grimmick, Troy, for appellant.Timothy R. Shevy, Rensselaer County Department of Social Services, Troy, for respondent.Cynthia Feathers, Glens Falls, attorney for the child.
STEIN, J.
Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.), entered August 26, 2010, which, in a proceeding pursuant to Social Services Law § 384–b, granted petitioner's motion for summary judgment adjudicating Braidyn NN. to be an abandoned child and terminating respondent's parental rights.
Respondent is the father of the subject child (born in 2005). With respondent's knowledge, the child's mother voluntarily placed the child in petitioner's care and custody when the child was two years old. The mother conditionally surrendered her
parental rights to the child thereafter. During the relevant time frame, respondent visited the child only sporadically.
Petitioner commenced this proceeding seeking to terminate respondent's parental rights on the ground of abandonment, alleging that respondent failed to visit or communicate with the child for the six months immediately prior to the filing of the petition. Petitioner thereafter moved for an order granting summary judgment adjudicating the child to be abandoned by respondent and terminating respondent's parental rights. Respondent now appeals from Family Court's order granting petitioner's motion and terminating respondent's parental rights.
We affirm. To be entitled to summary judgment, petitioner bore the burden of showing as a matter of law that respondent “ ‘failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the date of the filing of the petition, although able to do so and not prevented or discouraged from doing so by the petitioner’ ” ( Matter of Ryan I. [Laurie U.], 82 A.D.3d 1524, 1525, 919 N.Y.S.2d 250 [2011], quoting Matter of Alec B., 34 A.D.3d 1110, 1110, 824 N.Y.S.2d 475 [2006]; accord Matter of Leon CC. [Larry CC.], 86 A.D.3d 764, 765, 927 N.Y.S.2d 446 [2011]; see Social Services Law § 384–b[5] [a] ). Here, petitioner demonstrated through the affidavits of the child's foster parent and one of petitioner's caseworkers, together with supporting documents, that respondent's last contact with the child was a supervised visit conducted on July 29, 2009 —11 months prior to the filing of the instant petition—and that, since that time, respondent has not written to or sought to speak with the child, nor has he made any attempts to schedule a visit with the child.
The record establishes that respondent thereafter failed to confirm or attend eight consecutive scheduled visits with the child.
Petitioner's submissions further reflect that, despite being under no duty to make diligent efforts to encourage the relationship between respondent and the child ( see Matter of Gabriella I. [Jessica J.], 79 A.D.3d 1317, 1318, 912 N.Y.S.2d 763 [2010], lv. denied 16 N.Y.3d 704, 2011 WL 500591 [2011]; Matter of Kaitlyn E. [Lyndsay E.], 75 A.D.3d 695, 697, 904 N.Y.S.2d 562 [2010] ), petitioner made numerous efforts toward that end, to no avail. Among other things, petitioner's caseworker sent respondent a number of letters reminding him of the scheduled visits with the child and, later, of the child's service plan reviews. In each of these letters, the caseworker requested that respondent contact him in order to discuss the child's future. Respondent never contacted petitioner. Based on this evidence, petitioner amply demonstrated that respondent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the date of the filing of the petition, although able to do so and not prevented or discouraged from doing so by petitioner ( see Social Services Law § 384–b[5][a]; Matter of Leon CC. [Larry CC.], 86 A.D.3d at 766, 927 N.Y.S.2d 446; Matter of Ryan I. [Laurie U.], 82 A.D.3d at 1525, 919 N.Y.S.2d 250). Accordingly, the burden shifted to respondent to present a triable issue of fact ( see
We note that respondent's ability to communicate or maintain contact with the child is presumed ( see Social Services Law § 384–b[5] [a]; Matter of Gabriella I. [Jessica J.], 79 A.D.3d at 1318, 912 N.Y.S.2d 763), although such presumption may be rebutted by evidence to the contrary ( see Matter of Leon CC. [Larry CC.], 86 A.D.3d at 766, 927 N.Y.S.2d 446).
Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Matter of Hannah UU., 300 A.D.2d 942, 943–944, 753 N.Y.S.2d 168 [2002], lv. denied 99 N.Y.2d 509, 760 N.Y.S.2d 100, 790 N.E.2d 274 [2003] ).
In opposition to the motion, respondent did not dispute petitioner's evidence that he failed to visit or contact the child for over 11 months, nor did he present evidence that he was unable to do so. Respondent's primary contention is that petitioner discouraged contact between him and the child and frustrated his efforts to seek visitation. However, even reviewing the evidence in the light most favorable to respondent ( see Rought v. Price Chopper Operating Co., Inc., 73 A.D.3d 1414, 1414, 901 N.Y.S.2d 418 [2010] ), such conclusory assertions, without any supporting evidence or examples of instances in which he sought visitation and petitioner thwarted such efforts, are insufficient to create an issue of fact requiring a trial ( see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Thus, we find that Family Court properly granted petitioner's motion for summary judgment determining that respondent abandoned the child.
Nor do we perceive any reason to disturb Family Court's determination that the child's best interests “would not be served by any further delay of the final adjudication of this matter” and, therefore, that respondent's parental rights should be terminated ( see Matter of Jackie B. [Dennis B.], 75 A.D.3d 692, 694, 903 N.Y.S.2d 612 [2010]; Matter of Jacob WW., 56 A.D.3d 995, 998, 868 N.Y.S.2d 348 [2008]; see also Matter of Kyle M., 5 A.D.3d 489, 491, 772 N.Y.S.2d 556 [2004] ). The record establishes, without contradiction, that respondent failed to visit or communicate with the child for a consecutive 11–month period. Moreover, the child had been in foster care for the great majority of his life with foster parents who appear to be loving and willing to adopt him. Finally, “although by no means determinative, this conclusion is in accord with the position advanced by the [attorney for the child]” ( Matter of Siler v. Wright, 64 A.D.3d 926, 929, 882 N.Y.S.2d 574 [2009] ).
To the extent not specifically addressed herein, we have reviewed respondent's remaining contentions and find them to be without merit.
ORDERED that the order is affirmed, without costs.
ROSE, J.P., MALONE JR., KAVANAGH and McCARTHY, JJ., concur.