Opinion
408 CAF 19-00860
06-12-2020
In the MATTER OF NAJUAN W. Jefferson County Department of Social Services, Petitioner-Respondent; v. Stephon W., Respondent-Appellant. (Appeal No. 2.)
LYNNE M. BLANK, WEBSTER, FOR RESPONDENT-APPELLANT. MICHAEL D. WERNER, WATERTOWN, FOR PETITIONER-RESPONDENT. JUSTIN F. BROTHERTON, WATERTOWN, ATTORNEY FOR THE CHILD.
LYNNE M. BLANK, WEBSTER, FOR RESPONDENT-APPELLANT.
MICHAEL D. WERNER, WATERTOWN, FOR PETITIONER-RESPONDENT.
JUSTIN F. BROTHERTON, WATERTOWN, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent father appeals from a fact-finding order determining that he had abandoned the subject child. In appeal No. 2, he appeals from a final order of disposition that, inter alia, terminated his parental rights on the ground of abandonment.
Initially, appeal No. 1 must be dismissed because the appeal from the dispositional order in appeal No. 2 "brings up for review the propriety of a fact-finding order" ( Matter of Lisa E. [appeal No. 1], 207 A.D.2d 983, 983, 617 N.Y.S.2d 657 [4th Dept. 1994] ; see generally Matter of Nevaeh L. [Katherine L.] , 177 A.D.3d 1400, 1401, 113 N.Y.S.3d 454 [4th Dept. 2019] ).
In appeal No. 2, we reject the father's contention that Family Court erred in determining that he abandoned the child. The evidence at the fact-finding hearing established that, in 2009, the mother failed to return the child to the father's home in Pennsylvania after a weekend visit. That was the last time the father saw the child. Although the mother thereafter contacted the father from blocked telephone numbers and through social media, she only allowed the father to speak with the child occasionally. The father's last conversation with the child was in 2015. Around that time, he filed a petition in Pennsylvania seeking modification of the existing joint custody arrangement between him and the mother. A bench warrant was issued for the mother's arrest, and the father was informed that the child was residing in Jefferson County, New York. The father, however, never initiated a proceeding to modify custody in that county and testified that he was told that there was nothing he could do to obtain custody of the child until after the mother was arrested. In 2016, the child was removed from the mother's care after a neglect petition was filed against her. The father was initially unaware of that petition because petitioner was only able to serve him by publication. He did not learn that the child had been placed in foster care until the filing of the instant termination petition in August 2018.
Pursuant to Social Services Law § 384-b (5) (a), "a child is ‘abandoned’ by his [or her] parent if such 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 agency, although able to do so and not prevented or discouraged from doing so by the agency." A child is deemed abandoned when the parent engages in such behavior "for the period of six months immediately prior to the date on which the petition [was] filed" ( § 384-b [4] [b] ). "In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed" ( § 384-b [5] [a] ; see Matter of Jarrett P. [Jeremy P.] , 173 A.D.3d 1692, 1693, 105 N.Y.S.3d 230 [4th Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5445955 [2019] ; Matter of Madelynn T. [Rebecca M.] , 148 A.D.3d 1784, 1785, 50 N.Y.S.3d 775 [4th Dept. 2017] ). Here, the father does not dispute that he failed to maintain contact with the child for the statutory period. Instead, he asserts that contact with the child was infeasible or discouraged by the agency, and that the court failed to consider the mother's limitation of his contact with the child and petitioner's failure to personally serve him with the neglect petition against the mother. We reject those contentions.
"In the abandonment context, ‘the court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in’ " Social Services Law § 384-b (5) (a) ( Matter of Gabrielle HH. , 1 N.Y.3d 549, 550, 772 N.Y.S.2d 643, 804 N.E.2d 964 [2003], quoting § 384-b [5] [b] ; see Madelynn T. , 148 A.D.3d at 1785, 50 N.Y.S.3d 775 ). Rather, it is the parent's burden to establish that circumstances existed that prevented his or her contact with the child or agency or that the agency discouraged such contact (see Madelynn T. , 148 A.D.3d at 1785, 50 N.Y.S.3d 775 ; see also Gabrielle HH. , 1 N.Y.3d at 550, 772 N.Y.S.2d 643, 804 N.E.2d 964 ).
We conclude that the father failed to meet that burden. Indeed, although the mother removed the child from the father's care and took the child to an undisclosed location in violation of the custody arrangement, the father did not report that violation, make any attempt thereafter to locate the child, or attempt to file a modification petition after his unsuccessful filing in Pennsylvania about six years after the mother left with the child (cf. Matter of John F. [John F., Jr.], 149 A.D.3d 1581, 1582, 53 N.Y.S.3d 778 [4th Dept. 2017] ). Additionally, the father's assertion that he paid for the child's Medicare is unsupported by the record. Moreover, petitioner's "alleged failure to give the father notice that the child was placed in foster care is also insufficient to demonstrate that" contact with the child was infeasible ( Matter of Chartasia Delores H. [Charles H.] , 88 A.D.3d 460, 460, 930 N.Y.S.2d 439 [1st Dept. 2011], lv denied 18 N.Y.3d 803, 2012 WL 86899 [2012] ). Even assuming, arguendo, that petitioner was required to do more than serve the father by publication with the neglect petition that resulted in the child's placement in foster care, we conclude that the father lack of awareness of that petition was not the reason that the father failed to communicate with the child (see Matter of Annette B. , 4 N.Y.3d 509, 514-515, 796 N.Y.S.2d 569, 829 N.E.2d 661 [2004], rearg denied 5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663 [2005] ). Indeed, even after the father was served with the termination petition, he failed to contact the child even though petitioner told him that he could write letters to the child. Although the father contacted the foster parents and spoke with petitioner about the petition, those minimal efforts do not preclude a finding of abandonment (see Matter of Miranda J. [Jeromy J.] , 118 A.D.3d 1469, 1470, 988 N.Y.S.2d 379 [4th Dept. 2014] ; Matter of Michael B. , 284 A.D.2d 946, 946, 726 N.Y.S.2d 508 [4th Dept. 2001] ; Matter of Elizabeth S. , 275 A.D.2d 952, 953, 713 N.Y.S.2d 408 [4th Dept. 2000], lv denied 95 N.Y.2d 769, 722 N.Y.S.2d 472, 745 N.E.2d 392 [2000] ).