Opinion
10-06-2017
In the Matter of KAYLEE Z. Erie County Department of Social Services, Petitioner–Respondent; Rhiannon Z., Respondent–Appellant.
David J. Pajak, Alden, for Respondent–Appellant. Kimberly S. Conidi, Buffalo, for Petitioner–Respondent. David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
David J. Pajak, Alden, for Respondent–Appellant.
Kimberly S. Conidi, Buffalo, for Petitioner–Respondent.
David C. Schopp, Attorney for the Child, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, AND WINSLOW, JJ.
MEMORANDUM:
In this proceeding pursuant to Social Services Law § 384–b, respondent mother appeals from an order that, inter alia, adjudged that she abandoned the subject child. We reject the mother's contention that petitioner failed to establish abandonment. "A child is deemed abandoned where, for the period six months immediately prior to the filing of the petition for abandonment ..., 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, quoting § 384–b [5 ][a]; see § 384–b [4 ][b] ). Petitioner bears the burden of establishing abandonment "by clear and convincing evidence" ( Matter of John F. [John F., Jr.], 149 A.D.3d 1581, 1582, 53 N.Y.S.3d 778 ; see Matter of Annette B., 4 N.Y.3d 509, 514, 796 N.Y.S.2d 569, 829 N.E.2d 661, rearg. denied 5 N.Y.3d 783, 801 N.Y.S.2d 803, 835 N.E.2d 663 ).
Here, the mother admitted in her testimony at the hearing that she had moved to Florida voluntarily after the child was placed in foster care based upon a finding of neglect, that she thereafter had only a single visit with the child, which occurred after the petition herein was filed, and that her only contacts with the child, the caseworker, or the child's foster parent during the six-month period prior to the filing of the petition were several telephone calls and one birthday gift. We conclude that those are merely "sporadic and insubstantial contacts" ( Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d 1050, 1051, 981 N.Y.S.2d 177, lv. denied 23 N.Y.3d 901, 2014 WL 1705650 ), 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 Candice K., 245 A.D.2d 821, 822, 666 N.Y.S.2d 791 ; see Matter of Jamal B. [Johnny B.], 95 A.D.3d 1614, 1615–1616, 945 N.Y.S.2d 472, lv. denied 19 N.Y.3d 812, 2012 WL 4017424 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.