Opinion
October 21, 1993
Appeal from the Family Court of Broome County (Ray, J.).
Respondent is the biological father of Gina RR. (born in 1977). In March 1988, Gina was adjudicated a neglected child and placed in petitioner's custody for a period of 12 months; numerous extensions of placement were subsequently granted by Family Court. Thereafter, on or about September 9, 1991, petitioner commenced this proceeding alleging that Gina was an abandoned child within the meaning of Social Services Law § 384-b (5) (a); specifically, petitioner alleged that respondent had failed to initiate and/or maintain any contact with Gina for a substantial period of time including, but not limited to, the six-month period immediately preceding the commencement of this proceeding. At the conclusion of the hearing that followed, at which respondent appeared and testified, Family Court found that Gina was an abandoned child and terminated respondent's parental rights. This appeal by respondent followed.
The neglect petition was filed against Gina's biological mother and then-stepfather and also involved Gina's siblings; none of these individuals, however, are parties to or the subject of the instant proceeding.
We affirm. A child is deemed "abandoned" for purposes of terminating parental rights when the 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" for a period of six months immediately preceding the filing of the petition (Social Services Law § 384-b [a]; [4] [b]; see, Matter of Zagary George Bayne G. [Gregory G.], 185 A.D.2d 320, 320-321, lv denied 80 N.Y.2d 760; Matter of Alexander V. [Alexander W.], 179 A.D.2d 913, 914; Matter of Jasmine T. [Mary U.], 162 A.D.2d 756, 756-757, lv denied 76 N.Y.2d 714). The parent's ability to visit and communicate with the child is presumed unless there is evidence to the contrary (Social Services Law § 384-b [a]; see, Matter of Jasmine T. [Mary U.], supra, at 757).
Here, petitioner established by clear and convincing evidence that respondent abandoned Gina by failing to visit or communicate with either Gina or petitioner during the six months in issue (see generally, Matter of Michael W. [Tannesia W.], 191 A.D.2d 287). Although respondent testified that he was told by one of petitioner's caseworkers in 1988 that he was not allowed to visit Gina, this merely presented a credibility issue which Family Court, having observed the demeanor of the various witnesses firsthand, resolved in petitioner's favor (see, Matter of Milagros P. [Juan P.], 187 A.D.2d 282; Matter of Lyndell M. [Lyndell W.], 182 A.D.2d 623, 623-624). Moreover, even crediting respondent's testimony in this regard, this singular communication with petitioner and isolated attempt to visit Gina does not preclude a finding of abandonment where, as here, the record as a whole supports such a finding by clear and convincing evidence (see, Matter of Zagary George Bayne G. [Gregory G.], 185 A.D.2d 320, 321, supra; Matter of Alexander V. [Alexander W.], 179 A.D.2d 913, 914, supra). Respondent's remaining contentions, including his assertions that he was not provided with adequate notice of this proceeding and was denied a fair hearing, have been examined and found to be lacking in merit.
Mikoll, J.P., Yesawich Jr. and Casey, JJ., concur. Ordered that the order is affirmed, without costs.