Opinion
326 CAF 13-01641
03-20-2015
In the Matter of ANTHONY C.S., Dominic V.S. and Noah E.S. Monroe County Department of Human Services, Petitioner–Respondent; Joshua S., Sr., Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Courtney S. Radick of Counsel), Pro Bono Appeals Program, Oswego, for Respondent–Appellant. Merideth Smith, County Attorney, Rochester (Carol L. Eisenman of Counsel), for Petitioner–Respondent. Fares A. Rumi, Attorney for the Children, Rochester.
Timothy P. Donaher, Public Defender, Rochester (Courtney S. Radick of Counsel), Pro Bono Appeals Program, Oswego, for Respondent–Appellant.
Merideth Smith, County Attorney, Rochester (Carol L. Eisenman of Counsel), for Petitioner–Respondent.
Fares A. Rumi, Attorney for the Children, Rochester.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.
Opinion
MEMORANDUM:In this proceeding pursuant to Social Services Law § 384–b, respondent father appeals from a second amended order that, inter alia, terminated his parental rights with respect to the subject children on the ground of abandonment. Contrary to the father's contention, petitioner established abandonment by the requisite clear and convincing evidence, by establishing that the father “evince[d] an intent to forego his ... parental rights and obligations” for the six-month period before the filing of the instant petition (Social Services Law § 384–b[5][a] ; see § 384–b[4] [b] ; 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 ; Matter of Julius P., 63 N.Y.2d 477, 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003 ). “The record reflects that, among other things, [the father] did not make any visits to the children during the [first five months of the] six-month period prior to commencement of the abandonment proceeding despite having a right to weekly visitation. During such time frame, he availed himself of other travel and vacations, but elected not to see his children” (Matter of Jasper QQ., 64 A.D.3d 1017, 1020, 883 N.Y.S.2d 344, lv. denied 13 N.Y.3d 706, 2009 WL 2998109 ), and failed to communicate with them. Furthermore, although the father was incarcerated for the final month of the six-month period and “of course [was] not able to visit the child[ren at that time], he ... is still presumed able to communicate absent proof to the contrary” (Annette B., 4 N.Y.3d at 514, 796 N.Y.S.2d 569, 829 N.E.2d 661 ), and petitioner established that the father did not communicate with the children or their foster parents during the final month of the six-month period. Insofar as the father contends that he contacted the children's caseworker and requested visitation while he was incarcerated during the final month of the six-month period, we note that “[t]he conflicting testimony of the father and the caseworker presented a credibility issue for [Family C]ourt to resolve, and its resolution of credibility issues is entitled to great weight” (Matter of Jasmine J., 43 A.D.3d 1444, 1445, 844 N.Y.S.2d 533 ). Contrary to the father's contention, the evidence establishing that he engaged in “ ‘minimal, sporadic or insubstantial contacts [is not] sufficient to defeat [the] otherwise viable claim of abandonment’ ” (Matter of Maddison B. [Kelly L.], 74 A.D.3d 1856, 1856–1857, 902 N.Y.S.2d 471 ; see Matter of Miranda J. [Jeromy J.], 118 A.D.3d 1469, 1470, 988 N.Y.S.2d 379 ; Matter of Joseph E., 16 A.D.3d 1148, 1149, 791 N.Y.S.2d 760 ). Similarly, his single payment of partial child support arrears “under the circumstances of this case ... does not constitute communication with the child[ren] or petitioner sufficient ‘to defeat an otherwise viable claim of abandonment’ ” (Matter of Melerina M. [Andrew A.], 118 A.D.3d 1505, 1507, 988 N.Y.S.2d 388, lv. denied 24 N.Y.3d 905, 2014 WL 4636896 ).
It is hereby ORDERED that the second amended order so appealed from is unanimously affirmed without costs.