Opinion
2017–02487 2017–02490 Docket No. B–20148–15
10-31-2018
In the MATTER OF HONESTY M.M.M. (Anonymous). Suffolk County Department of Social Services, Respondent; v. Taikeem L.W. (Anonymous), Appellant.
Susan A. DeNatale and Associates, Smithtown, N.Y. (Rachel A. Camillery of counsel), for appellant. Dennis M. Brown, County Attorney, Central Islip, N.Y. (Mara Cella of counsel), for respondent. Robert M. Garcia, Central Islip, NY, attorney for the child.
Susan A. DeNatale and Associates, Smithtown, N.Y. (Rachel A. Camillery of counsel), for appellant.
Dennis M. Brown, County Attorney, Central Islip, N.Y. (Mara Cella of counsel), for respondent.
Robert M. Garcia, Central Islip, NY, attorney for the child.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In a proceeding pursuant to Social Services Law § 384–b, the father appeals from (1) a decision of the Family Court, Suffolk County (Theresa Whelan, J.), dated January 25, 2017, and (2) an order of fact-finding and disposition of the same court, also dated January 25, 2017. The order, upon the decision, made after fact-finding and dispositional hearings, determined that the father abandoned the subject child, terminated his parental rights, and transferred guardianship and custody of the subject child to the Suffolk County Department of Social Services for the purpose of adoption.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Matter of Justine R. [Cara T.], 158 A.D.3d 701, 702, 71 N.Y.S.3d 535 ; Matter of Ania N. [Marzena N.], 138 A.D.3d 862, 28 N.Y.S.3d 345 ; Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
In December of 2015, the Suffolk County Department of Social Services (hereinafter the petitioner) commenced this proceeding to terminate the father's parental rights to the subject child. After fact-finding and dispositional hearings, the Family Court found that the father abandoned the child, terminated his parental rights, and transferred guardianship and custody of the child to the petitioner for the purpose of adoption.
An order terminating parental rights may be granted where the petitioner has established, by clear and convincing evidence, that the parent abandoned the child for the six-month period before the petition was filed (see Social Services Law § 384–b[3][g][i] ; [4][b]; Matter of Annette B., 4 N.Y.3d 509, 513, 796 N.Y.S.2d 569, 829 N.E.2d 661 ; Matter of Peteress Reighly B., 62 A.D.3d 695, 696, 879 N.Y.S.2d 501 ). An intent to abandon a child is manifested by the parent's "failure to visit the child or communicate with the child or the agency although able to do so and not prevented or discouraged from doing so by the agency" ( Matter of Julius P., 63 N.Y.2d 477, 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003 ; see Matter of Jeremiah Kwimea T., 10 A.D.3d 691, 692, 781 N.Y.S.2d 784 ). The burden rests on the parent to maintain contact, and the agency need not show diligent efforts to encourage the parent to visit or communicate with the child (see Matter of Gabrielle HH., 1 N.Y.3d 549, 550, 772 N.Y.S.2d 643, 804 N.E.2d 964 ; Matter of Julius P., 63 N.Y.2d at 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003 ; Matter of Xtacys Nayarie M. [Jose Ruben M.], 74 A.D.3d 970, 971, 901 N.Y.S.2d 856 ).
Here, the petitioner established, by clear and convincing evidence, that the father abandoned the subject child during the six-month period before the filing of the petition (see Social Services Law § 384–b [4 ][b]; Matter of Dayyan J.L. [Dayyan L.], 145 A.D.3d 1007, 44 N.Y.S.3d 191 ; Matter of Saquan L.E., 19 A.D.3d 418, 419, 796 N.Y.S.2d 408 ; Matter of Annette B., 2 A.D.3d 721, 769 N.Y.S.2d 587 ; Matter of Kerry J. , 288 A.D.2d 221, 732 N.Y.S.2d 430 ). Contrary to the father's contention, "[a]n abandonment petition is not defeated by a showing of sporadic and insubstantial contacts where 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 Christopher Rene T., 189 A.D.2d 692, 592 N.Y.S.2d 384 ; Matter of Charles R., 127 A.D.2d 975, 512 N.Y.S.2d 936 ).
Accordingly, we agree with the Family Court's determination that the father abandoned the child, to terminate the father's parental rights, and to transfer guardianship and custody of the child to the petitioner for the purpose of adoption.
RIVERA, J.P., LEVENTHAL, BARROS and BRATHWAITE NELSON, JJ., concur.