Broome Cnty. Dep't of Soc. Servs. v. Ahmed II. (In re Zakariya HH.)

192 A.D.3d 1361

143 N.Y.S.3d 744

In the MATTER OF ZAKARIYA HH., Alleged to be an Abandoned Child.

Broome County Department of Social Services, Respondent;

v.Ahmed II., Appellant.

530659

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 9, 2021

Decided and Entered: March 18, 2021

Lisa K. Miller, McGraw, for appellant.

Broome County Department of Social Services, Binghamton (Kuredin V. Eytina of counsel), for respondent.

Susan B. McNeil, Brooktondale, attorney for the child.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from an order of the Family Court of Broome County (Pines, J.), entered October 1, 2019, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be abandoned, and terminated respondent's parental rights.

Respondent is the father of the subject child (born in 2016). When the child was born in December 2016, the father was incarcerated – with a then-anticipated release date of August 2020 – and was not aware of the child's birth or that he was the child's father. Three days after the child's birth, before she or the mother had left the hospital, the child was removed from the mother's care, with the mother's consent, and placed in petitioner's custody based upon concerns of derivative neglect (see Family Ct Act § 1021 ).¹ Respondent's paternity was subsequently established in June 2017 and he was thereafter provided written notification that the child was in foster care and, as an identified resource, was further provided with copies of the child's permanency hearing reports and was subsequently able to attend two of the child's permanency hearings. Since the child's removal in December 2016, she has remained in petitioner's custody in the continuous care of the foster parents, who have identified themselves as an adoptive resource.

In April 2019, petitioner commenced this proceeding seeking to terminate respondent's parental rights on the ground of abandonment, alleging that, in the six months preceding its petition, respondent had no contact or communication with the child and no significant contact with petitioner, petitioner's caseworker or the foster parents to inquire about the child's welfare, nor had he been prevented or discouraged from making such contact. Following a fact-finding hearing, Family Court determined that respondent had abandoned the child and terminated his parental rights, freeing the child for adoption. Respondent appeals, and we affirm.

Respondent contends that Family Court erred in determining that he had abandoned the child. We disagree. A parent may be determined to have abandoned a child and his or her parental rights terminated when, in the six months preceding the filing of the petition, 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" ( Social Services Law § 384–b [5][a] ; see Matter of Damien D. [Ronald D.], 176 A.D.3d 1411, 1411, 111 N.Y.S.3d 442 [2019] ; Matter of Kayson R. [Christina S.], 166 A.D.3d 1346, 1346, 88 N.Y.S.3d 626 [2018] ). A parent, even one who is incarcerated, is presumed to be able to maintain contact with his or her child (see Matter of Damien D. [Ronald D.], 176 A.D.3d at 1411–1412, 111 N.Y.S.3d 442 ; Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d 1188, 1189, 51 N.Y.S.3d 240 [2017], lv denied 29 N.Y.3d 913, 2017 WL 2683227 [2017] ). In turn, "[o]nce petitioner establishes that a parent failed to maintain sufficient contact with a child for the statutory period, the burden shifts to the parent to establish that he or she maintained sufficient contact, was unable to do so, or was discouraged or prevented from doing so by petitioner" ( Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1190, 51 N.Y.S.3d 240 [internal quotation marks, ellipsis and citations omitted]; see Matter of Dakota W. [Kimberly X.], 189 A.D.3d 2004, 2007, 137 N.Y.S.3d 818 [2020] ).

The testimony at the fact-finding hearing demonstrated that, in the six months preceding the subject petition, respondent made no contact with either the child, petitioner's case manager, the caseworker for the foster care agency or the child's foster parents to inquire about the child's welfare. Contrary to respondent's assertion, "petitioner was under no obligation to exercise diligent efforts to encourage respondent to establish a relationship with his child" ( Matter of Maria E. [Jermaine D.], 94 A.D.3d 1357, 1358, 943 N.Y.S.2d 249 [2012] ; see Matter of Gabriella I. [Jessica J.], 79 A.D.3d 1317, 1318, 912 N.Y.S.2d 763 [2010], lv denied 16 N.Y.3d 704, 2011 WL 500591 [2011] ; Matter of Arianna SS., 275 A.D.2d 498, 499, 711 N.Y.S.2d 622 [2000] ). Nevertheless, the case manager testified that she sent respondent letters notifying him that the child was in foster care and that he had certain rights and responsibilities with regard thereto and provided him with her contact information as well as that of the foster care agency.² Despite this notification, the case manager, caseworker and the child's foster mother all reported that they had no contact of any kind with respondent in the six months preceding the filing of the instant petition. The foster mother confirmed that the child had not received any letters, cards, gifts or other electronic communications from respondent during the relevant statutory time period, and no evidence was presented that the case manager, caseworker or foster parents prevented or discouraged respondent from making such contact. Based on the foregoing, petitioner established, by clear and convincing evidence, its initial burden on the petition, shifting the burden to respondent to establish that he maintained sufficient contact with the child or was otherwise unable or prevented from doing so (see Matter of Hayden II. [Renee II. – Devan JJ.], 135 A.D.3d 997, 999, 22 N.Y.S.3d 658 [2016], lv denied 27 N.Y.3d 904, ...