Schenectady Cnty. Dep't of Soc. Servs. v. Sayyid PP. (In re Syri'annah PP.)

212 A.D.3d 1005

181 N.Y.S.3d 753

In the MATTER OF SYRI'ANNAH PP. and Another, Alleged to be Abandoned Children.

Schenectady County Department of Social Services, Respondent;

v.Sayyid PP., Appellant.

533257

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

Calendar Date: December 14, 2022

Decided and Entered: January 19, 2023

Michelle I. Rosien, Philmont, for appellant.

Christopher H. Gardner, County Attorney, Schenectady (Michael R. Godlewski of counsel), for respondent.

Veronica Reed, Schenectady, attorney for the children.

Before: Egan Jr., J.P., Pritzker, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the Family Court of Schenectady County (Kevin A. Burke, J.), entered April 7, 2021, which, among other things, granted petitioner's application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject children to be abandoned, and terminated respondent's parental rights.

Respondent is the father of two children (born in 2012 and 2016). Both children resided with the mother until February 2019, when they were temporarily removed from her custody and placed in the care and custody of petitioner. Shortly thereafter, petitioner filed petitions alleging that the children were neglected by both parents.¹ Due to the removal and the neglect petition, a visitation schedule with the children was established for respondent and subsequently handled by a coordinator for a third-party supervised visitation program. In October 2019, after the mother entered an admission to a finding that she had neglected the children, and based upon the allegations by a caseworker that respondent had missed several scheduled visitations with the children over the prior six months, petitioner withdrew the neglect petition against respondent and filed the first abandonment petition against him.

Thereafter, respondent was discharged from the supervised visitation program and no further visits with the children were scheduled. In December 2019, respondent sought to resume visitation, which was opposed by petitioner and the former attorney for the children (hereinafter AFC). Family Court (Blanchfield, J.) issued a temporary order suspending visitation between respondent and the children, which ultimately became final after a hearing in January 2020. Although further hearings were scheduled, in March 2020 court proceedings were disrupted by the pandemic caused by the coronavirus known as COVID–19.

When proceedings resumed in July 2020, respondent filed several motions to return the children, to intervene in the neglect petition against the mother and to terminate the placement of the children. After the matter was reassigned, Family Court (Burke, J.) indicated an intention to "restart the action." On August 21, 2020, petitioner filed the second abandonment petition against respondent and sought to withdraw the first abandonment petition. After strenuous objection by respondent, Family Court granted such withdrawal but permitted respondent to incorporate, as part of his defense to the newly-filed abandonment proceeding, the relevant time period preceding the filing of the first abandonment proceeding.² Following a fact-finding hearing, Family Court adjudged the children to have been abandoned by respondent, terminated his parental rights and committed guardianship and custody to petitioner. Respondent appeals.

Termination of parental rights on the ground of abandonment is authorized by Social Services Law § 384–b (4)(b). The salutary function of this section is to prevent children from "unnecessarily protracted stays" in foster care, while "assuring that the rights of the birth parent are protected ... [and,] where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child[ren] by terminating parental rights and freeing the child[ren] for adoption" ( Social Services Law § 384–b [1][b] ). To that end, "[a] finding of abandonment is warranted when it is established by clear and convincing evidence that, during the six-month period immediately prior to the date of the filing of the petition, a parent evinces an intent to forego his or her parental rights as manifested by his or her failure to visit or communicate with the child or the petitioner, although able to do so and not prevented or discouraged from doing so by that petitioner" ( Matter of Jaxon UU. [Tammy I.–Nicole H.], 193 A.D.3d 1269, 1271, 147 N.Y.S.3d 713 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]). "Once the petitioner establishes that a parent failed to maintain sufficient contact with a child for the statutory period of six months, 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 the petitioner" ( Matter of Joseph D. [Joseph PP.], 193 A.D.3d 1290, 1291, 147 N.Y.S.3d 231 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]).

Here, petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights (see Matter of Khavonye FF. [Latasha EE.], 198 A.D.3d 1134, 1136–1137, 156 N.Y.S.3d 477 [3d Dept. 2021] ; see also Matter of Mason H. [Joseph H.], 31 N.Y.3d 1109, 1110, 80 N.Y.S.3d 211, 105 N.E.3d 350 [2018] ). The record demonstrates that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children's placement. During at least one appearance, respondent remarked that he would continue to "battle" for the return of his children, even prompting Family Court to candidly admit that respondent has been an active participant during the entire proceeding (see Matter of Grace E.W.-F. [Zanovia W.], 205 A.D.3d 812, 813, 167 N.Y.S.3d 548 [2d Dept. 2022], lvs denied 39 N.Y.3d 901, 176 N.Y.S.3d 852, 197 N.E.3d 1291 [2022]). Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The record...