IN RE: LILLYANA M. (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Social Services Law § 384-b, respondent father appeals from an order that, inter alia, terminated his parental rights with respect to the subject child on the ground of abandonment. We affirm.

Social Services Law § 384-b (5) (a) provides that “a child is ‘abandoned’ by [their] parent if such parent evinces an intent to forego [their] parental rights and obligations as manifested by [their] 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.” A petition for termination of parental rights on the ground of abandonment may be granted when the parent engages in such behavior “for the period of six months immediately prior to the date on which the petition is filed” (§ 384-b [4] [b]). “In the absence of evidence to the contrary, [the parent's] ability to visit and communicate shall be presumed” (§ 384-b [5] [a]). Here, the evidence at the hearing established that, during the relevant six-month period, the father did not visit with the child, send her cards or gifts, pay any support for her, or communicate with the child's caretakers. The father's sporadic and insubstantial contact with petitioner's caseworkers, which we note was initiated almost entirely by the caseworkers rather than the father, did not preclude the finding of abandonment (see Matter of Tonasia K., 49 A.D.3d 1247, 1248, 852 N.Y.S.2d 881 [4th Dept. 2008]).

We reject the father's contention that petitioner failed to establish abandonment because it discouraged him from having a relationship with the child by not accommodating his request to visit the child in Onondaga County, where he lived, instead of Oswego County, where the child lived; by not suggesting to him that he send the child letters, cards, or gifts; and by never requesting that he pay child support. “In the abandonment context, ‘[a] court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in [Social Services Law § 384-b (5) (a)]’ ” (Matter of Gabrielle HH., 1 N.Y.3d 549, 550, 772 N.Y.S.2d 643, 804 N.E.2d 964 [2003], quoting Social Services Law § 384-b [5] [b]; see Matter of Lundyn S. [Al-Rahim S.], 128 A.D.3d 1406, 1407, 7 N.Y.S.3d 803 [4th Dept. 2015]). Rather, it was the father's burden, which he failed to meet, “to show that there were circumstances rendering contact with the child or agency infeasible, or that he was discouraged from doing so by the agency” (Matter of Regina A., 43 A.D.3d 725, 725, 843 N.Y.S.2d 207 [1st Dept. 2007]; see Matter of Najuan W. [Stephon W.], 184 A.D.3d 1111, 1112, 126 N.Y.S.3d 258 [4th Dept. 2020]; Matter of Miranda J. [Jeromy J.], 118 A.D.3d 1469, 1470, 988 N.Y.S.2d 379 [4th Dept. 2014]). Although the father indicated to a caseworker that he had a medical reason why he could not travel to Oswego County, the documentation he provided in support of that claim was over a year old, and the father was unable, when asked, to provide updated documentation. The evidence at the trial also established that the father was able to travel to Oswego County for court proceedings.

The father's contention that Family Court was biased against him and impermissibly acted as an advocate for petitioner is not preserved for our review (see Matter of Anthony J. [Siobvan M.], 224 A.D.3d 1319, 1319, 204 N.Y.S.3d 817 [4th Dept. 2024]; Matter of Melish v. Rinne, 221 A.D.3d 1560, 1561, 200 N.Y.S.3d 235 [4th Dept. 2023]; Matter of Dominique M., 85 A.D.3d 1626, 1626, 924 N.Y.S.2d 896 [4th Dept. 2011], lv denied 17 N.Y.3d 709, 2011 WL 4089862 [2011]) and is without merit in any event. The fact that the court reserved decision on petitioner's motion to withdraw a prior petition for termination of the father's parental rights does not demonstrate bias (see generally Melish, 221 A.D.3d at 1561, 200 N.Y.S.3d 235). Moreover, “a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial” so long as the court does not “take on the function or appearance of an advocate” (Matter of Yadiel Roque C., 17 A.D.3d 1168, 1169, 793 N.Y.S.2d 857 [4th Dept. 2005] [internal quotation marks omitted]). Here, the court questioned one witness, and the questioning was nonadversarial and served to clarify the witness's testimony (see Dominique M., 85 A.D.3d at 1626, 924 N.Y.S.2d 896; Capodiferro v. Capodiferro, 77 A.D.3d 1449, 1450, 908 N.Y.S.2d 492 [4th Dept. 2010]).

We reject the father's contention that he was denied effective assistance of counsel. “It is axiomatic that, because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings” (Matter of Kelsey R.K. [John J.K.], 113 A.D.3d 1139, 1140, 978 N.Y.S.2d 560 [4th Dept. 2014], lv denied 22 N.Y.3d 866, 2014 WL 1362321 [2014] [internal quotation marks omitted]). Here, we conclude that “the record, viewed in totality, reveals that the father received meaningful representation” (Matter of Carter H. [Seth H.], 191 A.D.3d 1359, 1360, 140 N.Y.S.3d 658 [4th Dept. 2021]; see Matter of Mirah J.P. [Marquis P.], 213 A.D.3d 1219, 1220, 181 N.Y.S.3d 495 [4th Dept. 2023]; Matter of Nykira H. [Chellsie B.-M.], 181 A.D.3d 1163, 1165, 121 N.Y.S.3d 453 [4th Dept. 2020]).