IN RE: CHERIE D. R. (2024)

Order, Family Court, New York County (Grace Oboma–Layat, J.), entered on or about December 11, 2023, which denied respondent father's motion for summary judgment dismissing the petition for termination of his parental rights, unanimously affirmed, without costs.

In support of his motion to dismiss the petition, which was based on abandonment (Social Services Law § 384–b[4][b]) and permanent neglect (Social Services Law § 387–b[7][a]), the father submitted an affidavit with some supporting evidence to show that the reason he was not in communication or contact with the child or agency during the six months preceding the filing of the petition was that she had been wrongfully abducted by her mother from the United Kingdom in September 2018.  As a result, the father asserted, he had been unable to locate the child despite his persistent efforts, including contacting the local police, searching social media, and seeking legal advice.

A parent can rebut the inference of abandonment arising from the parent's failure to communicate with the child by proving that he was “unable to maintain contact with the child” because he could not determine her whereabouts with diligent efforts (see Matter of Michael T.J.K. [Alicia R.], 168 A.D.3d 545, 545, 90 N.Y.S.3d 525 [1st Dept. 2019];  Matter of Anthony M., 195 A.D.2d 315, 316, 600 N.Y.S.2d 37 [1st Dept. 1993]).  Similarly, the statutory requirements of permanent neglect can be rebutted by a showing that the parent's lack of contact and planning for the child's future was due to an inability to ascertain the physical location of the child (see Social Services Law § 387–b[7][a]).

The affidavit and limited documentation submitted by the father raised a defense to the petition which appears valid.  Nevertheless, summary judgment dismissing the petition was not warranted, as questions of fact exist as to whether, despite his diligent efforts, the father was unable to communicate with or plan for the child's future (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Matter of Michael T.J.K., 168 A.D.3d at 545, 90 N.Y.S.3d 525;  Matter of Anthony M., 195 A.D.2d at 316, 600 N.Y.S.2d 37).