IN RE: ALLAOO R. (2026)

MEMORANDUM AND ORDER

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

Memorandum: In these consolidated appeals arising from proceedings pursuant to Social Services Law § 384-b and Family Court Act article 6, respondent-petitioner father appeals in appeal No. 1 from an order that, among other things, terminated his parental rights on the ground of abandonment. In appeal No. 2, the father appeals from an order that dismissed his custody and visitation petition.

We note at the outset that, although the father filed a notice of appeal with respect to both orders, the issues raised in his brief concern only the order that terminated his parental rights in appeal No. 1. The father is therefore deemed to have abandoned any issues concerning the order in appeal No. 2, and we thus dismiss that appeal (see Matter of Leo M. [Alicia M.], 224 AD3d 1293, 1294 [4th Dept 2024], lv denied 42 NY3d 902 [2024]; Matter of Dagan B. [Calla B.] [appeal No. 3], 192 AD3d 1458, 1458-1459 [4th Dept 2021], appeal dismissed 37 NY3d 977 [2021]; see generally Ciesinski v Town of Aurora, 202 AD2d 984, 984 [4th Dept 1994]).

In appeal No. 1, we reject the father's contention that petitioner-respondent Onondaga County Department of Children and Family Services (petitioner) failed to establish that he abandoned the subject child (see generally Social Services Law § 384-b [3] [g] [i]). Social Services Law § 384-b provides that a child is deemed abandoned when, “for the period of six months immediately prior to the date on which the petition [for abandonment] is filed” (§ 384-b [4] [b]), their 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 [petitioner], although able to do so and not prevented or discouraged from doing so by the [petitioner]” (§ 384-b [5] [a]). “In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed” (id.). Petitioner bears the burden of establishing abandonment “by clear and convincing evidence” (Matter of Lundyn S. [Al-Rahim S.], 128 AD3d 1406, 1406 [4th Dept 2015]).

Here, the evidence at the hearing established that, during the relevant six-month period, the father did not visit with the child, did not provide any financial support to the child, did not inquire about the child's medical appointments, and did not communicate with the child's caretakers or caseworker. That evidence was sufficient to establish that the father failed to maintain contact with the child or petitioner for the statutory period (see Matter of Lillyana M. [Rondell M.], 230 AD3d 1568, 1569 [4th Dept 2024]; contra Matter of Khavonyee FF. [Latasha EE.], 198 AD3d 1134, 1136-1137 [3d Dept 2021]). We reject the father's contention that his filing of the custody and visitation petition toward the end of the six-month period and while he was incarcerated precluded a finding of abandonment (see Matter of Peteress Reighly B., 62 AD3d 695, 696 [2d Dept 2009]; Matter of Anthony T., 35 AD3d 1201, 1201-1202 [4th Dept 2006], lv denied 8 NY3d 809 [2007]). Further, we note that the father's period of incarceration does not excuse his failure to contact the child or petitioner (see Matter of Madelynn T. [Rebecca M.], 148 AD3d 1784, 1786 [4th Dept 2017]; Matter of Fonchasity H., 57 AD3d 1525, 1526 [4th Dept 2008]; Matter of Alexander B., 277 AD2d 937, 937 [4th Dept 2000]).

We also reject the father's contention that petitioner prevented and discouraged him from having contact with it or with the child. “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 NY3d 549, 550 [2003], quoting Social Services Law § 384-b [5] [b]; see Lillyana M., 230 AD3d at 1569-1570; Lundyn S., 128 AD3d at 1407). “Rather, it was [the father's] burden, which he failed to meet, to show that there were circumstances rendering contact with the child or [petitioner] infeasible, or that he was discouraged from doing so by [petitioner]” (Matter of Regina A., 43 AD3d 725, 725 [1st Dept 2007]; see Matter of Miranda J. [Jeromy J.], 118 AD3d 1469, 1470 [4th Dept 2014]). The father testified that he did not respond to any attempts by the child's caseworker to communicate with him and that he failed to initiate any communication with petitioner.

Finally, to the extent that the father contends that Family Court should have drawn a negative inference against petitioner because the testifying caseworker did not have personal knowledge of the facts and petitioner did not call the caseworker previously assigned to the father's case to testify, we conclude that such contention is not properly before us because the father failed to move for that relief below (see Matter of A.K. v P.C., 244 AD3d 417, 418 [1st Dept 2025]; see generally Matter of Lil’ Brian J.Z. [Jessica J.], 221 AD3d 1580, 1581 [4th Dept 2023], lv denied 41 NY3d 901 [2024]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court