IN RE: JASMINE J.

Reset A A Font size: Print

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

IN RE: JASMINE J. Erie County Department of Social Services, Petitioner-Respondent; Christopher B., Respondent-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, LUNN, FAHEY, AND PINE, JJ. William D. Broderick, Jr., Elma, for Respondent-Appellant. Joseph T. Jarzembek, Buffalo, for Petitioner-Respondent. David C. Schopp, Law Guardian, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Jasmine J.

 Family Court properly terminated the parental rights of respondent father upon determining that petitioner established by clear and convincing evidence that the father abandoned his child.   Petitioner established that, in the six months immediately preceding the filing of the petition, the father failed to communicate with the child and had contact with petitioner only while in court and through a single letter to the caseworker (see Social Services Law § 384-b[4][b];  [5][a];  Matter of Julius P., 63 N.Y.2d 477, 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003).   That limited contact is insubstantial and does not preclude a finding of abandonment (see Matter of Kyle K., 13 A.D.3d 1162, 787 N.Y.S.2d 765;  Matter of Taylor O.P., 303 A.D.2d 1024, 757 N.Y.S.2d 194;  Matter of Michael B., 284 A.D.2d 946, 726 N.Y.S.2d 508).   Although the father testified at the hearing on the petition that he asked the caseworker for the address of his child's foster mother, that testimony was contradicted by the caseworker's testimony that the father never asked for an address to enable him to write to his child.   The conflicting testimony of the father and the caseworker presented a credibility issue for the court to resolve, and its resolution of credibility issues is entitled to great weight (see Matter of Female F., 40 A.D.3d 993, 837 N.Y.S.2d 192;  see also Matter of Joseph E., 16 A.D.3d 1148, 791 N.Y.S.2d 760).   Further, a finding of abandonment is not precluded based on the fact that the father informed petitioner that he planned that his fiancée would take temporary custody of the child and he was not contacted by petitioner following its unsuccessful attempts to contact his fiancée.   In the context of abandonment as opposed to permanent neglect, petitioner “was not ‘obligated to contact [the father] and initiate efforts to encourage his parental relationship with [his child]’ ” (Matter of Alexander B., 277 A.D.2d 937, 716 N.Y.S.2d 253;  see Julius P., 63 N.Y.2d at 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003).   In addition, the father's “expressions of subjective intent to care for the child at a future time do not preclude a finding of abandonment” (Matter of Lindsey B., 16 A.D.3d 1078, 1078, 791 N.Y.S.2d 261).   We have considered the father's remaining contention and conclude that it is without merit.

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

MEMORANDUM: