Thomas E., Respondent-Appellant. v. <<

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

Matter of JOSEPH E. Herkimer County Department of Social Services, Petitioner-Respondent; Thomas E., Respondent-Appellant.

Decided: March 18, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, MARTOCHE, AND LAWTON, JJ. Peter J. DiGiorgio, Jr., Utica, for Respondent-Appellant. Jacquelyn M. Asnoe, Herkimer, for Petitioner-Respondent. Jhilmil Ghaleb, Law Guardian, Richfield Springs, for Joseph E.

 Family Court properly terminated respondent's parental rights on the ground of abandonment.   A child is abandoned if his or her parent “evinces an intent to forego his or her parental rights and obligations as manifested by his or her 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 [petitioner]” (Social Services Law § 384-b [5][a] ).   Here, respondent was prohibited from contacting his child during the six months prior to the filing of the abandonment petition based on an order of protection, and petitioner further established by clear and convincing evidence that respondent had no contact with petitioner during that six-month period (see § 384-b [3] [g];  [4][b] ).  The testimony of respondent that he had a meeting with two representatives of petitioner during that six-month period merely presented a credibility issue, and we perceive no basis for disturbing the court's resolution of that credibility issue against respondent (see Matter of Shaolin G., 277 A.D.2d 312, 313, 716 N.Y.S.2d 71, lv. denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750 N.E.2d 75;  see also Matter of Taylor O.P., 303 A.D.2d 1024, 757 N.Y.S.2d 194;  Matter of Jamella G., 291 A.D.2d 933, 934, 737 N.Y.S.2d 489).   In any event, even assuming, arguendo, that the court erred in failing to credit respondent's testimony, we would nevertheless conclude that respondent's contact with petitioner during the six-month period at issue was “minimal, sporadic or insubstantial” and thus was insufficient to defeat the petition (Matter of Nahiem G., 241 A.D.2d 632, 633, 659 N.Y.S.2d 950;  see Matter of Christina W., 273 A.D.2d 918, 710 N.Y.S.2d 280;  Matter of Candice K., 245 A.D.2d 821, 822, 666 N.Y.S.2d 791).

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


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