IN RE: LOVELL RAESHAWN McC. (Anonymous)

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

IN RE: LOVELL RAESHAWN McC. (Anonymous), a/k/a Lovell McC. (Anonymous). Little Flower Children's Services, respondent-appellant; Shawn Dana F. (Anonymous), a/k/a Shawn McC. (Anonymous), et al., appellants-respondents.

Decided: September 29, 2003

ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE and BARRY A. COZIER, JJ. Helene Chowes, New York, NY, for appellant-respondent Shawn Dana F., a/k/a Shawn McC. Frank A. Buono, Brooklyn, NY, for appellant-respondent Arthur McC. Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), for respondent-appellant. Steven Greenfield, Great Neck, NY, Law Guardian for the child.

In a proceeding pursuant to Social Services Law § 384–b to terminate parental rights on the ground of abandonment, the parents, Shawn Dana F., a/k/a Shawn McC. and Arthur McC., separately appeal, as limited by their respective briefs, from so much of an order of fact-finding and disposition of the Family Court, Queens County (Hunt, J.), dated April 23, 2001, as, after fact-finding and dispositional hearings, found that they abandoned the subject child, terminated their parental rights, and transferred custody and guardianship rights jointly to the petitioner, Little Flower Children's Services, and the Commissioner of Social Services of the City of New York for the purpose of adoption, and the petitioner cross-appeals from so much of the same order as granted the application of Shawn McC. to permit the parents and a sibling to continue biweekly visitation with the subject child pending further order of the court.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the application of Shawn McC. to permit the parents and a sibling to continue biweekly visitation with the subject child pending further order of the court and substituting therefor a provision denying that application and referring the issue of visitation between the subject child and her sibling “P.J.” to the court hearing the adoption petition;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

 The Family Court properly determined that there was clear and convincing proof that the father had abandoned the child by failing to visit or communicate with her during the six months preceding the date on which the petition was filed.   The father failed to offer any evidence to rebut the presumption that he was able to do so, or that the Administration for Children's Services (hereinafter the ACS) or the petitioner prevented or discouraged him from doing so (see Social Services Law § 384–b[5];  Matter of Julius P., 63 N.Y.2d 477, 481, 483 N.Y.S.2d 175, 472 N.E.2d 1003;  Matter of Joseph S., 298 A.D.2d 588, 748 N.Y.S.2d 684;  Matter of T. Children, 284 A.D.2d 401, 726 N.Y.S.2d 276;  Matter of Nahiem G., 241 A.D.2d 632, 659 N.Y.S.2d 950).

 The Family Court also properly determined that there was clear and convincing proof that the mother had abandoned the child.   The mother did not dispute that she did not visit or communicate with the child before the petition was filed, and she failed to rebut the presumption that she was able to do so.   There was no evidence that her “drug use so permeated her life that such contact [with the child] was not feasible” (Matter of Crystal C., 219 A.D.2d 601, 602, 631 N.Y.S.2d 376).   The mother was aware that the child had been placed with the ACS, and she was familiar with the foster care system as she had other children in foster care.   Moreover, there was no evidence that the ACS or the petitioner prevented or discouraged her from communicating with the child.   The petitioner, having determined to proceed on the ground of abandonment, was not obligated to prove that diligent efforts were made to encourage and strengthen the parental relationship (see Matter of Anonymous, 40 N.Y.2d 96, 103, 386 N.Y.S.2d 59, 351 N.E.2d 707;  Matter of Tony Reyes W., 266 A.D.2d 222, 697 N.Y.S.2d 690;  Matter of John T., 260 A.D.2d 642, 688 N.Y.S.2d 697).

 The evidence elicited at the dispositional hearing established that it was in the child's best interest to terminate the parents' rights and to free the child for adoption by the foster mother, with whom she had resided since she was two weeks old (see Matter of Tenisha T., 302 A.D.2d 534, 755 N.Y.S.2d 277;  Matter of St. Christopher–Ottillie v. Troy Donnell M., 210 A.D.2d 233, 620 N.Y.S.2d 262).   While we need not and do not reach the issue of whether a suspended judgment is a permissible disposition in a proceeding pursuant to Social Services Law § 384–b(4)(b), nonetheless, we conclude that the Family Court properly rejected the parents' request for a suspended judgment to enable them to develop a relationship with the child (see Matter of Shaka Efion C., 207 A.D.2d 740, 741, 616 N.Y.S.2d 620).   The foster mother was able to provide the child with a permanent, stable home, and the Family Court recognized that it would be traumatic for the child to remove her from the only home she had ever known.

 We conclude, however, that the Family Court erred in granting the mother's application to permit the parents and a sibling, “P.J.,” to continue biweekly visitation with the child pending further order of the court.   There is no statutory authorization for a court to order continued visitation with the parents once their rights are terminated in an abandonment proceeding pursuant to Social Services Law § 384–b(4)(b) (see Matter of Gregory B., 74 N.Y.2d 77, 91, 544 N.Y.S.2d 535, 542 N.E.2d 1052;  Matter of Cheyanne M., 299 A.D.2d 162, 753 N.Y.S.2d 360).   Although postadoption sibling visitation is permissible pursuant to Domestic Relations Law § 71, the court should determine whether such visitation is in the child's best interest (see e.g. Matter of Justin H., 215 A.D.2d 180, 626 N.Y.S.2d 479;  Matter of Hatch v. Cortland County Dept. of Social Serv., 199 A.D.2d 765, 766, 605 N.Y.S.2d 428).

In the case at bar, the issue of continued visitation was not raised before the close of the dispositional hearing, and the evidence which was adduced at the hearing failed to establish that the subject child and P.J., who were 3 1/2 and 2 years old, respectively, at the time of the hearings, had developed a relationship such that continued visitation would be in the child's best interest.   Nevertheless, as the child and P.J. may have developed an affectionate relationship while this appeal has been pending, the issue of their continued visitation should be considered by the court hearing the adoption petition.

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