In re Brianna K.J.W.

Feb 4, 2005
Versions:15 A.D.3d 880
789 N.Y.S.2d 390
2005 N.Y. App. Div. LEXIS 1159

Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), entered December 18, 2003 pursuant to Social Services Law § 384-b. The order terminated respondent’s parental rights on the ground of abandonment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Present — Pigott, Jr., P.J., Green, Gorski, Martoche and Hayes, JJ.

Memorandum: Respondent appeals from an order terminating his 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 agency, although able to do so and not prevented or discouraged from doing so by the agency” (Social Services Law § 384-b [5] [a]). Petitioner established by clear and convincing evidence that respondent had no contact with either the child or petitioner during the six months prior to the filing of the abandonment petition (see § 384-b [3] [g]; [4] [b]), and such lack of contact “evinces his intent to forego his parental rights” (Matter of Gabrielle HH., 1 NY3d 549, 550 [2003]). Contrary to the contention of respondent, he was not precluded from presenting the defense that he was unable to visit or communicate with the child. Although respondent is correct that Family Court refused to permit his attorney to question a caseworker with respect to conduct of respondent that occurred outside the six-month abandonment period, the court properly allowed respondent’s attorney to elicit testimony concerning respondent’s ability and efforts to contact the foster parent and the caseworkers during the six-month abandonment period. Present — Pigott, Jr., P.J., Green, Gorski, Martoche and Hayes, JJ.