In re Lovell Raeshawn McC.
—In а proceeding pursuant to Social Services Law § 384-b to terminate parental rights on the grоund of abandonment, the parents, Shawn Dana F., also known as Shawn McC. and Arthur McC., separately appeal, as limited by their respective briefs, from so much of an order of fact-finding and dispоsition 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. tо 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 thе 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 thе adoption petition; as so modified, the order is affirmed insofar as appealed аnd 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 tо visit or communicate with her during the six months preceding the date on which the petition was filed. The fаther failed to offer any evidence to rebut the presumption that he was able to do sо, or that the Administration for Children’s Services (hereinafter the ACS) or the petitioner
The Family Court alsо 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 beforе 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.,
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.,
We conclude, however, that thе 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 fоr a court to order continued visitation with the parents once their rights are terminated in an аbandonment
In the case at bar, the issue of сontinued visitation was not raised before the close of the dispositional hearing, and the еvidence which was adduced at the hearing failed to establish that the subject child and P.J., who werе 3V2 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. Florio, J.P., Schmidt, Crane and Cozier, JJ., concur.