In re Joseph E.

Appellate Division of the Supreme Court of New York

In re Joseph E.

16 A.D.3d 1148, 791 N.Y.S.2d 760, 2005 N.Y. App. Div. LEXIS 2714

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 18, 2005

StatusPublished

Cited by9 cases

This text of 16 A.D.3d 1148 (In re Joseph E.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Joseph E., 16 A.D.3d 1148, 791 N.Y.S.2d 760, 2005 N.Y. App. Div. LEXIS 2714 (N.Y. Ct. App. 2005).

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Opinion

Appeal from an order of the Family Court, Herkimer County (Henry A. LaRaia, J), entered December 1, 2003 in a proceeding pursuant to Social Services Law § 384-b. The order adjudged that respondent’s child is an abandoned child and transferred the guardianship and custody of the child to petitioner.

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

Memorandum: 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 [1149]*1149that 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 AD2d 312, 313 [2000], lv denied 96 NY2d 710 [2001]; see also Matter of Taylor O.P., 303 AD2d 1024 [2003]; Matter of Jamella G., 291 AD2d 933, 934 [2002]). 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 AD2d 632, 633 [1997]; see Matter of Christina W., 273 AD2d 918 [2000]; Matter of Candice K., 245 AD2d 821, 822 [1997]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Lawton, JJ.

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Appeal from an order of the Family Court, Herkimer County (Henry A. LaRaia, J), entered December 1, 2003 in a proceeding pursuant to Social Services Law § 384-b. The order adjudged that respondent’s child is an abandoned child and transferred the guardianship and custody of the child to petitioner.

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

Memorandum: 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 [1149]*1149that 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 AD2d 312, 313 [2000], lv denied 96 NY2d 710 [2001]; see also Matter of Taylor O.P., 303 AD2d 1024 [2003]; Matter of Jamella G., 291 AD2d 933, 934 [2002]). 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 AD2d 632, 633 [1997]; see Matter of Christina W., 273 AD2d 918 [2000]; Matter of Candice K., 245 AD2d 821, 822 [1997]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Martoche and Lawton, JJ.

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16 A.D.3d 1148, 791 N.Y.S.2d 760, 2005 N.Y. App. Div. LEXIS 2714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-joseph-e-nyappdiv-2005.

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