                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     520996
________________________________

In the Matter of COLBY II.,
   Alleged to be an
   Abandoned Child.

ALBANY COUNTY DEPARTMENT FOR
   CHILDREN, YOUTH AND                      MEMORANDUM AND ORDER
   FAMILIES,
                    Respondent;

CHALMERS JJ.,
                    Appellant.
________________________________


Calendar Date:   April 22, 2016

Before:   Garry, J.P., Egan Jr., Clark and Mulvey, JJ.

                              __________


     Monique McBride, Albany, for appellant.

      Thomas Marcelle, County Attorney, Albany (Jeffrey G.
Kennedy of counsel), for respondent.

     Jeffrey S. Berkun, Albany, attorney for the child.

                              __________


Clark, J.

      Appeal from an order of the Family Court of Albany County
(Maney, J.), entered April 16, 2015, which granted petitioner's
application, in a proceeding pursuant to Social Services Law
§ 384-b, to adjudicate Colby II. to be an abandoned child, and
terminated respondent's parental rights.

      Respondent is the unwed father of a son (born in 2002), who
resided with his biological mother until August 2013, when he was
                               -2-                520996

removed from her custody and placed in the care and custody of
petitioner. On October 7, 2014, petitioner commenced this
proceeding to terminate respondent's parental rights on the
ground of abandonment.1 A fact-finding hearing was then held on
the issue of abandonment, and Family Court reserved decision.
The court subsequently determined that "a decision cannot be made
on [the] abandonment petition absent proof on the threshold issue
of whether respondent is a parent whose consent to an adoption
would be required" and reopened the fact-finding hearing for that
purpose (see Social Services Law § 384-b [4] [b]; Domestic
Relations Law § 111 [1] [d]). At the ensuing hearing, the
parties stipulated that respondent was "a consent father for the
child." Family Court thereafter determined that respondent
abandoned the child and terminated his parental rights.
Respondent appeals.

      We affirm. "A finding of abandonment is warranted when it
is established by clear and convincing evidence that[,] during
the six-month period immediately prior to the date of the filing
of the petition, a parent evinces an intent to forego his [or
her] parental rights as manifested by his [or her] failure to
visit or communicate with the child or agency, although able to
do so and not prevented or discouraged from doing so by that
agency" (Matter of Gabrielle HH., 306 AD2d 571, 572 [2003]
[internal quotation marks and citations omitted], affd 1 NY3d 549
[2003]; see Matter of Erving BB. [Lynette EE.], 111 AD3d 1102,
1103 [2013]). "In this regard, '[a] parent's ability to maintain
contact with his or her child is presumed – including a parent
who is incarcerated'" (Matter of Dustin JJ. [Clyde KK.], 114 AD3d
1050, 1050 [2014], lv denied 23 NY3d 901 [2014], quoting Matter
of Ryan Q. [Eric Q.], 90 AD3d 1263, 1264 [2011], lv denied 18
NY3d 809 [2012]).

      Here, petitioner produced evidence that, during the six
months preceding the filing of the petition, respondent visited
the child on two occasions, attended the child's permanency



    1
        The mother's parental rights were terminated in January
2015.
                              -3-                520996

hearing, twice applied for custody and visitation2 and left one
telephone message requesting contact with the child. Respondent
initiated no other contact with the child or petitioner. The
record further reveals that, although petitioner was not required
to prove that it exercised diligent efforts to assist respondent
in maintaining contact with the child (see Social Services Law
§ 384-b [5] [b]; Matter of Gabrielle HH., 1 NY3d 549, 550
[2003]), petitioner's caseworker visited respondent in jail to
discuss potential visits with the child and advise him that he
could send letters to the child through her or another
caseworker. The caseworker also twice attempted to return
respondent's phone message and sent him several letters.
However, respondent did not notify petitioner of his release from
jail, failed to keep petitioner apprised of his address and
telephone number and never followed up on his phone call to
petitioner, even though "it is a parent's obligation to maintain
contact with the child or the agency" (Matter of Crawford, 153
AD2d 108, 111 [1990]). "Respondent's sporadic[,] infrequent
[and] insubstantial contacts were insufficient to defeat
[petitioner's showing] of abandonment" (Matter of Jamal B.
[Johnny B.], 95 AD3d 1614, 1615-1616 [2012] [citations omitted],
lv denied 19 NY3d 812 [2012]; see Matter of Dustin JJ. [Clyde
KK.], 114 AD3d at 1051; Matter of Gabriel D. [Andrea D.], 68 AD3d
1505, 1506 [2009], lv denied 14 NY3d 703 [2010]).

      As petitioner established that respondent failed to
maintain contact with the child for the statutory period, the
burden shifted to respondent to demonstrate that he was unable to
maintain contact with the child or that he was discouraged or
prevented from doing so (see Matter of Dustin JJ. [Clyde KK.],
114 AD3d at 1050-1051; Matter of Carter A. [Jason A.], 111 AD3d
1181, 1183 [2013], lv denied 22 NY3d 862 [2014]; Matter of Jamal
B. [Johnny B.], 95 AD3d at 1616). Respondent failed to satisfy
this burden. Respondent's incarceration did not excuse his



    2
        One of these petitions was dismissed because respondent
was incarcerated and unable to take custody of the child at the
time, and the other petition was adjourned in October 2014
because of respondent's reincarceration.
                               -4-                520996

failure to contact petitioner or the child.3 He did not attempt
any form of communication with the child, including, as the
caseworker suggested, writing letters (see Matter of Hayden II.
[Renee II.—Devan JJ.], 135 AD3d 997, 999 [2016], lv denied 27
NY3d 904 [2016]; Matter of Le'Airra CC. [Christopher DD.], 79
AD3d 1203, 1204 [2010], lv denied 16 NY3d 706 [2011]).
Furthermore, contrary to respondent's contention, petitioner did
not discourage his contact with the child by informing him that
the child did not want to visit him in jail, as respondent
declined jail visits before learning of the child's wishes, and
the caseworker testified that she would have brought the child
for visits if respondent had made such a request. Moreover,
aside from leaving one phone message for petitioner and filing a
custody petition, respondent made no meaningful attempt to
maintain a relationship with the child during the roughly two
months that he was released from jail. Accordingly, as
respondent failed to establish that his incarceration or other
claimed difficulties "'so permeated his life as to make contact
with his child or petitioner during the relevant time period
infeasible'" (Matter of Leala T., 55 AD3d 1007, 1008 [2008],
quoting Matter of Alexander V., 179 AD2d 913, 915 [1992]
[brackets omitted]), the finding of abandonment was warranted
(see Matter of Dustin JJ. [Clyde KK.], 114 AD3d at 1051; Matter
of Ryan Q. [Eric Q.], 90 AD3d at 1264-1265).

      Further, Family Court did not abuse its discretion in
precluding respondent from introducing evidence of contact
outside of the six-month period (see Matter of Maliq M., 48 AD3d
1251, 1251 [2008], lv denied 10 NY3d 710 [2008]). Family Court
was not required to admit such evidence simply because it allowed
the parties to stipulate that, based on respondent's conduct
prior to the statutory period, respondent was a parent whose
consent was required for the child's adoption (see Domestic
Relations Law § 111 [1] [d]; Matter of William B., 47 AD3d 983,
984-985 [2008], lv denied 11 NY3d 702 [2008]). Contrary to
respondent's contention, the fact that the parties entered into


     3
        Although respondent was released after his incarceration
in April 2014, he was reincarcerated on the same charges in
September 2014 and ultimately pleaded guilty.
                              -5-                  520996

the stipulation after Family Court received proof on the issue of
abandonment, but before it rendered a determination on that
issue, does not require reversal (see generally Matter of Blake
I. [Richard H.–Neimiah I.], 136 AD3d 1190, 1191 [2016]).

      Finally, Family Court did not abuse its discretion by not
holding a dispositional hearing – which is not required in
proceedings such as this one – in view of respondent's prolonged
failure to contact the child or petitioner, as well as the length
of time that the child remained in petitioner's care and custody
(see Matter of Mahogany Z. [Wayne O.], 72 AD3d 1171, 1173 [2010],
lv denied 14 NY3d 714 [2010]; Matter of Chantelle TT., 281 AD2d
660, 662 [2001]). Respondent's remaining contentions, to the
extent not already addressed, have been examined and found to be
lacking in merit.

     Garry, J.P., Egan Jr. and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
