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child visitation


The Facts of the Case

On 20 December 1988, a boy was born, the herein subject child. On 17 January 1989, he came under the care and custody of petitioner-appellant. On 6 March 1991, the Child Welfare Agency (CWA) filed a petition to terminate the parental rights of the subject child’s natural parents on the grounds of abandonment and permanent neglect. A New York Family Lawyer said that on 9 July 1992, the mother who is not a party to the herein appeal, had her parental rights terminated on the ground of abandonment. Prior to the fact-finding hearing concerning the respondent father, the agency withdrew the allegations of permanent neglect and proceeded on the abandonment cause of action alone. Meanwhile, respondent father was arrested approximately one month after his son’s birth and remains incarcerated to date. It is undisputed that respondent father made no contact with his son or the agency between the date of his arrest and the filing of the petition more than two years later. Nonetheless, after a fact-finding hearing, the Family Court dismissed the petition on the grounds that respondent father proved that he did everything he could to locate his son; that petitioner discouraged contact between respondent father and his son; and that petitioner made no attempt to notify respondent father as to the whereabouts of his son. Thus, an appeal of the said order of the court followed.

The Ruling of the Court:

Here, petitioner proved by clear and convincing evidence that respondent father failed to communicate with the child or agency during the six month period immediately preceding the filing of the petition. Thus, a New York Custody Lawyer said the intent to forego parental rights is presumed unless evidence is offered to the contrary. To rebut the inference of abandonment, respondent father now has to prove that he was not unable to maintain contact with his son or that he was discouraged from doing so by the agency.

Firstly, the court finds that respondent father did not prove that his failure to contact his son was due to inability. Respondent father’s burden was to show that the asserted hardship in contacting his son so permeated his life that contact was not feasible. However, incarceration does not excuse a parent from establishing or maintaining contact with a child. Even if visits cannot be arranged, an incarcerated parent can maintain contact with his child through cards, letters or telephone calls. Respondent father’s excuse that he was unable to ascertain his son’s whereabouts is insufficient to rebut the presumption of abandonment. A Nassau County Family Lawyer said it must be noted that the subject child’s placement with petitioner occurred more than a month prior to respondent father’s incarceration; that following his incarceration, respondent father’s only serious efforts to locate his son were to write to the Child Welfare Agency in January 1990 and to the maternal grandmother of the subject child in November 1990. Clearly, respondent father did not make any real attempt to locate his son until nearly a year after he was incarcerated and gave up his search when he encountered the slightest obstacles. Thus, the court finds that respondent father’s efforts to locate his son did not demonstrate a sincere interest in retaining parental rights and are insufficient to negate a finding of abandonment.

Secondly, a Nassau County Custody Lawyer said the court finds that respondent father did not prove that the agency discouraged him from contacting his son. While respondent father claims that he was discouraged from ascertaining the whereabouts of his son as a result of the child being identified by petitioner and the CWA case record as having a father with a different last name, however, the record establishes that the CWA case record for the subject child is maintained under the natural mother’s name, and in his sole written inquiry to CWA, respondent father gave the mother’s name. The record establishes that if CWA had contacted petitioner to request information about the father of the subject child, the information would have been ascertainable under either name. Thus, the court finds that respondent father was not discouraged from locating his son as a direct result of the modification of his son’s name in the records of petitioner and CWA.

Lastly, the court finds that the lower the court erred in holding that petitioner was required to attempt to locate respondent father to inform him of the subject child’s whereabouts. Under the law, when proceeding on the ground of abandonment, an agency need not prove that it exercised diligent efforts to encourage and strengthen the parental relationship, including searching for a parent whose whereabouts are not known.

In sum, respondent father failed to rebut the inference of abandonment. Thus, the order of the court which dismissed the petition to terminate respondent father’s parental rights with respect to the subject child on the ground of abandonment is reversed, on the law and the facts; the petition is granted and the matter is remanded for a dispositional hearing, without costs.

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