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Christie A. M. v. Herbert M.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 2, 2008

IN RE CHRISTIE A. M., AND ANOTHER, CHILDREN UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
v.
HERBERT M., RESPONDENT-APPELLANT,
THE CHILDREN'S AID SOCIETY, PETITIONER-RESPONDENT.

Orders of disposition, Family Court, Bronx County (Allen Alpert, J.), entered on or about December 13, 2007, insofar as appealed from as limited by the briefs, terminating respondent's parental rights to the subject children after a fact-finding determination of abandonment, and committing custody and guardianship of the children to petitioner agency and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.

With respect to the male child, the finding of abandonment is supported by clear and convincing, indeed undisputed, evidence that during the six-month period immediately preceding the filing of the petition, respondent, who at all relevant times has been serving a lengthy prison sentence, had no contact whatsoever with that child. With respect to the female child, while there was conflicting testimony as to when and how often respondent telephoned her, Family Court, crediting portions of the testimony of both respondent and the first foster parent, found that respondent telephoned at most once or twice a week during the first five or six weeks of the abandonment period, for a total of five to ten calls, after which the first foster parent, respondent's aunt, and then her successor, the aunt's daughter, stopped accepting respondent's collect calls from prison, and that respondent had no further contact with either the child or the agency during the abandonment period. Even if, contrary to Family Court's finding, we were to accept respondent's assertion that, unable to make telephone contact with the child, he wrote several letters to her, any such letter-writing, considered along with the five or ten phone calls, constituted contact too sporadic and insubstantial to avoid the presumption of abandonment (see Matter of Kerry J., 288 AD2d 221, 221-222 [2001]). Such letter-writing, however, does undermine respondent's claim that he was unable to contact the child after the foster parents began refusing his collect phone calls (see Matter of Anthony M., 195 AD2d 315, 315-316 [1993]).

We have considered respondent's other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081202

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