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In re Alliyah C.

Supreme Court of New York, First Department

January 30, 2014

In re Alliyah C., etc., and Others, Dependent Children Under The Age of Eighteen Years, etc., and Colleen C., etc., et al., Respondents-Appellants, St. Vincent's Services, Inc., Petitioner-Respondent.

Patricia W. Jellen, Eastchester, for Colleen C., appellant.

Geoffrey P. Berman, Larchmont, for Santiago C., appellant.

Magovern & Sclafani, New York (Joanna M. Roberson of counsel), for respondent.

Kenneth Walsh, New York, attorney for the child Alliyah C.

Steven N. Feinman, White Plains, attorney for the children Octavia C. and ZaMyiah C.

Gonzalez, P.J., Friedman, Renwick, Freedman, Richter, JJ.

Orders, Family Court, Bronx County (Jane Pearl, J.), entered on or about May 7, 2012, which upon a finding of permanent neglect by the respondent mother and abandonment by the respondent father, terminated respondents' parental rights to the subject children and committed custody and guardianship of the children to petitioner agency for the purpose of adoption, unanimously affirmed, without costs.

Clear and convincing evidence established that respondent father failed to visit or communicate with the children for the six-month period immediately preceding the filing of the petition, which gave rise to a presumption of abandonment (see Matter of Jasiaia Lew R. (Aylyn R.), 101 A.D.3d 568 [1st Dept 2012]). Petitioner agency provided credible evidence that during the relevant time period, respondent father never visited the children at the agency, and never contacted the agency concerning the children. Rather, the evidence showed that the father failed to respond to the agency's attempts to contact him. Moreover, during that time, although the father apparently drove the mother to the scheduled visits with the children at the agency, he did not go into the agency or participate in the visits. He explained that he chose not to participate in the visits because he did not get along with the mother's other two daughters who were present. Although the father now claims that he asked the mother to convey his love to the children and that he paid for the majority of the items that the mother brought to give to the children, including candy, juice, shoes, and toys, his claims are unsubstantiated. Moreover, the court's rejection of such testimony is entitled to deference (id. at 569).

As to the mother, the evidence supports the Family Court's finding that the agency demonstrated, by clear and convincing evidence, that it had exercised diligent efforts by scheduling visits and implementing a service plan that included referrals to individual mental health counseling and assistance in finding suitable housing. The finding of permanent neglect was supported by clear and convincing evidence that, despite such diligent efforts, the mother had failed to complete individual counseling or to obtain housing. Rather, the mother offered only multiple, uncorroborated and inconsistent excuses for her noncompliance (see e.g. Matter of Darryl Clayton T. [Adele L.], 95 A.D.3d 562, 562-563 [1st Dept 2012]; Matter of Marah B. [Lee D.], 95 A.D.3d 604, 605 [1st Dept 2012], lv denied 19 N.Y.3d 810 [2012]; Matter of Tanisha Shabazz A. [Latisha G.], 91 A.D.3d 482, 483 [1st Dept 2012]).

The finding that termination of respondents' parental rights was in the subject children's best interests was supported by a preponderance of the evidence (see Matter of Star Leslie W., 63 N.Y.2d 136, 143-144 [1984]; Matter of Anthony P. [Shanae P.], 84 A.D.3d 510, 511 [1st Dept 2011]; Matter of Roger Guerrero B., 56 A.D.3d 262, 262-263 [1st Dept 2008], lv denied 12 N.Y.3d 704 [2009]; Matter of Racquel Olivia M., 37 A.D.3d 279, 280 [1st Dept 2007], lv denied 8 N.Y.3d 812 [2007]).

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