In the Matter of Darrell J. D. J. (Anonymous). Dutchess County Department of Community and Family Services, respondent; Kenneth R. (Anonymous), appellant.
T. Keating, Dobbs Ferry, NY, for appellant.
Fedorchak, County Attorney, Poughkeepsie, NY (Susan L. Flynn
and Richard A. Ott of counsel), for respondent.
Jane Carr, Poughquag, NY, attorney for the child.
C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY,
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
from an order of fact-finding and disposition of the Family
Court, Dutchess County (Denise M. Watson, J.), dated April
15, 2016. The order, after a fact-finding hearing, found that
the father abandoned the subject child, terminated his
parental rights, and transferred guardianship and custody of
the child to the Dutchess County Department of Community and
Family Services for the purpose of adoption.
that the order of fact-finding and disposition is reversed,
on the facts, without costs or disbursements, the petition is
denied, and the proceeding is dismissed.
August 8, 2013, the mother gave birth to the subject child.
Darrell H. J. (hereinafter Darrell) was listed as the father
on the child's birth certificate. On or about December 1,
2014, the child came into the care of the Dutchess County
Department of Community and Family Services (hereinafter the
agency) after a neglect petition was filed against the
mother. The mother died on December 24, 2014. After she died,
it was determined that Darrell was not the biological father
of the child.
March 2015, Kenneth R. (hereinafter the father) filed a
petition seeking to be declared the father of the child. On
April 9, 2015, he obtained the results of a DNA test, which
confirmed that he was the biological father of the child. On
May 14, 2015, an order of filiation was entered, declaring
that the father is the child's father.
September 18, 2015, the agency filed a petition against the
father pursuant to Social Services Law § 384-b alleging
that he had abandoned the child, and seeking to terminate his
parental rights and to commit guardianship and custody of the
child to the agency. After a fact-finding hearing, the Family
Court found that the agency had established by clear and
convincing evidence that the father had abandoned the child
for a period in excess of six months prior to the filing of
the petition, terminated his parental rights, and transferred
guardianship and custody of the child to the agency for the
purpose of adoption. The father appeals.
order terminating parental rights may be granted where the
parent "abandoned [the] child for the period of six
months immediately prior to the date on which the petition is
filed in the court" (Social Services Law §
384-b[b]; see Matter of Annette B., 4 N.Y.3d 509,
513). Abandonment must be proven by clear and convincing
evidence (see Matter of Annette B., 4 N.Y.3d at 514;
Matter of Peteress Reighly B., 62 A.D.3d 695, 696).
the agency failed to establish, by clear and convincing
evidence, that during the relevant period of time the father
evinced an intent to forgo his parental rights and
obligations (see Matter of Julius P., 63 N.Y.2d 477,
481; Matter of Heaven A.A. [Tyrone W.], 130 A.D.3d
10, 14). The record demonstrates that once the father had
sufficient reason to believe he might be the father, he took
action to assert his paternity (cf. Matter of Jake W.E.
[Jonathan S.], 132 A.D.3d 990, 991) and sought to have
contact with the child, filed petitions for custody, visited
with the child on two occasions and attempted to visit on a
third occasion, and brought the child snacks, toys, and
clothes during the visits. In addition, the father spoke with
the caseworker on the phone on multiple occasions, paid child
support in the amount of $25 per month, and provided the
caseworker with information about where he was living, who he
was living with, and about a daycare where he would enroll
the child. Under these circumstances, the Family Court should
have denied the petition on the merits, and dismissed the
proceeding (see Matter of La'Asia S., 191
Misc.2d 28, 39 [Fam Ct, NY County]; cf. Matter of Tinisha
J. [William J.], 135 A.D.3d 760, 761; Matter of
Jeremiah Kwimea T., 10 A.D.3d 691, 692).
light of our determination, we need not address the