In re Carter A.

Summary

The New York Appellate Division, Third Department, affirmed an order terminating the father's parental rights after finding that he had abandoned his child under Social Services Law § 384-b. The court held that the father's sporadic visits and failure to communicate did not preclude abandonment, and that he failed to show that he was unable to maintain contact or was discouraged from doing so. The court also rejected arguments concerning a suspended judgment, the petition's allegations, and ineffective assistance of counsel.

Holdings

1. Petitioner established by clear and convincing evidence that respondent abandoned the child because, during the six-month period before the petition, he failed to visit or communicate with the child or petitioner despite being able to do so and not being prevented or discouraged from doing so.
2. Respondent's two visits did not preclude a finding of abandonment because they constituted sporadic, infrequent, and insubstantial contacts and were initiated by petitioner.
3. Respondent failed to meet his burden of proving that he was unable to maintain contact or was prevented or discouraged from doing so.
4. A suspended judgment is not an authorized disposition after a finding of abandonment.
5. Respondent's challenges to the petition's specificity and the timing of the proceeding were unpreserved, and counsel was not ineffective for failing to make dismissal motions that were unlikely to succeed.

Questions Presented

1. Whether petitioner established by clear and convincing evidence that respondent abandoned the child under Social Services Law § 384-b.
2. Whether respondent's two visits in December 2011 precluded a finding of abandonment or required recalculation of the statutory six-month period.
3. Whether respondent's incarceration, orders of protection, or the written-visitation-request requirement prevented or discouraged contact with the child.
4. Whether Family Court could impose a suspended judgment after finding abandonment.
5. Whether respondent's unpreserved challenges to the petition and his ineffective-assistance claim warranted reversal.

Disposition

affirmed