MEMORANDUM AND ORDER
Appeal from an order of the Family Court of Broome County (Pines, J.), entered October 1, 2019, which granted petitioners application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be abandoned, and terminated respondents parental rights.
Respondent is the father of the subject child (born in 2016). When the child was born in December 2016, the father was incarcerated – with a then-anticipated release date of August 2020 – and was not aware of the childs birth or that he was the childs father. Three days after the childs birth, before she or the mother had left the hospital, the child was removed from the mothers care, with the mothers consent, and placed in petitioners custody based upon concerns of derivative neglect (see Family Ct Act § 1021).
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Respondents paternity was subsequently established in June 2017 and he was thereafter provided written notification that the child was in foster care and, as an identified resource, was further provided with copies of the childs permanency hearing reports and was subsequently able to attend two of the childs permanency hearings. Since the childs removal in December 2016, she has remained in petitioners custody in the continuous care of the foster parents, who have identified themselves as an adoptive resource.
In April 2019, petitioner commenced this proceeding seeking to terminate respondents parental rights on the ground of abandonment, alleging that, in the six months preceding its petition, respondent had no contact or communication with the child and no significant contact with petitioner, petitioners caseworker or the foster parents to inquire about the childs welfare, nor had he been prevented or discouraged from making such contact. Following a fact-finding hearing, Family Court determined that respondent had abandoned the child and terminated his parental rights, freeing the child for adoption. Respondent appeals, and we affirm.
Respondent contends that Family Court erred in determining that he had abandoned the child. We disagree. A parent may be determined to have abandoned a child and his or her parental rights terminated when, in the six months preceding the filing of the petition, the “parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency” (Social Services Law § 384–b [5][a]; see Matter of Damien D. [Ronald D.], 176 A.D.3d 1411, 1411, 111 N.Y.S.3d 442 [2019]; Matter of Kayson R. [Christina S.], 166 A.D.3d 1346, 1346, 88 N.Y.S.3d 626 [2018]). A parent, even one who is incarcerated, is presumed to be able to maintain contact with his or her child (see Matter of Damien D. [Ronald D.], 176 A.D.3d at 1411–1412, 111 N.Y.S.3d 442; Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d 1188, 1189, 51 N.Y.S.3d 240 [2017], lv denied 29 N.Y.3d 913, 2017 WL 2683227 [2017]). In turn, “[o]nce petitioner establishes that a parent failed to maintain sufficient contact with a child for the statutory period, the burden shifts to the parent to establish that he or she maintained sufficient contact, was unable to do so, or was discouraged or prevented from doing so by petitioner” (Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1190, 51 N.Y.S.3d 240 [internal quotation marks, ellipsis and citations omitted]; see Matter of Dakota W. [Kimberly X.], 189 A.D.3d 2004, 2007, 137 N.Y.S.3d 818 [2020]).
The testimony at the fact-finding hearing demonstrated that, in the six months preceding the subject petition, respondent made no contact with either the child, petitioners case manager, the caseworker for the foster care agency or the childs foster parents to inquire about the childs welfare. Contrary to respondents assertion, “petitioner was under no obligation to exercise diligent efforts to encourage respondent to establish a relationship with his child” (Matter of Maria E. [Jermaine D.], 94 A.D.3d 1357, 1358, 943 N.Y.S.2d 249 [2012]; see Matter of Gabriella I. [Jessica J.], 79 A.D.3d 1317, 1318, 912 N.Y.S.2d 763 [2010], lv denied 16 N.Y.3d 704, 2011 WL 500591 [2011]; Matter of Arianna SS., 275 A.D.2d 498, 499, 711 N.Y.S.2d 622 [2000]). Nevertheless, the case manager testified that she sent respondent letters notifying him that the child was in foster care and that he had certain rights and responsibilities with regard thereto and provided him with her contact information as well as that of the foster care agency.
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Despite this notification, the case manager, caseworker and the childs foster mother all reported that they had no contact of any kind with respondent in the six months preceding the filing of the instant petition. The foster mother confirmed that the child had not received any letters, cards, gifts or other electronic communications from respondent during the relevant statutory time period, and no evidence was presented that the case manager, caseworker or foster parents prevented or discouraged respondent from making such contact. Based on the foregoing, petitioner established, by clear and convincing evidence, its initial burden on the petition, shifting the burden to respondent to establish that he maintained sufficient contact with the child or was otherwise unable or prevented from doing so (see Matter of Hayden II. [Renee II. – Devan JJ.], 135 A.D.3d 997, 999, 22 N.Y.S.3d 658 [2016], lv denied 27 N.Y.3d 904, 2016 WL 1692071 [2016]).
In opposition, respondent testified on his own behalf and acknowledged that, in the six months preceding the petition, he had no contact whatsoever with the child; however, he averred that petitioner had not provided him with the necessary contact information for the case manager, the caseworker or the foster parents. This assertion, however, is belied by his own testimony, wherein he acknowledged not only having received petitioners letter notifying him that the child was in foster care, but also two permanency hearing reports regarding the child that also contained the requisite contact information. He also attended, along with his assigned counsel, two of the childs permanency hearings, the first of which was conducted in August 2018, nearly eight months prior to the filing of the instant petition. Additionally, despite his contention that he had not been provided the necessary contact information, in further self-contradictory fashion, he nevertheless testified that he had, in fact, sent the caseworker two letters during the relevant time period requesting, among other things, visitation with the child. Other than his self-serving and unsupported claims, however, he provided no proof that such letters were ever sent and the case manager and caseworker denied ever receiving same. Based on the foregoing, we find that Family Court was within its discretion to resolve these credibility issues against respondent. Moreover, even assuming that respondent had sent these two letters, such contact was “too infrequent, sporadic and insubstantial to defeat petitioners showing of abandonment” (Matter of Damien D. [Ronald D.], 176 A.D.3d at 1412, 111 N.Y.S.3d 442; see Matter of Colby II. [Chalmers JJ.], 140 A.D.3d 1484, 1485, 34 N.Y.S.3d 522 [2016]). Accordingly, having reviewed the evidence at the fact-finding hearing and giving the appropriate deference to Family Courts credibility determinations (see Matter of Gabriella I. [Jessica J.], 79 A.D.3d at 1319, 912 N.Y.S.2d 763), we find that there is ample proof in the record establishing that respondent abandoned the child by failing to make any effort to contact the child or inquire about her welfare during the relevant six-month period, and his parental rights were appropriately terminated (see Matter of Damien D. [Ronald D.], 176 A.D.3d at 1413, 111 N.Y.S.3d 442; Matter of Isaiah OO. [Benjamin PP.], 149 A.D.3d at 1191, 51 N.Y.S.3d 240; Matter of Dustin JJ. [Clyde KK.], 114 A.D.3d 1050, 1051, 981 N.Y.S.2d 177 [2014], lv denied 23 N.Y.3d 901, 2014 WL 1705650 [2014]).
ORDERED that the order is affirmed, without costs.
FOOTNOTES
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. The derivative neglect stems from the mothers failure to comply with petitioners recommendations that she obtain mental health counseling, stable housing and address her ongoing issues with substance abuse and domestic violence, with regard to a prior allegation of neglect involving one of her older children.
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. The childs caseworker testified that she also received a copy of this letter from petitioner and confirmed that it contained her contact information.
Egan Jr., J.
Garry, P.J., Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.