In this proceeding to terminate parental rights under Social Services Law § 384-b, Petitioner, the foster care agency SCO Family of Services ("SCO"), alleged that Respondent father Clint J., who is incarcerated, abandoned the subject child Jayquan J. SCO also alleged that under Domestic Relations Law § 111 (1)(d), Respondent's consent for Jayquan's adoption was not required. Based upon the evidence presented at the fact-finding hearing and a review of the court records on the underlying Family Court Act Article 10 child protective proceeding and related matters, the Court is dismissing the petition.

The Petition and Fact-Finding Hearing

SCO filed this petition on October 30, 2007. Beside the allegations against Respondent, the petition also alleged causes of action of abandonment and permanent neglect against Jayquan's mother, Becky C. Related petitions alleged the same causes of action against Becky C. with respect to her other children, Malaki C. and Deandre B., and also alleged that Malaki's father, William F., abandoned him. [*2]

The Court held an inquest against Becky C. and William F., and made a finding of abandonment against both based on clear and convincing evidence.^[FN1] It then adjourned the matter against Respondent so that the state Department of Correction could produce him for a fact-finding hearing.

SCO proceeded on both the abandonment and no consent required causes of action against Respondent. It offered Jayquan's birth certificate into evidence as Petitioner's Exhibit 1. The birth certificate showed that Jayquan was born on November 8, 2004, that Becky C. was his mother, and that his father was Respondent. Also, SCO asked the Court to take judicial notice of the filing date of October 30, 2007 as well as all of the proceedings and orders made on the underlying neglect proceeding.

Teresa Tucker, the SCO caseworker, testified that Jayquan has been in a non-kinship foster home since entering foster care; that Respondent had no contact with him in the six-month period preceding the filing of the petition; that the agency had not discouraged Respondent from visiting or contacting Jayquan; that Respondent had not sent any cards, gifts, or letters to Jayquan; and that no one had come forward on Respondent's behalf. Ms. Tucker also testified that going back to May 2006, when Jayquan first came into SCO's care, Respondent did not have any contact with the child or the agency and had paid no support.

Ms. Tucker further testified that beside Respondent's name being on Jayquan's birth certificate, Becky C. had also given the agency his name as the father. She said that SCO learned in February 2007 that respondent was incarcerated because that information was on an assessment form. Ms. Tucker also acknowledged that no one at SCO had provided Respondent with any contact information prior to the filing of the petition.

Respondent testified that he has been incarcerated for over three years on a robbery conviction. He is currently in the Elmira Correctional Facility. Before that he was in the Gouvernor Correctional Facility and before that he was in the Marcy Correctional Facility. He said that he lived with Becky C. in a shelter before Jayquan was born and then lived with her in another shelter for a period of time after Jayquan was born. They argued and split up. Respondent was eventually arrested on Christmas Eve 2005 and has been incarcerated ever since. He learned from Becky C. around June 2006 that Jayquan was in foster care. Respondent said that he told Becky C. that he wanted to get in touch with Jayquan either directly or through other individuals, but that he never got any addresses or contact information from the "foster people" and so did not know how to contact the New York City Administration for Children's Services ("ACS"). He said that he had no addresses or phone numbers for ACS caseworkers and that he wanted to send Jayquan clothing and cards but did not know where to send anything.

Sometime in 2006, Respondent said, he tried to find out where Jayquan was by writing to 330 Jay Street, the address of Kings County Family Court. Although he was unable to read or write at the time, he got the address of the courthouse by going to the prison law library, and a friend with a typewriter helped him send that letter and two more. Respondent said that he was trying arrange visits with Jayquan, but he never got a response to his letters. He did receive photos of Jayquan from an unknown source with the child's name on the back. The termination petition was the only set of documents that he ever received. He also said that he was never [*3]produced in court for any proceeding prior to October 2007.

Furthermore, Respondent said, none of his relatives was aware that Jayquan was in foster care. After June 2006, he never saw, spoke to, or heard from Becky C. again except for one response he got on June 27, 2007 to one of three letters he had sent to her at a shelter at 315 Bowery in Manhattan. In that letter, she wrote that ACS had Jayquan but Respondent said that he did not know how to get in touch with the agency. While he did know in 2006 that ACS had Jayquan, he did not know of any counseling services in prison that might be able to assist him in contacting ACS.Finally, Respondent said that he wrote regularly to his "old lady" Beverly Dobson but did not ask her how to contact ACS. Neither she nor his sister knew what was going on regarding Jayquan. He said that if he had an address he would have contacted Jayquan.

The Court Records

At the fact-finding hearing, SCO asked the Court to take judicial notice of the prior proceedings and orders made on the underlying neglect petition, docket number NN12108/06. Because this Court did not adjudicate that matter, it took extra care to examine that court file thoroughly. It was also necessary to review the cross-referenced court files on Jayquan's half-brother Malaki C., who was the subject of an Article 10 proceeding on docket number NN3051/06 and the termination proceeding that was running concurrently with this matter under docket number B27326/07. These records revealed the following:

Jayquan's neglect petition was filed on May 22, 2006. The respondent in that proceeding was not his mother, Becky C., but her godmother Roxanne L., who, according to the petition, obtained guardianship of Jayquan on docket number G1728/06. An examination of that file revealed that Roxanne L. filed a petition for guardianship of Jayquan on January 11, 2006 but that the petition was then dismissed without prejudice on March 7, 2006 due to her failure to appear. Apparently Jayquan continued to reside with her. On the neglect petition, ACS alleged that she was a person legally responsible for Jayquan's care, abused cocaine, and had no provisions for the child.

On Jayquan's neglect petition, despite the order of the previous judge — made at least twice — to send a notice of pendency to the non-respondent mother and a non-respondent father, as required by Family Court Act § 1035(d), there is nothing in the court file indicating that this was ever done. Moreover, the petition lists the father as UNKNOWN.

On the termination petition, SCO conflated the dates that Jayquan and Malaki entered foster care. The petition against Respondent stated in paragraph 6 that Jayquan was placed with the Commissioner of Social Services on February 3, 2006 under docket number NN12108/06 and subsequently was placed with SCO on May 23, 2006. Actually, it was Malaki who came into SCO's care on February 3, 2006, after he was remanded to ACS on docket number NN03051/06. This may be a simple typographical error, but as will be shown below, this is not the only time that SCO mixed up the names of the two children.

An inquest was held on December 6, 2006 and a finding of neglect was entered against [*4]Roxanne L. The dispositional order that was entered the same day placed Jayquan with the Commissioner until the next permanency hearing date of May 3, 2007. In the meantime, there had been a permanency hearing held on September 28 and November 30, 2006. Respondent was never sent notice of the proceeding and was not mentioned at all in the permanency report. Then, for the May 3, 2007 permanency hearing, Respondent was again not notified and was again not mentioned in the permanency report.

The third permanency hearing was held on November 2, 2007, just after the termination petition was filed, continued to December 20, 2007, and concluded on January 23, 2008. Respondent, who was by then at Marcy, was now notified of the proceeding and was mentioned in the October 5, 2007 permanency report, which states at p. 3: "[Caseworker] did a diligent search referral on 8/1/07 for the [birth mother] as well as Jayquan[ s] father (Clint [J.]) and Malaki[ s] father (William [F.]). CW also requested a welfare scan and shelter scan on 8/13/07. [Birth mother]'s whereabouts are still unknown and Clint [J.] is currently at Marcy Correctional Facility."

What then followed in the court files post-dates the filing of the termination petition but sheds light on the agency's dealings with Respondent and corroborates some aspects of his testimony:

The fourth permanency hearing was held on July 10, 2008. Although notice was sent to Respondent at the Gouvernor Correctional Facility, apparently he was not produced in court for this proceeding. The June 16, 2008 permanency report at pp. 3 and 5 contained similar language to the previous report about the caseworker's diligent search for Jayquan and Malaki's fathers, but then goes on to say: "[Caseworker] mailed out letters to Clint [J.] on 11/19/07, 1/16/08 and 5/29/08 informing him that his son Malaki [C.] (sic) is in foster care w/SCO Family of Services. Along with the letter of 5/29/08, the CW mailed out pictures to Clint [J.] of Jayquan [J.]" Page 3 of this report also stated: "Clint [J.] has contacted the agency via letter and reports that he is interested in planning for the return of Jayquan [J.] upon his release from prison. Clint [J.] is listed as the father on the birth certificate and is registered with the putative father registry as such. A putative father registry response was received on 11/23/07."

A November 16, 2007 letter from Respondent, writing from Marcy, was stamped received by this Court on November 26, 2007. Although the letter eventually found its way into the court file on this case, it was originally misdirected to the office of the clerk for Uniform Interstate Family Support Act proceedings. In the letter, Respondent states that he wishes to be present in court on December 16, 2007 for the termination proceeding. He was subsequently produced in court on March 3, 2008.

A letter from Respondent, writing from the Elmira Correctional Facility, dated August 18, 2008, and sent to the ACS offices at 330 Jay Street, opens: "I am writing to you at this time, since I was given the information that I had requested from the Facility Inmate Record Coordinator, as to the avenue to follow as to inform you of the following problems that I have faced in the past three months. I had received a summons to appear in court on or about 12/6/07. [*5]I was not taken to the court for said proceedings, nor did I have a court order to be produced in court on the given date. Moreover, when the letter that was received informing me that the date was calendared for 7/10/08, I had sent a copy to the superintendent, so as to notify him of this court date, and nothing was done. It is also a hardship in this facility for me to get access to the law library so that I can adequately prepare a reply to the documents that has been filed in this matter (sic)." He goes on to say that he has family members who would be willing to have custody of Jayquan until he is released.

Finally, Respondent was sent notice and the report for the December 11, 2008 permanency hearing, which was adjourned to and concluded on February 11, 2009. The report mentions him in similar language to the previous permanency report.

Legal Analysis

In order to establish abandonment in a termination proceeding, the foster care agency must prove by clear and convincing evidence that in the six-month period immediately preceding the filing of the petition, the parent "evinced 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 generally Matter of Julius P., 63 NY2d 477 (1984). The parent's subjective intent, unsupported by evidence of contact or communication, will not prevent a finding of abandonment, and the agency is not required to show that it made "diligent efforts" to encourage a parent to communicate with a child. SSL § 384-b (5)(b). An incarcerated parent is not relieved from the obligation to maintain contact with a child, but the agency may not discourage or prevent communication. See Matter of Annette B., 4 NY3d 509 (2005); Matter of Beauty B., 54 AD3d 330 (2nd Dept., 2008).

In causes of action alleging that a father's consent to an adoption is not required, Domestic Relations Law § 111(1)(d) requires the father to show by clear and convincing evidence that he "maintained substantial and continuous or repeated contact with the child as manifested by" the payment of child support and either regular visitation or regular communication with the child. See also Matter of Sharissa G.., 51 AD3d 1019 (2nd Dept., 2008). Again, incarceration does not relieve a father of the responsibility to support and visit or communicate with the child. Id. And as in the Social Services Law, a father's subjective intent to support and visit or communicate with the child will not prevent a determination against him unless there is evidence manifesting such intent, but the agency is not required to show that it made diligent efforts to encourage the father to perform these acts. DRL § 111(1)(d). If a father does establish his right to consent to the child's adoption, then the agency would have to prove by clear and convincing evidence that for a period of six months he "evince[d] an intent to forego his...parental rights" by failing to visit and communicate with the child or "the person having legal custody of the child, although able to do so[.]" DRL §111(2)(a); see also Matter of Taylor R., 290 AD2d 830 (3rd Dept., 2002).

Even though an agency is not required to make diligent efforts to encourage the parent/child relationship, even for an incarcerated parent, its complete lack of effort can still have the effect of discouraging the relationship. See Matter of Medina Amor S., 50 AD3d 8 (1st Dept., 2008); see also Matter of Reality Rashida J., 206 AD2d 315 (1st Dept., 1994). That is what [*6]happened here.

While Ms. Tucker, the SCO caseworker, was a credible witness, her testimony showed that the agency's treatment of Respondent was perfunctory; he was little more than a technicality that had be covered for the termination to go forward. Respondent, on the other hand, was not only credible, but his testimony was compelling and sincere. Also, it was corroborated on several points, particularly as to his interest in communicating with Jayquan, or at least finding out where the child was.

To recap: By the time Jayquan entered foster care, Respondent already had been incarcerated for several months and Jayquan was no longer living with his mother, with whom Respondent had barely any contact anyway. Jayquan had been left by his mother in the care of her godmother, who in turn petitioned for guardianship of the child. Respondent was never notified that Jayquan was the subject of an Article 10 proceeding, and was never notified of or produced for a permanency hearing, two having been held without his even being mentioned in a permanency report. His relatives did not know where the child was. Even though SCO knew as early as February 2007 that Respondent was incarcerated, it made no effort until August 2007, when it started gearing up for this termination proceeding, to search for him. When SCO finally did send letters to Respondent informing him of his son's whereabouts (apparently with the wrong child's name), it had already commenced the termination proceeding. And when Respondent attempted to find out information about Jayquan by writing letters addressed to the Family Court in Brooklyn, he did not receive a reply. What he did receive was a set of photographs of Jayquan (without any indication of who sent them) and the termination petition.

This case is distinguishable from Annette B. In that case, the Court of Appeals, affirming the Second Department's affirmance of an order of Orange County Family Court, 2 AD3d 721 (2nd Dept., 2003) said that despite the failure of the agency to notify the father of the underlying neglect proceeding, it was the father's own failure to inquire as to the whereabouts of the child, using the leads that he had, that supported an abandonment finding. The Court of Appeals found that the father's testimony about his inquiries was "brief, vague, and uncorroborated." 4 NY3d at 514.

But the Court of Appeals still left it within the discretion of a trial court to evaluate the efforts of a parent to locate or communicate with his or her child. As we have said, Respondent here did make efforts, limited as he was by prison, distance, and illiteracy, to make efforts to locate the child by sending letters to the courthouse and ACS expressing his wish to communicate with Jayquan and to be produced in court for any proceedings. These letters are part of the court record. He also wrote to Jayquan's mother three times, but she replied only once.

On the record here, the Court finds that SCO did not establish by clear and convincing evidence that Respondent abandoned Jayquan. The Court further finds that Respondent did establish by clear and convincing evidence that his consent to Jayquan's adoption would be required and that the agency did not show that he evinced an intent to forego his parental rights. Accordingly, the petition against Respondent is dismissed.

ENTER: [*7]

_____________________________________

ALAN BECKOFF, JFC

DATED:BROOKLYN, NEW YORK

SEPTEMBER 24, 2009