In re Gabriella I., 79 A.D.3d 1317 (N.Y. App. Div. 2010). · Go Syfert
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In re Gabriella I., 79 A.D.3d 1317 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
19 citation events (19 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Toteanna M. (Keyshana M.) (nyappdiv, 2015-06-16)
Top citers, strongest first. 12 distinct citers. How cited ↗
cited Cited as authority (rule) Matter of Toteanna M. (Keyshana M.)
N.Y. App. Div. · 2015 · confidence medium
Her “[s]poradic or insubstantial contact [was] insufficient to defeat a finding of abandonment” (Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [3d Dept 2010], lv denied 16 NY3d 704 [2011]).
discussed Cited as authority (rule) In re Erving BB. (2×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
Petitioner met its initial burden of establishing by clear and convincing evidence that respondent failed to visit or communicate with petitioner or her child during the six months immediately prior to the filing of the petition, although she was “able to do so and not prevented or discouraged from doing so by . . . petitioner” (Matter of Alec B., 34 AD3d 1110, 1110 [2006]; see Social Services Law § 384-b [5] [a]; Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]).
discussed Cited as authority (rule) In re Erving BB. (2×) also: Cited "see"
N.Y. App. Div. · 2013 · confidence medium
Petitioner met its initial burden of establishing by clear and convincing evidence that respondent failed to visit or communicate with petitioner or her child during the six months immediately prior to the filing of the petition, although she was “able to do so and not prevented or discouraged from doing so by . . . petitioner” (Matter of Alec B., 34 AD3d 1110, 1110 [2006]; see Social Services Law § 384-b [5] [a]; Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]).
discussed Cited as authority (rule) In re Maria E. (2×) also: Cited "see"
N.Y. App. Div. · 2012 · confidence medium
“A parent’s ability to maintain contact with his or her child is presumed — including a parent who is incarcerated” (Matter of Ryan Q. [Eric Q.], 90 AD3d at 1264 , citing Social Service Law § 384-b [2] [b] and Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]).
discussed Cited as authority (rule) In re Braidyn NN.
N.Y. App. Div. · 2011 · confidence medium
Petitioner’s submissions further reflect that, despite being under no duty to make diligent efforts to encourage the relationship between respondent and the child (see Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]; Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d 695, 697 [2010]), petitioner made numerous efforts toward that end, to no avail.
discussed Cited as authority (rule) In re Lily LL.
N.Y. App. Div. · 2011 · confidence medium
What is required is that it be established that respondent, during the relevant period, demonstrated an intent to forgo his parental obligations and, in effect, abandoned his child (see Social Services Law § 384-b [4] [b]; [5] [a]; Matter of Ryan I. [Laurie U.], 82 AD3d 1524, 1525 [2011]; Matter of Stephen UU. [Stephen VV.], 81 AD3d 1127, 1128 [2011], lv denied 17 NY3d 702 [2011]; Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]). 2 Parenthetically, we note that respondent was assigned counsel when he first appeared in connection with this petition …
discussed Cited as authority (rule) In re Leon CC.
N.Y. App. Div. · 2011 · confidence medium
We note that, although respondent claims to have made numerous telephone calls to the caseworker during the period in an attempt to establish a relationship with his son, the caseworker denied receiving any messages from respondent, and it is for Family Court to resolve such credibility disputes, and its decision in that regard is entitled to deference (see Matter of Dior H. [Rondu H.], 77 AD3d 1066, 1067 [2010]). 2 Moreover, respondent has not rebutted the presumption that, throughout this period, he had the ability to contact petitioner and visit with the child (see Social Services Law § 38…
discussed Cited as authority (rule) In re Lamar LL.
N.Y. App. Div. · 2011 · confidence medium
A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the petition (see Social Services Law § 384-b [4] [b]; [5] [a]; Matter of Stephen UU. [Stephen VV.], 81 AD3d 1127, 1128 [2011], Iv denied 17 NY3d 702 [2011]; Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], Iv denied 16 NY3d 704 [2011]).
discussed Cited as authority (rule) In re Stephen UU.
N.Y. App. Div. · 2011 · confidence medium
As for respondent’s claim that he did not abandon his children, petitioner was required to establish by clear and convincing evidence that respondent failed to contact, visit of communicate with the children or petitioner’s representatives during the six-month period prior to the petition being filed (see Social Services Law § 384-b [4] [b]; [5] [a]; Matter of Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010]; Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d 695, 696 [2010]).
discussed Cited "see" Matter of Zakariya HH. (Ahmed II.)
N.Y. App. Div. · 2021 · signal: see · confidence high
Contrary to respondent's 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 AD3d 1357, 1358 [2012]; see Matter of Gabriella I. [Jessica J.] , 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]; Matter of Arianna SS. , 275 AD2d 498, 499 [2000]).
discussed Cited "see" Matter of Kayson R. (Christina S.)
N.Y. App. Div. · 2018 · signal: accord · confidence high
"A parent's ability to visit and/or communicate with his or her child is presumed, and once a failure to do so is established, the burden is upon the parent to prove an inability to maintain contact or that he or she was prevented or discouraged from doing so by the petitioning agency" ( Matter of Jackie B. [Dennis B.] , 75 AD3d 692, 693 [2010] [citations omitted]; accord Matter of Gabriella I. [Jessica J.] , 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]).
discussed Cited "see" In re Ryan Q.
N.Y. App. Div. · 2011 · signal: see · confidence high
A finding that a child is abandoned may be made, and parental rights may be terminated, when, during the six-month period immediately 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 Gabriella I. [Jessica J.], 79 AD3d 1317, 1318 [2010], lv denied 16 NY3d 704 [2011]).
Retrieving the full opinion text from the archive…
In the Matter of Gabriella I., a Child Alleged to be Abandoned. Broome County Department of Social Services, Respondent Jessica J.
Appellate Division of the Supreme Court of the State of New York.
Dec 9, 2010.
79 A.D.3d 1317
Lahtinen.
Cited by 12 opinions  |  Published
Lahtinen, J.

Appeal from an order of the Family Court of Broome County (Charnetsky, J.), entered December 9, 2009, which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate Gabriella I. an abandoned child, and terminated respondent’s parental rights.

In early 2006, respondent, then 16 years old, gave birth to Gabriella I. Shortly thereafter, respondent ran away from her person in need of supervision placement, leaving the child at the facility. Fetitioner received emergency custody of the child and, once located, respondent consented to a finding of neglect. The child has remained continuously in foster care since April 2006. Fetitioner commenced this proceeding in February 2009 alleging abandonment as a ground to terminate respondent’s[*1318] parental rights. Family Court determined, after a hearing, that respondent had abandoned the child. The court then terminated her parental rights and freed the child for adoption. Respondent appeals.

The sole issue argued by respondent is that the proof was insufficient to establish that she abandoned the child. “We will not disturb a determination of abandonment if clear and convincing evidence supports the finding that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the date of the filing of the petition, although able to do so and not prevented or discouraged from doing so by the petitioner” (Matter of Alec B., 34 AD3d 1110, 1110 [2006] [citations omitted]; see Social Services Law § 384-b [5] [a]). “A parent’s ability to visit and/or communicate with his or her child is presumed, and once a failure to do so is established, the burden is upon the parent to prove an inability to maintain contact or that he or she was prevented or discouraged from doing so by the petitioning agency” (Matter of Jackie B. [Dennis B.], 75 AD3d 692, 693 [2010] [citations omitted]). “Within the context of an abandonment proceeding, petitioner is under no obligation to exercise diligent efforts to encourage a parent to establish a relationship with his or her child” (Matter of Devin XX., 20 AD3d 639, 640 [2005] [citation omitted]) and “[s]poradic or insubstantial contact is insufficient to defeat a finding of abandonment” (Matter of Michaela PP. [Derwood PP.], 72 AD3d 1430, 1430 [2010], Iv denied 15 NY3d 705 [2010] [internal quotation marks and citations omitted]).

The three caseworkers who were assigned to respondent’s case during the relevant six months from August 2008 to February 2009 testified that respondent made no visits to the child in that time. Respondent relocated from the Albany area to the City of Binghamton, Broome County in September 2008. She then moved to Louisiana in October 2008 and remained there for the duration of the relevant period. A caseworker assigned to respondent until early October 2008 recalled that respondent did not talk about the child or visitation in their conversations, but, when the caseworker specifically asked about visitation, respondent indicated that she was still interested. However, she failed to take any steps to make a visit and, instead, soon moved a significant distance from the child. Respondent did not provide caseworkers with advance notice of her move to Louisiana. Once she had moved, she did not supply information as to where or how she could be reached, did not request visitation, did not seek updates about the child, and failed to stay in contact with[*1319] the assigned caseworkers. The caseworkers related that they did nothing to discourage respondent from contacting the child or them. Although respondent claimed that she made some efforts to contact her caseworkers and exhibited an interest in the child, her testimony was at odds with petitioner’s proof and created a credibility issue. Family Court resolved the credibility issue in favor of petitioner’s witnesses and we accord considerable deference to Family Court’s credibility determination (see Matter of Jackie B. [Dennis B.], 75 AD3d at 694; Matter of Michaela PP. [Derwood PP.], 72 AD3d at 1431). The record contains ample proof to support Family Court’s conclusion that respondent abandoned the child.

Peters, J.P, Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, without costs.