In re Erving BB., 111 A.D.3d 1102 (N.Y. App. Div. 2013). · Go Syfert
In re Erving BB., 111 A.D.3d 1102 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
8 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Kihona U. (Britian MM.) (nyappdiv, 2021-12-23)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited "see" Matter of Kihona U. (Britian MM.)
N.Y. App. Div. · 2021 · signal: see · confidence high
In that regard, "petitioner had no obligation to arrange visitation during the six-month period at issue" ( Matter of Tasha B. , 240 AD2d 778, 780 [1997]; see Matter of Erving BB. [Lynette EE.] , 111 AD3d 1102 , 1104 [2013]).
discussed Cited "see" Matter of Kayson R. (Christina S.)
N.Y. App. Div. · 2018 · signal: accord · confidence high
Respondent appeals. [FN2] Petitioner satisfied its initial burden by proving by clear and convincing evidence that respondent did not visit or communicate with the child, and had no regular or meaningful communication with petitioner about his welfare, during the six months immediately prior to the commencement of the abandonment proceeding, although she was "able to do so and not prevented or discouraged from doing so by . . . petitioner" ( Matter of Alec B. , 34 AD3d 1110, 1110-1111 [2006]; accord Matter of Erving BB. [Lynette EE.] , 111 AD3d 1102 , 1103 [2013]; see Social Services Law § 38…
discussed Cited "see" Matter of Colby II.
N.Y. App. Div. · 2016 · signal: see · confidence high
“A finding of abandonment is warranted when it is established by clear and convincing evidence that[,] during the six-month period immediately prior to the date of the filing of the petition, a parent evinces an intent to forego his [or her] parental rights as manifested by his [or her] failure to visit or communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by that agency” (Matter of Gabrielle HH., 306 AD2d 571, 572 [2003] [internal quotation marks and citations omitted], affd 1 NY3d 549 [2003]; see Matter of Erving BB. [Lynette EE.],…
discussed Cited "see" In re Dustin JJ.
N.Y. App. Div. · 2014 · signal: accord · confidence high
In this regard, “[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 ; accord Matter of Maria E. [Jermaine D.], 94 AD3d 1357, 1358 [2012]) — and once the parent’s failure to maintain contact is established, the burden shifts to 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 Erving BB. [Lynette EE.], 111 AD3d 1102 , 1103 [2013] [internal quotation marks and citation…
discussed Cited "see" In re Dustin JJ.
N.Y. App. Div. · 2014 · signal: accord · confidence high
In this regard, “[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 ; accord Matter of Maria E. [Jermaine D.], 94 AD3d 1357, 1358 [2012]) — and once the parent’s failure to maintain contact is established, the burden shifts to 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 Erving BB. [Lynette EE.], 111 AD3d 1102 , 1103 [2013] [internal quotation marks and citation…
Retrieving the full opinion text from the archive…
In the Matter of Erving BB., a Child Alleged to be Abandoned. Madison County Department of Social Services, Respondent Lynette EE.
Appellate Division of the Supreme Court of the State of New York.
Nov 21, 2013.
111 A.D.3d 1102
McCarthy.
Published
McCarthy, J.

Appeal from an order of the Family Court of Madison County (McDermott, J.), entered November 29, 2012, which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate Erving BB. to be an abandoned child, and terminated respondent’s parental rights.

When respondent found herself homeless in June 2011, she signed a voluntary placement agreement and placed her son (born in 1999) in petitioner’s custody. Respondent visited him once in July 2011. Based on respondent’s lack of contact with her son or petitioner after that visit, petitioner commenced this abandonment proceeding in March 2012. Following a hearing, Family Court found that respondent abandoned her son, and terminated her parental rights. Respondent appeals.

We affirm. 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]). The ability to visit and communicate is presumed absent evidence to the contrary (see Social Services Law § 384-b [5] [a]); “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]; see Matter of Gabriella I. [Jessica J.], 79 AD3d at 1318). Despite respondent’s intermittent homelessness, difficulties in arranging transportation, and lack of finances and accessible phone service, at some points during the six-month period she had housing and employment. Thus, Family Court found that it would not have been impossible or unfeasible for respondent to contact petitioner or her child at some time during that period (see Matter of Yvonne N., 16 AD3d 789, 791 [2005]; Matter of John Z., 209 AD2d 821, 822 [1994]). Accepting Family Court’s credibility determinations, respondent failed to meet her burden to show that petitioner prevented or discouraged her from visiting or communicating with petitioner or her son.

Unlike in a permanent neglect proceeding, in an abandonment proceeding petitioner is not required to prove that it[*1104] exercised diligent efforts to reunite the family or assist the parent in maintaining contact (see Social Services Law § 384-b [5] [b]; Matter of Lamar LL. [Loreal MM.], 86 AD3d 680, 681 [2011], lv denied 17 NY3d 712 [2011]; Matter of Kaitlyn E. [Lyndsay E.], 75 AD3d 695, 697 [2010]; compare Social Services Law § 384-b [7] [a], [f]). The only statutorily authorized disposition after a finding of abandonment is an order committing the child’s custody to petitioner; a suspended judgment is not an option (see Social Services Law § 384-b [3] [g]; compare Family Ct Act § 631 [permitting suspended judgment as an option after a finding of permanent neglect]). Thus, Family Court properly terminated respondent’s parental rights.

Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.