SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1004 

CAF 11-02082 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF ANGELA N.S. 

--------------------------------------------- 

NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES, MEMORANDUM AND ORDER

PETITIONER-RESPONDENT; 

 

JOSHUA S., RESPONDENT-APPELLANT. 

PATRICIA M. MCGRATH, LOCKPORT, FOR RESPONDENT-APPELLANT.

SUSAN M. SUSSMAN, NIAGARA FALLS, FOR PETITIONER-RESPONDENT. 

THOMAS J. CASERTA, JR., ATTORNEY FOR THE CHILD, NIAGARA FALLS, FOR

ANGELA N.S. 

 

Appeal from an order of the Family Court, Niagara County (David

E. Seaman, J.), entered September 27, 2011 in a proceeding pursuant to

Social Services Law § 384-b. The order, among other things,

transferred respondent’s guardianship and custody rights of the

subject child to petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order terminating his parental

rights with respect to his daughter on the ground of abandonment,

respondent father contends that the order must be reversed because he

demonstrated that he was committed to parenting his daughter and that

his efforts in that regard were frustrated by petitioner. We reject

that contention. “A child is abandoned if his or her 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 [petitioner], although able to do so and not

prevented or discouraged from doing so by [petitioner]’ ” (Matter of

Joseph E., 16 AD3d 1148, 1148, quoting Social Services Law § 384-b [5]

[a]). A child is deemed abandoned when the parent engages in such

behavior “for the period of six months immediately prior to the date

on which the petition [for abandonment] is filed” (§ 384-b [4] [b];

see Matter of Michael B., 284 AD2d 946, 946; Matter of Christina W.,

273 AD2d 918, 918). “In the absence of evidence to the contrary, such

ability to visit and communicate shall be presumed” (§ 384-b [5] [a]). 

Here, it is undisputed that the father had no contact with the

child during the relevant six-month period, i.e., from September 19,

2009 to March 19, 2010, when the abandonment petition was filed. In
-2- 1004 

CAF 11-02082 

fact, the father admitted at the hearing that he had no contact with

the child since he left the residence of the child’s mother in July

2008 and moved to Ohio. Although the father testified that he spoke

regularly with the mother and asked about the child, the record

establishes that he made no attempts to visit the child, not even when

he returned several times to visit friends in the Niagara Falls area,

where the child resided. Even assuming, arguendo, that the father did

not realize that the child was in foster care until September 2009, as

he testified at the hearing, we note that he had previously been

served with a copy of the neglect petition and did not respond to it

or appear in court with respect to that proceeding. Additionally, the

father made no efforts to see the child at the mother’s house where he

purportedly believed the child was living.

We reject the father’s contention that his failure to contact the

child was justified because petitioner’s caseworker failed to return

numerous telephone calls he allegedly made seeking information about

the child. Although petitioner does not appear to have done anything

to facilitate contact between the father and the child, “petitioner

was not required to show that it made diligent efforts to encourage

[the father] to maintain contact with his daughter in order to prevail

on the abandonment petition” (Matter of Christina S., 251 AD2d 982,

983). We agree with the court that the father’s telephone calls to

petitioner’s office do not rise to the level of effort required “ ‘to

defeat an otherwise viable claim of abandonment’ ” (Matter of Maddison

B. [Kelly L.], 74 AD3d 1856, 1857). We also note that, although the

father was served with the abandonment petition in or about March

2010, he failed to appear in court until approximately 11 months

later, on the day that the evidentiary hearing was scheduled to

commence against the child’s mother. There is no reason apparent in

the record for the father’s 11-month delay in responding to the

abandonment petition.

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court