        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
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                                                         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
