        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

685
CAF 12-01880
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF MIRANDA J., TREVOR J. AND
DOMINICK J.
-------------------------------------------
WAYNE COUNTY DEPARTMENT OF SOCIAL SERVICES,       MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

JEROMY J., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


ELIZABETH A. SAMMONS, WILLIAMSON, FOR RESPONDENT-APPELLANT.

GARY LEE BENNETT, LYONS, FOR PETITIONER-RESPONDENT.

SEAN D. LAIR, ATTORNEY FOR THE CHILDREN, SODUS.


     Appeal from an order of the Family Court, Wayne County (John B.
Nesbitt, J.), entered September 7, 2012 in proceedings pursuant to
Social Services Law § 384-b. The order, among other things,
transferred guardianship and custody of the subject children to
petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by dismissing the petition filed on
April 12, 2011 and as modified the order is affirmed without costs.

     Memorandum: In appeal No. 1, respondent father appeals from an
order that granted two abandonment petitions, the first filed on April
12, 2011 and the second filed on June 22, 2011, and thereby terminated
the father’s parental rights on the ground of abandonment. In appeal
No. 2, respondent mother appeals from an order that likewise granted
two abandonment petitions, also filed on those dates, and thereby
terminated her parental rights on the ground of abandonment. The
respective abandonment petitions against the father and the mother
(collectively, respondents) were considered by Family Court during a
single consolidated hearing.

     In both appeals, we conclude that the court properly granted the
two June 22, 2011 petitions and terminated the parental rights of
respondents upon determining that petitioner established by clear and
convincing evidence that respondents abandoned their children. Social
Services Law § 384-b (5) (a) provides that “a child is ‘abandoned’ by
his parent if such 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],
                                 -2-                           685
                                                         CAF 12-01880

although able to do so and not prevented or discouraged from doing so
by [petitioner].” Although respondents were prohibited from
contacting their children during the six months prior to the filing of
the June 22, 2011 abandonment petitions based on an order of
protection, it is well settled that “[t]he parent who has been
prohibited from direct contact with the child, in the child’s best
interest[s], continues to have an obligation to maintain contact with
the person having legal custody of the child” (Matter of Gabrielle
HH., 306 AD2d 571, 573, affd 1 NY3d 549; see Matter of Lucas B., 60
AD3d 1352, 1352). During the six-month period prior to the June 22,
2011 petitions, respondents’ sole contact with petitioner was at a
uniform case review meeting that had been arranged by petitioner.
Contrary to respondents’ contentions, that “ ‘insubstantial contact[]’
with petitioner . . . [is] insufficient to preclude a finding of
abandonment” (Matter of Christina W., 273 AD2d 918, 918; see Matter of
Jasmine J., 43 AD3d 1444, 1445; Matter of Loretta Lynn W., 149 AD2d
928, 928). Contrary to their further contentions, respondents failed
to meet their burden of demonstrating that “there were circumstances
rendering contact with [petitioner] infeasible,” or that petitioner
discouraged them from having contact (Matter of Regina A., 43 AD3d
725, 725; see Matter of Drevonne G. [Darrell G.], 96 AD3d 1348, 1349).

     We further conclude in both appeals, however, that the court
erred in granting the petitions filed April 12, 2011, and we therefore
modify the order in each appeal accordingly. The record establishes
that respondents contacted petitioner about the children numerous
times during October and November 2010, and petitioner therefore
failed to establish that respondents evinced an intent to forego their
parental rights and obligations during the six-month period
immediately prior to the filing of the April 12, 2011 petitions (cf.
Christina W., 273 AD2d at 918).

     Finally, we reject respondents’ contentions that they received
ineffective assistance of counsel. Respondents “failed to demonstrate
that [they were] prejudiced by [their respective] attorney[s’] alleged
ineffective assistance” (Matter of Sarah A., 60 AD3d 1293, 1294-1295;
see Matter of Michael C., 82 AD3d 1651, 1652, lv denied 17 NY3d 704).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
