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

542
CAF 14-00271
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF LUNDYN S.
--------------------------------------
CAYUGA COUNTY DEPARTMENT OF HEALTH AND            MEMORANDUM AND ORDER
HUMAN SERVICES, PETITIONER-RESPONDENT;

AL-RAHIM S., RESPONDENT-APPELLANT.


KARPINSKI, STAPLETON & TEHAN, P.C., AUBURN (ADAM H. VAN BUSKIRK OF
COUNSEL), FOR RESPONDENT-APPELLANT.

FREDERICK R. WESTPHAL, COUNTY ATTORNEY, AUBURN (DANIEL A. TESTA, III,
OF COUNSEL), FOR PETITIONER-RESPONDENT.

MICHELE R. DRISCOLL, ATTORNEY FOR THE CHILD, AUBURN.


     Appeal from an order of the Family Court, Cayuga County (Mark H.
Fandrich, A.J.), entered February 7, 2014 in a proceeding pursuant to
Social Services Law § 384-b. The order terminated the parental rights
of respondent.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to Social Services Law §
384-b, respondent father appeals from an order that, inter alia,
terminated his parental rights and placed the subject child in the
custody of petitioner. Contrary to the father’s contention,
petitioner established by clear and convincing evidence that he
“abandoned [the subject] child for the period of six months
immediately prior to the date on which the petition [was] filed” (§
384-b [4] [b]; see Matter of Annette B., 4 NY3d 509, 514, rearg denied
5 NY3d 783), and it is well settled that “[t]his lack of contact
evinces his intent to forego his parental rights” (Matter of Gabrielle
HH., 1 NY3d 549, 550; see § 384-b [5] [a]). Even assuming, arguendo,
that the father is correct that he visited the child once within a few
days after the six-month period commenced, we conclude that such
“insubstantial contact[ was] insufficient to defeat the claim of
abandonment” (Matter of Jamal B. [Johnny B.], 95 AD3d 1614, 1615-1616,
lv denied 19 NY3d 812; see Matter of Carter A. [Jason A.], 111 AD3d
1181, 1182-1183, lv denied 22 NY3d 862).

     We reject the father’s further contention that petitioner
discouraged contact between the father and the subject child.
Initially, we note that the father correctly concedes that, in this
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                                                         CAF 14-00271

abandonment proceeding, petitioner “was not ‘obligated to contact [the
father] and initiate efforts to encourage his parental relationship
with [his child]’ ” (Matter of Alexander B., 277 AD2d 937, 937; see
Social Services Law § 384-b [5] [b]; Gabrielle HH., 1 NY3d at 550).
Furthermore, the father failed to establish “that he was unable to
maintain contact with his [child], or that he was prevented or
discouraged from doing so by petitioner” (Matter of Christina S., 251
AD2d 982, 982; see Matter of Jackie B. [Dennis B.], 75 AD3d 692, 693;
Matter of Regina A., 43 AD3d 725, 725). The father’s contention that
he attempted to communicate with certain of petitioner’s
representatives who were not called as witnesses at the hearing raised
only a credibility issue that Family Court was entitled to resolve
against him (see Matter of Noah G. [Anthony G.], 118 AD3d 1355, 1355;
Matter of Rakim D.D.S., 50 AD3d 1521, 1522, lv denied 10 NY3d 717).

     We also reject the father’s contention that the court erred in
denying his request to award custody of the subject child to the
child’s paternal grandmother, instead awarding custody to petitioner
so that the child may be adopted by her foster parents. It is well
settled that, in the context of a dispositional hearing after the
termination of parental rights, “[a] nonparent relative of the child
does not have ‘a greater right to custody’ than the child’s foster
parents” (Matter of Matthew E. v Erie County Dept. of Social Servs.,
41 AD3d 1240, 1241). Furthermore, contrary to the father’s
contention, the child’s “blood relative does not take precedence over
a prospective adoptive parent selected by [petitioner], and the fact
that [the child’s grandmother] would be a good caretaker is not a
sufficient reason to remove the child from the only home she has ever
known and from a family with whom she had bonded” (Matter of Tiffany
Malika B., 215 AD2d 200, 201, lv denied 86 NY2d 707). Thus, we agree
with petitioner and the Attorney for the Child that it is in the
child’s best interests to award custody to petitioner (see Matter of
Donald W., 17 AD3d 728, 729-730, lv denied 5 NY3d 705; see generally
Matthew E., 41 AD3d at 1241-1242).

     We have considered the father’s remaining contentions and
conclude that they are without merit.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
