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

520
CAF 16-00122
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF JOHN F., JAMES F., AND
JANAE F.
--------------------------------------------     MEMORANDUM AND ORDER
COMMISSIONER OF ONTARIO COUNTY DEPARTMENT OF
SOCIAL SERVICES, PETITIONER-RESPONDENT;

JOHN F., JR., RESPONDENT-APPELLANT.


SUSAN GRAY JONES, CANANDAIGUA, FOR RESPONDENT-APPELLANT.

GARY L. CURTISS, COUNTY ATTORNEY, CANANDAIGUA (HOLLY A. ADAMS OF
COUNSEL), FOR PETITIONER-RESPONDENT.

SONALI R. SUVVARU, ATTORNEY FOR THE CHILDREN, CANANDAIGUA.


     Appeal from an order of the Family Court, Ontario County (Craig
J. Doran, J.), entered January 5, 2016 in a proceeding pursuant to
Social Services Law § 384-b. The order, among other things, adjudged
that respondent had abandoned the subject children.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Respondent father appeals from an order terminating
his parental rights on the ground of abandonment. We agree with the
father that petitioner failed to establish by clear and convincing
evidence that he abandoned the subject children (see generally Social
Services Law § 384-b [3] [g] [i]; [4] [b]). “A child is deemed
abandoned where, for the period six months immediately prior to the
filing of the petition for abandonment . . . , a 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
Azaleayanna S.G.-B. [Quaneesha S.G.], 141 AD3d 1105, 1105, quoting
§ 384-b [5] [a]; see Matter of Anthony C.S. [Joshua S.], 126 AD3d
1396, 1396-1397, lv denied 25 NY3d 911). Here, the evidence
established that the father, who was incarcerated for most of the six-
month period immediately prior to the filing of the petition,
contacted the children or petitioner every month during that period.
The father wrote letters to the children and called, met with, and
wrote letters to the children’s caseworker. We conclude that the
father’s contacts were not minimal, sporadic, or insubstantial (cf.
                                 -2-                           520
                                                         CAF 16-00122

Matter of Maddison B. [Kelly L.], 74 AD3d 1856, 1856-1857). Moreover,
during that period, the father filed a petition seeking custody or
visitation with the children, which indicates that he did not intend
to forego his parental rights (see Matter of Jeffrey M., 283 AD2d 974,
975). Although Family Court’s finding that the father failed to offer
a meaningful plan for the children’s future is relevant to a
termination proceeding based on permanent neglect (see § 384-b [7]
[a]), it is not relevant to a termination proceeding based on
abandonment (see generally Matter of Medina Amor S., 50 AD3d 8, 15, lv
denied 10 NY3d 709).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
