Matter of Nyshawn R.V.S. (Erica M v.

2016 NY Slip Op 8530, 145 A.D.3d 902, 43 N.Y.S.3d 497

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2016
• Docket: 2015-12350
• Status: Published

Opinion

Appeal by the father from an order of fact-finding and disposition of the Family Court, Suffolk County (Caren Loguercio, J.), dated October 23, 2015. The order, insofar as appealed from, after a hearing, found that the father abandoned the subject child, terminated his parental rights, and transferred guardianship and custody of the subject child to the petitioner Suffolk County Department of Social Services for the purpose of adoption.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

In September 2014, the Suffolk County Department of Social Services (hereinafter the DSS) filed a petition seeking to terminate the father’s parental rights on the ground of abandonment. After a hearing, the Family Court found that the father abandoned the subject child, terminated his parental rights, and transferred guardianship and custody of the child to the DSS for the purpose of adoption. The father appeals.

An order terminating parental rights may be granted where the petitioner has established, by clear and convincing evidence, that the parent abandoned the subject child for the six-month period before the petition was filed (see Social Services Law § 384-b [3] [g] [i]; [4] [b]; Matter of Annette B., 4 NY3d 509, 513 [2005]). “An intent to abandon a child is manifested by the parent’s ‘failure to visit the child or communicate with the child or the agency although able to do so and not prevented or discouraged from doing so by the agency’ ” (Matter of Tinisha J. [William J.], 135 AD3d 760, 761 [2016], quoting Matter of Julius P., 63 NY2d 477, 481 [1984]). The burden rests on the parent to maintain contact, and the agency need not show diligent efforts to encourage the parent to visit or communicate with the child (see Matter of Gabrielle HH., 1 NY3d 549, 550 [2003]; Matter of Julius P., 63 NY2d at 481; Matter of Xtacys Nayarie M. [Jose Ruben M.], 74 AD3d 970, 971 [2010]).

Here, the Family Court properly determined that the DSS established, by clear and convincing evidence, that the father abandoned the child by failing to visit or maintain contact with him, or the DSS, for the six-month period preceding the filing of the petition to terminate his parental rights (see Social Services Law § 384-b [5] [a], [b]; Matter of Samantha L.S. [Daniel S.], 134 AD3d 1128, 1129 [2015]; Matter of Jessica Leslie A., 61 AD3d 679 [2009]; Matter of Elizabeth Susanna R., 11 AD3d 619, 620 [2004]; Matter of Kerry J., 288 AD2d 221 [2001]). Contrary to the father’s contention, the testimony of the DSS’s witnesses, which the court credited, does not support a finding that, during the six months prior to the filing of the petition, the DSS did anything to prevent or discourage him from contacting the child (see Matter of Gabrielle HH., 1 NY3d at 550; Matter of Elizabeth Susanna R., 11 AD3d at 620). Accordingly, the court properly determined that the father abandoned the child.

Eng, P.J., Balkin, Sgroi and Barros, JJ., concur.