In re Annette B.

Citation829 N.E.2d 661,4 N.Y.3d 509
PartiesIn the Matter of ANNETTE B. Orange County Department of Social Services, Respondent; Joseph B., Appellant.
Decision Date03 May 2005
CourtNew York Court of Appeals

Neal D. Futerfas, White Plains, for appellant.

Susan M. Damplo, Ardsley, for Annette B., respondent.

David Darwin, Acting County Attorney, Goshen (Stephen Toole and Peter R. Schwarz of counsel), for Orange County Department of Social Services, respondent.


R.S. SMITH, Judge.

The issue is whether there was legally sufficient evidence to support Family Court's finding, affirmed by the Appellate Division, that Joseph B. abandoned his daughter, Annette B. We hold that there was.

This case is difficult because, although Joseph received proper notice of this proceeding, the Department of Social Services (DSS) failed to give him notice of two previous, related proceedings in which he was entitled to notice by law. These were significant derelictions, and might have warranted Family Court in finding that there was no abandonment because the agency "prevented or discouraged" Joseph from communicating with Annette. But Family Court found, in substance, that Joseph's failure to communicate resulted from his own choice, not from the agency's failings, and the Appellate Division agreed. The affirmed finding is supported by the record.

Facts and Procedural History

Annette was born on August 22, 1991. The record does not indicate that Joseph was ever married to Annette's mother, Marissa R., or that Annette ever lived with him. In the first years of Annette's life, Joseph lived in Bellport, Long Island, and Annette with Marissa in Central Islip. Joseph testified that in those years he saw Annette every weekend.

At some point, apparently in 1996, Marissa and Annette moved from their home in Central Islip. Also in 1996, Joseph was arrested for an offense involving the sale of drugs. Joseph remained in prison through the time of the trial of this case in 2001, and admittedly had no contact with Annette after she moved away.

Joseph testified that he did not know where Marissa had taken Annette, and that he made three attempts to find out. He testified that he went to the Central Islip house and was told by the occupant that Marissa no longer lived there. He also testified that he spoke to Marissa's foster mother, Geneva L., who told him she did not know where Marissa had gone. Finally, he testified that, after he was in prison, he asked his mother to contact DSS on Long Island to ask where Annette was, and that she reported she could get no information. Joseph's testimony about these three inquiries contains little more detail than we have just recited; none of it is corroborated by any document, or by any other witness. There is no evidence that Joseph made any other attempt to contact Annette from 1996 on.

Marissa moved with Annette to Orange County where, in 1998, Annette came into the care of Orange County DSS as a result of an emergency child neglect removal. Family Court Act § 1035(d) requires that both parents be notified of such a removal proceeding. The record does not show that any notice was sent to Joseph, or that DSS made any effort to find out Joseph's address.

Marissa later surrendered her parental rights to Annette. The order approving the surrender is dated June 27, 2001. Joseph was entitled to notice of this second proceeding also (Social Services Law § 384-c), but none was sent to him.

DSS began the present proceeding to terminate Joseph's parental rights on August 15, 2001. This time, notice was sent to Joseph. A DSS caseworker testified that Joseph's address was found "[t]hrough Child Support Collection Unit." Nothing in the record explains why he could not have been located through the same source when the two previous proceedings were brought. Around the time this proceeding was begun, Joseph also received, through his mother, a letter from Geneva saying that Annette was in foster care.

At the hearing in this case, Joseph testified that he did not write to Annette while in prison because he did not know she was in foster care. He admitted, however, that he did know she was in foster care after he received notice of the present proceeding in August 2001, and that he had not written to her as of November 26, 2001, the date he testified.

Family Court found "by clear and convincing evidence" that Joseph had abandoned Annette, and ordered that Joseph's guardianship and custody rights be committed to DSS. The Appellate Division, with one Justice dissenting, affirmed. We granted leave to appeal, and now affirm.


An order "committing the guardianship and custody of a child," also known as a termination of parental rights, may be granted where the parent whose rights are at issue "abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court" (Social Services Law § 384-b [4][b]). Abandonment is defined in Social Services Law § 384-b (5), which provides:

"(a) For the purposes of this section, 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 agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.

"(b) The subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent, shall not preclude a determination that such parent has abandoned his or her child. In making such determination, the court shall not require a showing of diligent efforts, if any, by an authorized agency to...

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    ...burden of proving abandonment is on the presentment agency by a clear and convincing evidence standard (see Matter of Annette B., 4 N.Y.3d 509, 514, 796 N.Y.S.2d 569, 829 N.E.2d 661 ; Matter of Cheyenne S., 20 A.D.3d 748, 748–749, 798 N.Y.S.2d 269 ; Matter of Andrea A., 12 A.D.3d 991, 785 N......
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    • New York Supreme Court — Appellate Division
    • 1 Mayo 2015
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