In the Matter of Devin Xx, 97193.

• Decision Date: 07 July 2005
• Docket Number: 97193.
• Citation: 797 N.Y.S.2d 661,2005 NY Slip Op 05840,20 A.D.3d 639
• Parties: In the Matter of DEVIN XX., a Child Alleged to be Abandoned. CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; RANDOLPH XX., Appellant.
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 639

797 N.Y.S.2d 661

2005 NY Slip Op 05840

In the Matter of DEVIN XX., a Child Alleged to be Abandoned. CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; RANDOLPH XX., Appellant.

97193.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 7, 2005.

Appeal from an order of the Family Court of Chemung County (Buckley, J.), entered June 22, 2004, which granted petitioner's application, in a proceeding pursuant to Social Services Law § 384-b, to adjudicate respondent's child to be abandoned, and terminated respondent's parental rights.

Spain, J.

Devin was placed in foster care following his February 2003 birth upon his mother's surrender of her parental rights. Respondent, incarcerated at the time, was then informed by petitioner that his child had been born. The child has remained with the same foster family ever since. In January 2004, a petition was filed to terminate respondent's parental rights on the ground of abandonment. Following a fact-finding hearing, Family Court found that petitioner demonstrated, by clear and convincing evidence, that respondent had abandoned the child and terminated his parental rights. Respondent appeals.

We affirm. A judicial determination of abandonment will not be disturbed if clear and convincing evidence supports the finding that "during the six-month period immediately prior to the date of the filing of the petition, respondent failed to visit or communicate with the child or petitioner although able to do so, if not prevented or discouraged from doing so by petitioner" (Matter of Arianna SS., 275 AD2d 498, 499 [2000]). Within the context of an abandonment proceeding, petitioner is under no obligation to exercise diligent efforts to encourage a parent to establish a relationship with his or her child (see Matter of Yvonne N., 16 AD3d 789, 790 [2005]).

Here, the petition was filed on January 9, 2004 and, thus, the six-month measuring period commenced on July 9, 2003. During that time, respondent's only contact concerning the child was on December 30, 2003, during a telephone conversation with his caseworker in which he requested visitation. This solitary telephone call was insufficient to defeat petitioner's claim of abandonment (see Matter of Jovantay U., 298 AD2d 641, 642 [2002]). Respondent's contention that petitioner actively discouraged him from having meaningful contact with the child by neglecting to organize and implement a visitation program is equally without merit. Aside from the isolated request for visitation and custody, respondent — who has never seen the child — never inquired into the child's whereabouts or contacted the foster parents. Respondent also neglected to present any plan for supporting the child or to...