Opinion
CAF 02-01831.
November 21, 2003.
Appeal from an order of Family Court, Erie County (Rosa, J.), entered July 23, 2002, which adjudged that Antonio J. is an abandoned child, transferred the guardianship and custody rights of respondent to petitioner and authorized petitioner to consent to the adoption of the child.
David J. Pajak, Buffalo, for Respondent-Appellant.
David C. Schopp, Law Guardian, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel), for Antonio J.
Before: Present: Pigott, Jr., P.J., Green, Pine, Wisner, and Gorski, JJ.
MEMORANDUM AND ORDER
It is hereby Ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Family Court properly terminated the parental rights of respondent with respect to his son on the ground of abandonment ( see Social Services Law § 384-b [b]; Matter of Derrick J., 287 A.D.2d 503, lv denied 97 N.Y.2d 608; Matter of Anthony M., 195 A.D.2d 315). The child was born out of wedlock in 1991 and has been in foster care since December 1998. The present proceeding was commenced in March 2000 after the mother voluntarily surrendered her parental rights. Respondent has not seen the child since shortly before respondent's incarceration in December 1998, and respondent does not dispute that he failed to contact the child or petitioner during the six-month period immediately prior to the filing of the petition ( see § 384-b [5] [a]). The contention of respondent that the mother concealed the child's whereabouts from him is not supported by the record inasmuch as there was a complete absence of any contact between the mother and respondent during the relevant time period. Indeed, respondent's last contact with the mother prior to the filing of the petition was shortly before respondent was incarcerated. The testimony of respondent that he unsuccessfully tried to locate the mother and the child while incarcerated was not credited by the court, and that finding, "which turns almost entirely * * * on the assessment of the character and temperament of the parent, * * * must be accorded the greatest respect" ( Matter of Irene O., 38 N.Y.2d 776, 777). The burden rested on respondent to maintain contact with the child ( see Matter of Julius P., 63 N.Y.2d 477, 481), and thus we deem it irrelevant that the efforts of petitioner to locate respondent may have been thwarted by incorrect information provided by the mother.