Opinion
July 14, 1994
Appeal from the Family Court of Broome County (Ray, J.).
All three of respondent's children had been adjudicated as neglected and placed in petitioner's custody and foster care. Respondent exercised supervised visitation through January 22, 1992 when he left New York without providing petitioner any means of contacting him. He ceased all communication with both petitioner and his children, and in September 1992 this proceeding was commenced to terminate his parental rights based on his failure to visit with the children or communicate with petitioner for more than six months. Following a fact-finding hearing at which respondent appeared and testified, Family Court sustained the petition, adjudicated the children to have been abandoned (Social Services Law § 384-b [a]) and terminated his parental rights.
On this appeal, respondent contends that the evidence was insufficient to establish an abandonment. We disagree. The record reveals that petitioner established by clear and convincing evidence that respondent failed to visit or communicate with his children or petitioner during the seven-month period immediately prior to the filing of the petition and for more than three months thereafter although able to do so and not prevented or discouraged from doing so by the agency (see, Social Services Law § 384-b [a]; Matter of Samantha V. [Richard W.], 200 A.D.2d 796; Matter of Gina RR. [Richard RR.], 197 A.D.2d 757; Matter of Anthony M., 195 A.D.2d 315). Respondent acknowledged that he left the State and deliberately concealed his whereabouts from petitioner and the children. He alleged only a singular surreptitious telephone call communicating with one of the three children, which even if accepted by Family Court was of such minimal and unsubstantial nature that it could not defeat the otherwise unchallenged proof of a total lack of contact establishing the abandonment (see, Matter of Corey L. v Martin L., 45 N.Y.2d 383; Matter of Gina RR. [Richard RR.], supra; Matter of Zagary George Bayne G. [Gregory G.], 185 A.D.2d 320, lv denied 80 N.Y.2d 760; Matter of Alexander V. [Alexander W.], 179 A.D.2d 913; Matter of Leabert V. [Hedley V.], 174 A.D.2d 883; Matter of Crawford, 153 A.D.2d 108). Clearly, respondent's failure to visit or communicate even while fully able evinced an intention to forego his parental rights and responsibilities (see, Matter of Cecelia A. [Odessa A.], 199 A.D.2d 582). The minimal inquiries to his mother about the children fail to demonstrate any real effort to stay in touch with the children let alone to exercise any parental rights and responsibilities.
Respondent testified that he called his mother in May 1992 while the children were at her house for a supervised visit, and that his mother placed his oldest child (then age 10) on the phone for 10 minutes outside the presence of the supervising caseworker. In an essentially one-sided conversation respondent instructed his son not to tell anyone about the call. While the testimony of respondent's mother confirmed the telephone call, Family Court failed to find that the alleged contact occurred.
We find no merit in the remaining contentions. The record reveals that respondent was provided with effective and meaningful legal representation (see, Family Ct Act § 262; Matter of Joseph H., 185 A.D.2d 682; Matter of Daryl S., 180 A.D.2d 639, appeal dismissed 79 N.Y.2d 1040), and that the interests of the children were appropriately represented by the Law Guardian whose opinion was properly considered by Family Court (see, Matter of Perry v. Perry, 194 A.D.2d 837; see also, Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117).
Mercure, J.P., White, Casey and Peters, JJ., concur. Ordered that the order is affirmed, without costs.