Opinion
July 16, 1981
Appeal from an order of the Family Court of Delaware County (Farley, J.), entered December 26, 1980, which dismissed a petition charging respondent with abandonment. At issue in the instant matter is whether the Delaware County Department of Social Services (hereinafter Department) sustained its burden of establishing the respondent mother's abandonment of her children pursuant to section 384-b Soc. Serv. of the Social Services Law. Paragraph (a) of subdivision 5 of that statute provides that: "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". We concur with the Family Court's finding that no such intention to abandon the children was demonstrated in the case at bar. The physical intimidation of the mother by her husband; his forceful eviction of her from the marital premises; his threats to her to desist from any attempts to visit the children; his denial of access to the children; her relative lack of sophistication and awareness of legal rights; the short period involved in the transfer of her children into foster care (six months and three days); the failure of the Department to formally advise her of the surrender of the children by the father to the Department and of proceedings held pursuant to section 358-a Soc. Serv. of the Social Services Law to place them in foster care, all lead to the conclusion that she neither intended to nor did, in fact, abandon them. Order affirmed, without costs. Sweeney, J.P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.