No “Diligent Efforts” Duty in Social Services Law § 384-b Abandonment Proceedings; Valid Pro Se Waiver Requires a Searching Inquiry

1. Introduction

This case concerns the termination of a father’s parental rights on the ground of abandonment under Social Services Law § 384-b. The subject child (born 2019) entered foster care following a neglect matter involving the mother; the child was later placed in pre-adoptive foster care. The Schenectady County Department of Social Services (petitioner) thereafter pursued an abandonment theory against the father (appellant), alleging the father failed to maintain meaningful contact during the statutory six-month period preceding the filing of the abandonment petition.

Two practical issues framed the appeal: (1) whether the proof supported a finding of abandonment (including whether the father was able to contact/visit and whether petitioner prevented or discouraged contact), and (2) whether Family Court properly allowed the father to represent himself at the fact-finding hearing. The Third Department affirmed the termination (and dismissed the appeal from the nondispositional fact-finding order).

Timing note: The opinion describes the relevant period as “October 4, 2023 to April 4, 2023,” which appears to be a typographical inconsistency; the analysis nonetheless applies the standard six-month lookback period “immediately prior to the filing.”

2. Summary of the Opinion

The Third Department held that clear and convincing evidence supported abandonment. Crediting agency and foster-agency caseworkers, the court found the father had no in-person or virtual contact with the child during the relevant period, did not send letters or gifts, and did not meaningfully pursue weekday visitation after being told weekends were unavailable. Even if the father’s claimed isolated contacts were credited, the court characterized them as “sporadic and infrequent,” insufficient to defeat abandonment.

Once petitioner established the statutory noncontact, the burden shifted to the father to show inability or that petitioner prevented or discouraged contact. The father failed to meet that burden; a tense relationship with the agency did not equate to prevention or discouragement. The court also rejected the father’s argument that petitioner should have engaged in “diligent efforts” to facilitate contact, reiterating that no such obligation exists in abandonment proceedings.

Procedurally, the Third Department dismissed the appeal from the December 2024 fact-finding order as nonappealable, but reviewed the fact-finding determinations via the father’s appeal from the February 2025 dispositional order. Finally, the court found Family Court conducted an adequate “searching inquiry” before permitting the father to proceed pro se, and found no merit to the father’s claim of judicial bias.

3. Analysis

3.1 Precedents Cited

3.2 Legal Reasoning

• Step 1 — Agency’s prima facie case (clear and convincing evidence): The court accepted testimony that the father was informed of his visitation rights and contact information and nonetheless did not visit, communicate, or send letters/gifts during the statutory period, aside from limited administrative participation (a virtual service plan meeting) and an incidental email.
• Step 2 — Credibility and the appellate posture: Family Court credited the caseworkers and rejected the father’s inconsistent accounts of visits (including an asserted visit supposedly arranged by a caseworker who had retired before the claimed date). The Third Department deferred to those findings, a decisive move because abandonment often turns on whether contact actually occurred.
• Step 3 — “Sporadic and infrequent” contacts do not cure abandonment: The court added that even if the father’s alleged isolated visits were accepted, they were too insubstantial to defeat abandonment under established Third Department authority.
• Step 4 — Burden shifts; father fails to justify noncontact: With noncontact established, the father had to show inability to maintain contact or that petitioner prevented or discouraged contact. The record instead showed the father knew his rights, had contact information, and declined weekday visitation due to work schedule—insufficient to prove inability or agency interference.
• Step 5 — No “diligent efforts” requirement in abandonment: The father’s attempt to recast the case as an agency-failure-to-facilitate-visitation claim was rejected because abandonment doctrine focuses on the parent’s conduct; petitioner is not required to prove diligent efforts to strengthen the parent-child bond during the abandonment period.
• Step 6 — Pro se waiver upheld: The court found Family Court warned the father about the seriousness of termination, the disadvantages of self-representation against trained attorneys, the lack of special treatment, and the availability of standby counsel and later assignment of counsel—satisfying the “searching inquiry” requirement.
• Step 7 — Bias claim rejected: Adverse credibility findings and strong language in an order do not establish bias absent evidence of improper basis or predetermined outcome.

3.3 Impact

• Reinforces the abandonment/permanent-neglect distinction: Practitioners should not expect “diligent efforts” litigation—common in permanent neglect—to carry over into abandonment cases. This decision underscores that agencies can prevail on abandonment based on provable parental noncontact without proving affirmative facilitation measures.
• Elevates the importance of documentation and credible testimony: The agency’s ability to show notice of rights, contact info, and the absence of contact (and to rebut claimed visits) remains central. Conversely, parents contesting abandonment need organized, verifiable evidence of communication/visitation attempts and any agency obstruction.
• Clarifies pro se safeguards in high-stakes Family Court matters: Courts must build a clear record of the waiver colloquy. This opinion signals that advising of pitfalls, inequality against counsel, and the ability to request counsel later will generally sustain a waiver.
• Procedural guidance for appeals: The dismissal of the fact-finding appeal reiterates that counsel must appeal from the dispositional order (or ensure the correct appellate vehicle), while using it to bring up the fact-finding review.

4. Complex Concepts Simplified

• “Abandonment” (Social Services Law § 384-b): In this context, it means the parent did not meaningfully visit or communicate with the child (or agency) for the specified six-month period before the petition—despite being able to do so—and the agency did not block or discourage contact.
• “Clear and convincing evidence”: A high civil standard of proof—more than “more likely than not,” less than “beyond a reasonable doubt.” The evidence must be highly and substantially more probable to be true.
• “Burden shifts”: Once the agency proves the parent’s noncontact for the statutory period, the parent must affirmatively prove an excuse (inability) or interference (prevention/discouragement), or prove that sufficient contact actually occurred.
• “Sporadic and infrequent” contact: One-off or irregular contacts may be treated as too insubstantial to count as meaningful contact preventing an abandonment finding.
• “Diligent efforts”: A concept frequently associated with other grounds for termination (e.g., permanent neglect) requiring agencies to take active steps to strengthen the parent-child relationship. The Third Department reiterates that abandonment does not impose that obligation.
• “Proceeding pro se” and “searching inquiry”: A party may represent themselves only after the judge confirms—through careful questioning and warnings—that the party understands the risks and still voluntarily chooses self-representation.
• “Preservation”: Appellate courts often will not consider an argument unless it was timely raised in the trial court, giving the judge an opportunity to address it.

5. Conclusion

Matter of Wanye D. (Quincy D.) is a consolidation of two practical rules in New York termination practice: (1) abandonment under Social Services Law § 384-b turns on the parent’s failure to maintain contact—proved by clear and convincing evidence—with a burden shift to the parent, and the petitioner need not prove “diligent efforts” to facilitate contact; and (2) when a parent elects to proceed without counsel, Family Court must conduct a searching inquiry, but a well-developed colloquy will support a valid waiver. The decision’s broader significance lies in reinforcing doctrinal boundaries (abandonment versus other termination grounds), emphasizing credibility-centered proof, and highlighting record-making requirements for pro se waivers and appellate review.