Opinion
CAF 03-01991.
March 18, 2005.
Appeal from an order of the Family Court, Herkimer County (Henry A. LaRaia, J.), entered August 25, 2003 in a proceeding pursuant to Social Services Law § 384-b. The order adjudged that respondent's child is an abandoned child and transferred the guardianship and custody of the child to petitioner.
Before: Pigott, Jr., P.J., Green, Gorski, Smith and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: This appeal brings up for review the determination of Family Court, made upon a fact-finding hearing, that respondent abandoned his child. We reject the contention of respondent that the determination is not supported by clear and convincing evidence. Respondent made no attempt to contact his daughter, or to learn the child's whereabouts or condition, for a period of six months prior to the filing of the petition, giving rise to a presumption of abandonment ( see Social Services Law § 384-b [a]; Matter of Alexander B., 277 AD2d 937; see generally Matter of Julius P., 63 NY2d 477, 481). Respondent's incarceration is not a defense to an abandonment petition ( see Matter of Ariel C., 248 AD2d 976, 976-977, lv denied 92 NY2d 801; Matter of Anthony M., 195 AD2d 315, 316). We reject the contention of respondent that his financial situation prevented him from contacting his daughter during the relevant period. The record establishes that he communicated by phone and mail with others during the same period and that he did not attempt to use any of the services that petitioner made available to incarcerated parents. Respondent failed to rebut the presumption of abandonment, and his expressions of subjective intent to care for the child at a future time do not preclude a finding of abandonment ( see Matter of Ulysses T., 87 AD2d 998, 999, affd 66 NY2d 773).