Opinion
March 11, 1991
Appeal from the Surrogate's Court, Nassau County (Radigan, S.).
Ordered that the decrees are affirmed insofar as appealed from, without costs or disbursements.
The Surrogate's Court properly determined that the respondent, the putative father, had presented sufficient evidence to satisfactorily explain his failure to have maintained contact with his children while he was incarcerated. Under the circumstances, the respondent's failure to visit the children and to communicate with them was due to inability, and his attempts to maintain contact with the mother and children, both by writing to her directly and through his own mother, did not manifest an intent to forego his parental rights and obligations (see, Social Services Law § 384-b [a]; Matter of Julius P., 63 N.Y.2d 477, 481; Matter of Vincent Gerald C., 168 A.D.2d 679; Matter of Ulysses T., 87 A.D.2d 998, affd 66 N.Y.2d 773; see also, Matter of Wesley L., 72 A.D.2d 137, 143; Matter of Stella B., 130 Misc.2d 148). Therefore, the petitioner failed to demonstrate by clear and convincing proof that the respondent had abandoned his children within the meaning of Social Services Law § 384-b (5) (a) (see, Social Services Law § 384-b [g]). Bracken, J.P., Kooper, Harwood and Balletta, JJ., concur.