Opinion
November 29, 1994
Appeal from the Family Court, New York County (Jeffry Gallet, J.).
With respect to its claim of permanent neglect against respondent mother, petitioner agency demonstrated by clear and convincing evidence, that it made diligent efforts to encourage her to overcome her drug addiction and to plan for the future of these now teenage children; however, the mother's response was both belated and inadequate (Social Services Law § 384-b [a], [f]).
With respect to its claim of abandonment against respondent father, respondent failed to rebut the statutory presumption that he was able to communicate with the children (Social Services Law § 384-b [a]), and his obligation to do so was relieved neither by his incarceration nor by any order preventing visitation (see, Matter of Charmaine T., 173 A.D.2d 625, 627). No order suspending contact with the children was ever presented to the court, and the law guardian denies that any such order exists.
Concur — Ellerin, J.P., Ross, Asch, Rubin and Williams, JJ.